Insurance Australia Limited t/as NRMA Insurance v Perras
[2025] NSWPICMP 128
•27 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Perras [2025] NSWPICMP 128 |
CLAIMANT: | Sam Perras |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 27 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 13 March 2021; Medical Assessor (MA) determined the claimant’s disputed treatment was related to the injuries caused by the accident and was reasonable or necessary in the circumstances; dispute about treatment; Held – the Review Panel conducted its own examination and confirmed that the right shoulder surgery was reasonable and necessary in the circumstances; Briggs v IAG Limited trading as NRMA Insurance; Medical Assessment Certificate was confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Nelukshi Wijetunga, dated 23 March 2023. |
STATEMENT OF REASONS
INTRODUCTION
Sam Perras (Mr Perras), the claimant, was born in May 1967.
On 13 March 2021, Mr Perras was injured in a motor vehicle accident (the accident) while driving along Campbell Street in Sans Souci. He was travelling straight when a car from a side street came unexpectedly from his right, and the front of Mr Perras’ vehicle struck the passenger side of the other car. The other vehicle then spun and struck another car. Mr Perras does not remember any immediate contact between his body and the interior of his vehicle; however, he recalls that his seatbelt was tight across his right shoulder, and no airbags were deployed. Both police and ambulance services arrived at the scene, but Mr Perras declined assistance.
NRMA Insurance (the insurer) is the relevant insurer with the liability to pay any damages to Mr Pope under the Motor Accident Injuries Act 2017 (MAI Act).
Mr Perras requested a right shoulder arthroscopy (the proposed surgery) to address injuries from the accident, but on 17 March 2022, the insurer denied his treatment request.
Mr Perras disagreed with the insurer's decision and requested an internal review on 23 March 2022. The insurer's review, dated 20 April 2022, upheld the denial of the proposed surgery.
As a result, on 23 March 2022, Mr Perras sought a determination by the Personal Injury Commission (the Commission).
On 22 March 2023, Medical Assessor Wijetunga evaluated Mr Perras' case and issued a certificate on 23 March 2023. The Medical Assessor found that the proposed surgery was causally related to the motor accident, that it was reasonable and necessary, and that the treatment would improve Mr Perras' recovery.
Following the medical assessment, the insurer filed an application with the Commission under s 7.26 of the MAI Act to have the medical assessment reviewed by a Review Panel (the Panel) on the grounds that the medical assessment was incorrect in a material respect.
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Wijetunga, who assessed Mr Perras and issued a certificate dated 23 March 2023.
Medical Assessor Wijetunga medically examined Mr Perras on 22 March 2023. He referred to the history of the motor accident, the history of symptoms, and treatment before and following the motor accident. He also provided a summary of relevant medical documentation, detailed the current symptoms, and set out the current and proposed treatment.
Medical Assessor Wijetunga’s assessment of the causation and reasons were as follows:
“a. Treatment and Care – Causation
Mr Perras had a history of onset of right shoulder pain about 3 months prior to the subject accident, at which time, he had described a one month history. This prompted an ultrasound scan which reported on the 4 December 2020 that he had mild osteoarthritis in glenohumeral joint and acromioclavicular osteoarthritis with painful abduction suggestive of subacromial impingement. He subsequently underwent a steroid injection on the 17 December 2020 and there is no further history up until the time it was reported relative to the subject accident. Mr Perras reports that the right shoulder pain following the subject accident onset the following day. There is objective evidence that there was some pressure over the right shoulder joint which is reflected by burn marks over right shoulder from the seat belt. Additionally, three days after the accident he presented with reduced range of movement. This is a change from the findings stated on the time of his examination with Dr Pang on the 3 December 2020 which showed that although the pain was worse with abduction, that his active range of movement was ok. His previous episode of shoulder pain is consistent with the degenerative findings demonstrated on MRI which would take years to develop. There is no objective evidence that he had pre-existing findings of a SLAP lesion. The accident described involved a lateral force, such that he sustained an undisplaced fracture of the sternum and burn marks from the seatbelt. Additionally lateral force of the collision would have resulted in Mr Perras' arm being in resisted external rotation resulting in forced contraction on the long head of biceps tendon which would result in a torsional force on the posterior labrum and therefore it is plausible that the severity of the accident aggravated existing degenerative changes in the shoulder including the SLAP lesion. Therefore, the right shoulder is causally related to the subject accident, and the arthroscopic repair proposed by Professor Murrell is causally related to the right shoulder injury which most probably was aggravated by _the subject accident.
b. Treatment and Care - reasonable and necessary
Mr Perras has consulted a shoulder surgeon, who has reviewed the MRI findings and recommended an arthroscopic repair of the SLAP lesion. Given that it is for the injury causally related to the accident, this treatment is considered reasonable and necessary
c. Treatment and Care - improve recovery
The purpose of surgical repair is to improve recovery. Mr Perras has already returned to normal preinjury duties. However, it is plausible that shoulder surgery has been proposed to predominantly assist in improving function and symptoms and therefore improve recovery.”
Medical Assessor Wijetunga then certified that the proposed surgery was causally related to the motor accident, that it was reasonable and necessary, and that the treatment would improve Mr Perras’ recovery.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Wijetunga.
The insurer, however, lodged this application late, a fact which is not in dispute between the parties, and therefore, at the same time, the insurer also makes an application under clause 133 A of the Personal Injury Commission Rules 2021 (Rules) for an extension of time to lodge the review application.
On 12 June 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and convened this Panel to conduct the Review:
“43. Medical Assessor Wijetunga had the wrong clinical notes before her, relating to the wrong person and it is apparent that she considered these notes. I am satisfied that there is a reasonable cause to suspect that this erroneous information may have impacted upon the Medical Assessor’s reasoning and overall conclusions regarding treatment.
44. I am satisfied having regard to the particulars in the application that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.”
The review provisions provide that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the Personal Injury Commission Act 2020 (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.
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.
The Panel issued Directions to the parties dated 14 June 2024 and 1 August 2024, directing that the parties file and serve bundles of documents and indicating that it intended to re-examine Mr Perras on 29 August 2024.
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[1] His Honour Justice Wright stated at [35]:
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[2] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[2] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[3] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 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.
72. 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].
73. The second review panel did not address the question of whether, on the balance of probabilities, the accident caused the annular tear, even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[3] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
EVIDENCE BEFORE THE REVIEW PANEL
The following documents were submitted before the panel for review:
(a) the insurer’s submissions made to the President’s Delegate;
(b) claimant’s submissions – Application for Review;
(c) claimant’s submissions – WPI dispute;
(d) independent medical examiner (IME) report of Dr Drew Dixon;
(e) the President Delegate’s decision;
(f) insurer’s reply submissions made to Medical Assessor Nelukshi Wijetunga;
(g) certificate of Medical Assessor Nelukshi Wijetunga;
(h) Application for personal injury benefits;
(i) Liability Notice – benefits up to 26 weeks;
(j) Liability Notice – benefits after 26 weeks;
(k) request for internal review;
(l) internal review certificate;
(m) Certificate of fitness;
(n) MRI report of lumbar spine;
(o) MRI report of cervical spine;
(p) MRI report of right shoulder;
(q) ultrasound-guided cortisone injection report;
(r) referral for MRI right shoulder;
(s) referral to Professor George Murrell;
(t) Allied Health Recovery Request (AHHR) Plan 1 (physiotherapy);
(u) AHHR Plan 2 (physiotherapy);
(v) AHHR Plan 4 (physiotherapy);
(w) AHHR Plan 1 (exercise physiology);
(x) records of GP Dr Pete Pang;
(y) updated records of GP Dr Peter Pang;
(z) report of Associate Professor Ali Ghahreman;
(aa) report of Professor George Murrell;
(bb) expert report of radiologist Dr John Korber;
(cc) IPAR initial needs assessment report;
(dd) IPAR NSW compulsory third party (CTP)O progress reports;
(ee) IPAR-Case Closure report;
(ff) correspondence from NRMA, and
(gg) expert report of orthopaedic surgeon Dr Stephen Rimmer.
SUBMISSIONS
INSURER’S SUBMISSIONS DATED 21 DECEMBER 2023
Material error
Failed to actively engage with the substantial and clearly articulated arguments before her and the evidence that Mr Perras had a history of relevant and significant pre-accident pathology in the right shoulder
The insurer notes that Mr Perras has a significant pre-existing pathology to his right shoulder.
On 3 December 2020, Mr Perras consulted with his GP, Dr Peter Pang and complained of right shoulder pain that had started one month prior, was worse with movement and associated with disturbed sleep and reduced range of motion.
An ultrasound and X-ray of the shoulder on 4 December 2020 revealed osteoarthritis in the glenohumeral joint and acromioclavicular (AC) joint, subacromial bursitis, and subacromial impingement. On 7 December 2020, Mr Perras underwent a cortisone injection for treatment.
Medical Assessor Wijetunga queried the December 2020 attendances. Mr Perras, however, was unable to provide a response to ensure accuracy and procedural fairness. He advised that he "could not specifically recall this injury but reports that it is plausible. [emphasis added]”
Whilst Medical Assessor Wijetunga recorded that there is no "objective evidence of ongoing symptoms of the right shoulder pain till the date of accident [emphasis added]”, the clinical records also do not show objective evidence that Mr Perras was not experiencing continuing pain. The insurer notes that between December 2020 and the date of the accident, Mr Perras only had one attendance with Dr Pang. Additionally, Mr Perras was unable to provide clarity as to the extent of this pre-existing pathology.
Radiologist Dr John Korber, in his report dated 19 April 2022, reviewed the MRI of 14 January 2022 (AS) and recorded:
"The predominant finding is glenohumeral osteoarthritis with a posteriorly placed humeral head in relation to the glenoid, posterior labral tear associated with a para labral cyst as well as intra-articular cystic change presumably associated with the glenohumeral osteoarthritis. The glenoid is a little dysplastic, and the appearances are those of a posterior instability pattern. To that end the posterior labrum is larger than expected associated with the dysplastic glenoid. There is hypertrophy of the anterior labrum. There is indeed an unusual shape to the glenoid that is probably developmental.
Osteoarthritis is also seen in the acromioclavicular joint. [emphasis added]"
Dr Korber noted that Mr Perras first complained of right shoulder pain four days after the accident and recognised the significant pre-accident right shoulder history. Dr Korber added that, "Even without that history, I would regard the radiological findings as long-standing. [emphasis added]"
Overall, Dr Korber found:
"The imaging shows a posterior instability pattern. Paralabral cysts and osteoarthritis take a long time to develop. To this end, there has been a shoulder problem for some time. There is indeed an extensive labral tear. Overall, on the balance of probabilities, and given the pre- accident history, the findings preceded the accident. [emphasis added]"
Whilst, Medical Assessor Wijetunga has provided a summary of Dr Korber's report, she fails to consider his expert opinion. She gives no weight or consideration to his findings when reaching her conclusion.
The insurer submits that the findings of Dr Korber are significant to the dispute and the Medical Assessor's failure to address such information has materially impacted the findings of the dispute.
According to Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 145, there is a requirement and obligation of procedural fairness in decision-making. This imposes a positive duty on medical assessors to ensure their decisions include a detailed line of reasoning that acknowledges and responds to all substantial and clearly articulated arguments put forward by the parties.
The insurer submits that Medical Assessor Wijetunga has failed to provide a clearly articulated response as to why Mr Perras' right shoulder injuries are not attributable to his pre-existing conditions. Additionally, the Medical Assessor has failed to consider Mr Perras' inability to provide an accurate response regarding his pre-existing shoulder pathology, diminishing the right of procedural fairness.
Accordingly, the insurer submits the certificate is incorrect in a material respect and should be referred to a medical Review Panel.
Obvious inconsistencies
Neurosurgeon Dr Ali Ghahreman, in his letter dated 31 May 2021, recorded:
" .. . head hit the window and hit the windscreen. Since then, he has had severe and persistent neck pain and lower back pain ... he also has significant neck pain with radiation to the shoulders and trapezius. [emphasis added]"
Orthopaedic surgeon Professor George Murrell elicited a different history. His letter dated 21 February 2022 stated "He noted immediate pain in the shoulder. The pain has persisted."
However, during his assessment with Medical Assessor Wijetunga, Mr Perras reported:
" .. . he could not recall any onset of symptoms ... "
"He does not recall any immediate contact of his body with the interior of the vehicle."
"He reports awaking the following day with severe neck, lower back pain, with shooting right leg pain."
"He was reviewed by his previous treating surgeon [Dr Ghahreman on 31 October 2021]. At that time, he reports that he experiences right shoulder pain, along with right sided neck pain, and right sided lower back pain and right him pain ... "
"The right shoulder pain did improve with time in terms of pain level being less. However it remained constant. [emphasis added]"
Nevertheless, in the Medical Assessor's determination, she stated "[The claimant] reports that the right shoulder pain following the subject accident onset the following day. [emphasis added]" This of course is contradictory with Mr Perras' reporting to the Medical Assessor.
Medical Assessor Wijetunga did not query with the inconsistent reporting from Mr Perras. For example, whilst Mr Perras stated his right shoulder pain levels improved but remained constant, he actually advised the insurer's rehab providers in a medical case conference on 29 June 2021 that he no longer feels shoulder pain.
Medical Assessor Wijetunga did question the discrepancies between the range of motions assessed by orthopaedic surgeons Dr Drew Dixon and Dr Stephen Rimmer. However, Mr Perras was unable to provide any clarification. Medical Assessor Wijetunga did not address the inconsistent findings of the two experts.
Accordingly, the insurer submits the certificate is incorrect in a material respect and should be referred to a medical Panel.
Finding made on incorrect medical information
In providing her reasonings for her determination, Medical Assessor Wijetunga stated the following:
"There is objective evidence that there was some pressure over the right shoulder joint which is reflected by burn marks over right shoulder from the seat belt ... "
"The accident described involved a lateral force, such that he sustained an undisplaced fracture of the sternum and burn marks from the seatbelt. [emphasis added]"
In his application for medical assessment to determine treatment and care, Mr Perras submitted a St George Hospital discharge referral dated 13 March 2021 along with radiological reports of the same date. This discharge referral relates to Ms Eva Vasas, the insured in this matter, who sustained a sternal fracture, and a seatbelt burn mark over the right shoulder.
The insurer notes that the medical file of the Insured is clearly labelled with her name and personal details on top of every page.
At the scene of the subject accident, Mr Perras denied assistance from the ambulance and did not receive medical treatment from St George's Hospital. He did not report this to Medical Assessor Wijetunga.
During his assessment with Medical Assessor Wijetunga, Mr Perras reported pain in his right shoulder, neck, lower back and right hip. Mr Perras does not report sustaining a sternum fracture and a seatbelt burn to his right shoulder.
Medical Assessor Wijetunga has mistakenly relied on the St George Hospital discharge referral belonging to the Insured and has based her findings on such information. This is a significant error.
Accordingly, the insurer submits the certificate is incorrect in a material respect and should be referred to a medical review panel.
Provided an opinion based on a field outside of her scope of expertise
In her reasonings for her determination, Medical Assessor Wijetunga goes on to say:
"The accident described involved a lateral force, such that he sustained an undisplaced fracture of the sternum and burn marks from the seatbelt.
Additionally lateral force of the collision would have resulted in Mr Perras' arm being in resisted external rotation resulting in forced contraction on the long head of biceps tendon which would result in a torsional force on the posterior labrum and therefore, it is plausible that the severity of the accident aggravated existing degenerative changes in the shoulder including the SLAP lesion. Therefore, the right shoulder is causally related to the subject accident, and the arthroscopic repair proposed by Professor Murrell is causally related to the right shoulder injury which most probably was aggravated by the subject accident. [emphasis added]"
In addition to relying on incorrect medical information to form her determination, Medical Assessor Wijetunga provides an in-depth analysis of the biomechanics of the accident to support her opinion.
The insurer submits that by doing this, Medical Assessor Wijetunga has contradicted clause 8.5 of the Motor Accident Guidelines and has given evidence on a matter that is outside of her expertise. Medical Assessor Wijetunga is to provide her opinion on matters within her knowledge as an occupational physician, not a biomechanical engineer.
Additionally, whilst Medical Assessor Wijetunga has gone outside of her scope, she has done so with an incorrect description of the accident which in turn supports her determination that the arthroscopic labrum repair of the shoulder (SLAP) injury was plausible. Mr Perras was not hit laterally, rather, his impact was straight on, colliding with the side of the insured's vehicle.
Accordingly, the insurer submits the certificate is incorrect in a material respect and should be referred to a medical Review Panel.
MR PERRAS’ SUBMISSIONS, DATED 9 FEBRUARY 2024
Mr Perras argues that the application should be dismissed. He references his right shoulder arthroscopic stabilisation and rotator cuff repair, which took place on 29 August 2023, and was funded by the insurer.
This procedure occurred as a direct result of the certificate. Therefore, it is unreasonable to claim that the post-surgery condition of his shoulder is not causally linked to the accident, as the surgery would not have happened without the certificate.
MEDICAL EXAMINATION
Details of who attended the assessment
Mr Perras attended for Medical Review Panel re-examination on 13 November 2024 with Medical Assessors David Gorman and Les Barnsley at the Commission’s Medical Suites as arranged.
Noted that the report of Dr John Korber was supplied.
History
Pre-accident medical history and relevant personal details
Mr Perras is a 50-year-old man.
He lives in a house with his sister-in-law and his wife. He has two children aged 23 and 25.
He does not smoke or drink alcohol. He is right-hand dominant.
He worked as a train guard, started with Sydney Trains, and has remained there for about 19 years. He has been employed as a full-time train crew.
He had a period of three months off work following the subject accident, and then commenced a graduated return to work program back to work and returned to pre-injury duties after about nine months.
He recalls a soccer injury around the age of 12 to the right ankle. He reports intermittent pain at a frequency of about once a month since then.
He describes an injury at work, which resulted in a microdiscectomy at L3/4 about four years ago.
At that time, he described lower back pain, which extended as shooting pain mainly down the left side. He reports a significant improvement after treatment including physiotherapy and hydrotherapy. He recovered within a two year period.
He reports that he had a gastric bypass about 10 years ago.
The Medical Assessors raised with him his presentation to his GP in December 2020 with right shoulder pain. He stated that he did not recall this at all.
He reports that he was on antidepressants for a period of five years related to family issues. These were ceased about three years ago.
In the 12 months prior to the subject accident, he used to walk 4-5km a day, and he would mountain bike every weekend. He had lost weight.
He also restored "classic cars."
History of the motor accident
Mr Perras describes the accident on 13 March 2021, where he was driving an automatic SUV, a 2008 Ford Territory, with no other occupants. He reports travelling straight when a car from the right side of the street failed to give, which resulted in his vehicle T-boning the other vehicle. The offending vehicle spun and collided with another vehicle. He does not recall any immediate contact of his body with the interior of the vehicle. He recalls that the seatbelt was tight over his right shoulder, and he held the steering wheel tightly with his foot on the brake. No airbags were deployed. Both police and ambulance arrived. He self-extricated and went to the offending vehicle to attend to the driver. His vehicle was not driveable, and his car was written off. He reports that the front tyre had exploded, the radiator was steaming, and the chassis was cracked.
History of symptoms and treatment following the motor accident
Mr Perras reports waking the following day in the "foetal position" with severe neck and lower back pain, with shooting right leg pain. The right-sided neck pain was the most severe. His lower back pain on the right side radiating down the leg was also present.
He experienced right shoulder pain beginning the day after the accident. It remained and was particularly symptomatic if he used a brush cutter or tools. Any reaching caused problems. Using a hammer and chisel aggravated it.
He saw Professor Murrell about a year later for his shoulder who advised that he had a "tear" and that he was a candidate for surgery. He had an injection to his right shoulder in April 2021 which he believed was of assistance for a few months.
He then went on to have right shoulder arthroscopic surgery in August 2023. His recovery was slow. The biceps anchor came lose and he needed a revision operation.
He feels in retrospect that the surgery was not worth it. It had not "made a big enough difference”.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Perras reports that he had a lower gastrointestinal adhesion last year which required emergency surgery.
Current symptoms
Mr Perras’ main symptoms are from the right shoulder. It is anterior shoulder pain.
The shoulder has improved but he still is symptomatic.
If he uses a whipper-snipper he needs a neck strap to help support.
He has difficulty sleeping on that side.
His neck is much less symptomatic now.
Current and proposed treatment
Mr Perras takes Mobic on occasions. He also takes Panadol and Nurofen every six hours on a ‘as required’ basis.
He no longer undertakes physiotherapy treatment.
Clinical examination
General presentation
Mr Perras’ weight was 119. 7kg with his height being 184cm.
He moved easily around the examination area.
Upper extremities
There was mild deltoid wasting on the right side.
Mr Perras was tender over the gleno-humeral joint but not over the sterno-clavicular joint.
He demonstrated the following ranges of movement measured with the goniometer.
SHOULDER MOVEMENT
Right (degrees)
Left (degrees)
Flexion
80
160
Extension
60
80
Abduction
80
170
Adduction
30
50
Internal rotation
80
80
External rotation
70
70
Comments on consistency
Mr Perras was queried about the clinical notation in his clinical records from Dr Pang in December 2020 which reports that he presented with shoulder pain which had occurred for a month. He was advised that an ultrasound had been conducted at the time and he underwent a steroid injection. He could not specifically recall this presentation, but he did not require any further surgical review or physiotherapy. He underwent a cortisone injection on 17 December 2020. There is no further evidence of ongoing symptoms of right shoulder pain till the date of the accident.
The various previous assessments are outlined below. Dr Dickson and Dr Rimmer's medical assessments are five months apart and both show discrepancy in range of movements. Although Mr Perras was unable to explain this discrepancy and advised that he has always had difficulty with movement of his right shoulder since the accident.
Summary of relevant radiological and medical imaging and other investigations
MRI lumbar spine, 15 April 2021 – moderately large right sided disc extrusion at L5/S1 compressing the right S1 nerve root, small foraminal disc protrusion at L3/4 with mild impingement of left L3 nerve root, mild canal stenosis.
Ultrasound, 20 April 2021 – ultrasound guided cortison injection to the right subacromial bursa of the right shoulder.
MRI cervical spine, 27 May 2021 – no cervical fracture or epidural haematoma. No disc protrusion or neural compression. Marked desiccation of C5/6 disc with adjacent subchondral oedema. Bony bruising.
Facet joint injections, 20 July 2021 – facet joint injections to cervical spine.
Ultrasound and X-ray of right knee, 1 September 2021 – advanced patellofemoral compartment osteoarthritis with bone-on-bone contact. No significant findings on ultrasound.
MRI right shoulder, 14 January 2022 – extensive SLAP lesion extending to posterior inferior labrum with multiseptated posterior labral cyst seen at spinoglenoid notch. No denervation changes associated with the suprascapular nerve. Grade 4 chondrosis at the posterior inferior aspect of the glenoid, and there is modelling deformity of the glenoid, which could relate to an old fracture. Supraspinatus subscapularis infraspinatus tendinitis with some articular surface fraying at supraspinatus but no high-grade tear. Long head of biceps tendinosis. Hypertrophic acromioclavicular joint arthropathy. Subacromial subdeltoid bursal inflammation.
Diagnostic ultrasound, 21 February 2022 – demonstrates impingement and mild glenohumeral arthritis.
Pre-accident ultrasound of left wrist, 28 March 2018 – prominent synovial thickening in the tendon sheath of extensor compartment.
X-ray and ultrasound of right shoulder, 4 December 2020 – mild osteoarthritis inferior portion of the glenohumeral joint, mild acromioclavicular joint osteoarthritis. Ultrasound showed mild subacromial bursitis and painful abduction with bursal bunching suggestive of subacromial impingement.
Ultrasound-guided cortisone injection to the right shoulder, 17 December 2020 – demonstrates onset of right shoulder pain prior to the accident.
Determinations treatment and care – causation
Mr Perras had a history of onset of right shoulder pain about three months prior to the subject accident, at which time, he had described a one month history. This prompted an ultrasound scan which reported on the 4 December 2020 that he had mild osteoarthritis in glenohumeral joint and acromioclavicular osteoarthritis with painful abduction suggestive of subacromial impingement. He subsequently underwent a steroid injection on the 17 December 2020 and there is no further history up until the time it was reported relative to the subject accident.
The subject accident would have placed considerable posterior force on the right shoulder, enough to cause labral tearing. This therefore meets the criteria for causation that the accident could cause the injury to the labrum.
Specifically, the abrupt deceleration of the car would have forced his body forwards against the seatbelt, which pases over the right shoulder .
Three days after the accident, he had a reduced range of motion. Dr Pang, in contrast, before the accident on 3 December 2020, noted pain on abduction but a reasonable range of motion.
The reasonable range of motion in the shoulder pre accident would suggest there was no assessable impairment prior to the accident.
The Panel was satisfied that there were new symptoms and physical findings in the right shoulder following the accident and therefore concludes that on the balance of probabilities the accident did cause a labral injury to the right shoulder.
The Medical Assessors have taken into consideration Dr John Korber's report dated 19 April 2024.
He stated:
“The imaging shows a posterior instability pattern. Paralabral cysts and osteoarthritis take a long time to develop. To this end, there has been a shoulder problem for some time. There is indeed an extensive labral tear. Overall, on the balance of probabilities, and given the preaccident history, the findings preceded the accident. [emphasis added]”
The Medical Assessors agree that there were likely to be degenerative changes in the shoulder before the accident. However, this opinion of Dr Korber is made without assessment of the forces involved in the accident and the probability that they caused the labral tear and aggravation of these degenerative changes.
The Medical Assessors believe that the right shoulder injury is causally related to the subject accident, and, therefore, the arthroscopic repair proposed by Professor Murrell is causally related to the accident.
Treatment and care – reasonable and necessary
Mr Perras has consulted a shoulder surgeon, who has reviewed the MRI findings and recommended an arthroscopic repair of the SLAP lesion. Given that it is for an injury causally related to the accident, this treatment is considered reasonable and necessary
Treatment and care – improve recovery
The purpose of surgical repair is to improve recovery. Mr Perras has already returned to normal preinjury duties. The shoulder surgery has been proposed to predominantly assist in improving function and symptoms and, therefore, improve recovery.
DIAGNOSIS, CAUSATION AND CONSIDERATION
The Panel’s conclusion is that the right shoulder surgery, as referred by Mr Perras' orthopaedic surgeon, Professor George Murrell, relates to the injuries caused by the accident, is reasonable and necessary in the circumstances and will improve recovery.
CONCLUSION AND CERTIFICATION
For the above reasons, the Panel confirms the certificate issued by Medical Assessor Wijetunga of 23 March 2023
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