Insurance Australia Limited t/as NRMA Insurance v Salcedo
[2023] NSWPICMP 506
•10 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Salcedo [2023] NSWPICMP 506 |
| CLAIMANT: | Alejandro Salcedo |
| INSURER: | IAG Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Rhys Gray |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| DATE OF DECISION: | 10 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Assem dated 15 March 2022 who found the claimant had a whole person impairment (WPI) of 6% made up of 3% for the left shoulder and 3% for the right shoulder; the assessment of MA Assem was combined with an assessment of MA O’Neill dated 28 June 2021 of 5% WPI for injury to the claimants cervical spine and an assessment of MA Cameron of 0% for an injury to the claimant’s head giving a total of 11% WPI; claimant involved in a collision at a roundabout on 4 December 2014; discussion whether MA Assem and the Panel bound by an earlier certificate of MA Crane of 4 April 2016 rejected by the Panel as this is a hearing de novo; Panel not satisfied that there was referred pain from the claimant’s cervical spine to his shoulders; Panel was satisfied that the claimant had injured his left shoulder in the accident but at the time of assessment this injury had resolved; the Panel assessed the claimant as 0% WPI which, combined with the assessments of MA O’Neill and MA Cameron give a combined impairment of 5% WPI; Held – certificate of MA Assem revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the Certificate of Medical Assessor Assem dated 15 March 2022. 2. The following injuries caused by the accident and assessed by the Panel give rise to a permanent impairment of 0%: (a) left shoulder – soft tissue injury – resolved, and (b) left arm – soft tissue injury – resolved. 3. The following injuries were not caused by the accident: (a) right shoulder – soft tissue injury. 4. The Panel revokes the Combined Certificate of Medical Assessor Assem dated 25 March 2022 and issues a new Combined Certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment assessment of 5%: (a) Certificate of this Panel at 0% WPI (i) left shoulder – soft tissue injury, and (ii) left arm – soft tissue injury. (b) Certificate of Medical Assessor O’Neill dated 28 June 2021 for assessment of an injury to the claimant’s cervical spine at 5% whole person impairment. (c) Further Certificate of Medical Assessor Cameron dated 5 March 2017 for assessment of a head injury at 0% whole person impairment. 5. Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, the combined impairment is 5%. |
STATEMENT OF REASONS
INTRODUCTION
The insurer challenges the certificate of Medical Assessor Assem (the Medical Assessor) dated 15 March 2022, who assessed 3% whole person impairment (WPI) of Alejandro Salcedo’s (claimant) left shoulder and 3% WPI of his right shoulder.
Medical Assessor Assem issued a combined certificate on 25 March 2022 certifying that the claimant’s level of combined permanent impairment is 11%.
Amongst other things, the insurer submits that the Medical Assessor failed to provide a clear path of reasoning for finding that the claimant had sustained permanent impairment to his shoulders arising from his cervical spine injury.
Permanent Impairment disputes to be assessed
The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
(a) left shoulder – soft tissue injury,
(b) right shoulder – soft tissue injury, and
(c) left arm – soft tissue injury.
Background
By certificate dated 4 April 2016, Medical Assessor Crane assessed 5% WPI in respect of the claimant’s cervical spine and 0% for his lumbar spine.
Subsequent to Medical Assessor Crane’s assessment, the claimant obtained additional relevant information which, pursuant to s 62 of the Motor Accidents Compensation Act 2017 (the Act) the claimant submitted, was such as to be capable of having a material effect on the outcome of the previous assessment. Accordingly, the claimant sought that the matter be referred for further assessment.
In seeking that referral, the claimant relied on the following submissions;
(a) The application was made pursuant to s 62 of the Act on the grounds that the following additional relevant information about the claimant’s injury to the cervical spine had become available to him since lodging the Medical Assessment Service () 2A:
(i)reports of Dr Teychenne dated 29 March 2018 and 16 April 2018;
(ii)reports of Associate Professor van Gelder (neurosurgeon) dated 17 May 2018 and 12 October 2018;
(iii)MRI of the cervical spine dated 4 April 2018;
(iv)report of Dr Teychenne dated 18 May 2020, and
(v)MRI of the cervical spine dated 22 May 2020.
Leave was granted for further assessment of the claimant’s WPI. Consequently, this assessment came before Medical Assessor Assem.
The Medical Assessor, by way of a certificate dated 15 March 2022, found a total WPI of 6% for the claimant’s left and right shoulders which, when combined with an assessment of Medical Assessor O’Neill dated 28 June 2021 of 5% WPI for an injury to the claimant’s neck, and an assessment of Medical Assessor Cameron of 0% for an injury to the claimant’s head, amounted to 11% WPI.
The insurer has sought leave for review of the decision of the Medical Assessor Assem and that leave was granted by the Delegate of the Office of the President on 24 May 2022.
The accident
The claimant was involved in an accident on 4 March 2014. He had almost exited a roundabout when he was hit on the front passenger side of his vehicle by another car.
In the history provided to Medical Assessor O’Neill, the claimant said he could remember that the right side of his head hit the window and that his body went forward and back. He said he then had no recollection for a second or so. He said he then sat in the car checking his body. He got out of the car and had pain all over but particularly across his chest, at the neck and in the low back.
The claimant reported to Medical Assessor O’Neill that he went home and thought he sought medical attention from his general practitioner (GP) on the following day.
The insurer’s submissions
The insurer submits that the Medical Assessor has not considered all of the medical evidence before him as required by the Motor Accident Medical Assessor Permanent Impairment Guidelines (the Guidelines) in making his determination that the claimant sustained a soft tissue injury with pain referred to both shoulders causing a secondary restriction in shoulder movement.
The insurer submits that the Medical Assessor has not considered all of the relevant material including importantly, the GPs records and the certificate of Medical Assessor Crane dated 4 April 2016 as well as a left shoulder X-ray of 7 March 2014 and a report of Dr Rosenthal dated 11 September 2015. The insurer says that this is noting that the certificate of Medical Assessor Crane was issued approximately two years after the accident. The insurer notes that under the heading “Examination”, Medical Assessor Crane determined the following:
“Examination of the shoulders revealed no deformity or evidence of muscle wasting. Range of motion was equal and normal bilaterally as concerns flexion, extension, abduction, adduction, external and internal rotation. …”
The insurer submits that the Medical Assessor has applied an incorrect method in assessing the claimant’s injuries pursuant to the decision of Nguyen v The Motor Accidents Authority of New South Wales and Zurich Australian Insurance Limited [2011] NSWSC 351 noting the contemporaneous records. These records include the claimant’s GP records and the claimant’s personal injury claim form showing a direct injury to the shoulders. The insurer also further notes the X-ray carried out on the left shoulder on 7 March 2014 which was three days after the accident.
The insurer refers to the Guidelines and the American Medical Association Guides the Evaluation of Permanent Impairment, 4th Edition (AMA 4) and submits that the right shoulder should serve as a baseline measure being the contralateral uninjured joint. The insurer refers to clause 1.51 of the Guidelines which provides the following:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report”.
The insurer also refers to clause 1.52 of the Guidelines which provides the following:
“When using clause 1.51 (above), the Medical Assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 1.51 is used, clause 1.51 must be applied to each joint”.
The insurer submits that the examination findings from Medical Assessor Assem found the range of motion in both the right and left shoulder to be equal and therefore the insurer submits the WPI for the left shoulder would be 0%.
The insurer submits that the Medical Assessor does not provide reasoning to base a permanent WPI rating and does not provide any analysis of whether the restrictions in shoulder range of motion amounted to a permanent impairment.
The insurer submits that the Medical Assessor has also failed to address or comply with the following:
(a) in assessing range of motion, the Medical Assessor has not provided any reasoning as to whether there is an impairment and whether the impairment is permanent. Specifically, the Medical Assessor has not provided his reasonings as to his findings of permanent impairment to the right and left shoulder and how he has assessed the claimant at 5% upper extremity impairment (UEI) giving 3% WPI for both shoulders. He also does not provide any guidance as to his assessment using the combined values chart;
(b) the Medical Assessor has not provided any reasoning as to his consideration that the injuries sustained to both shoulders was permanent and how he reaches his assessment of 3% WPI for each shoulder in accordance with AMA 4;
(c) the Medical Assessor does not address whether any presenting restrictions are permanent, and have become static or well stabilised with or without medical treatment and are not likely to remit despite medical treatment;
(d) the Medical Assessor has not provided reasoning on the methodology used to determine impairment including the means of testing including whether a goniometer was used. Further, the insurer notes that in assessing the upper extremity, the Medical Assessor states that “active range of motion was relatively consistent on repeated testing and limited as follows …”. The Medical Assessor then sets out the range of motion measured for the left and right shoulders as being equal but does not provide any details on the actual mechanism of the testing. He also does not provide any detail as to what “relatively consistent means” noting that the Guidelines provide the following at 1.50.3:
“If the Medical Assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions”;
(e) further, the insurer notes that clauses 1.50.4 and 1.50.5 provide the following:
“If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.”
“If range of motion measures at examination cannot be used as a valid parameter of impairment evaluation, the Medical Assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”(f) the insurer submits that the Medical Assessor has not addressed how the loss of range of motion of the shoulders is consequent upon injuries to the cervical spine, and
(g) the insurer submits that the Medical Assessor has not provided reasons to support his determination and has not complied with the relevant guidelines in assessing permanent impairment.
The insurer submits that had the Medical Assessor assessed the claimant’s injuries correctly he would have assessed the claimant as having a 0% WPI to both shoulders and therefore the claimant’s WPI assessment in accordance with the certificate of Medical Assessor O’Neill is 5%.
The claimant’s submissions
The claimant says that the insurer relies on five errors in the Medical Assessor’s certificate and summarises these as follows:
(a) the Medical Assessor has not considered all of the evidence;
(b) the Medical Assessor disagrees with Medical Assessor Crane and fails to find injury to the left shoulder;
(c) when assessing range of movement in the (injured) left shoulder the Medical Assessor should deduct the impairment of the (uninjured) right shoulder;
(d) the Medical Assessor has not provided his reasonings as to how he assessed the claimant at 5% UEI giving 3% WPI for both shoulders, and
(e) the Medical Assessor has not set out his mechanism of testing the claimant’s range of motion in the shoulder.
Concerning the left shoulder X-ray on 7 March 2014 the claimant submits that this identifies:
“The glenohumeral and acromioclavicular joint and the rest of the osseous and soft tissue structures were within normal limits”.
The claimant submits that this X-ray was of little assistance to the Medical Assessor in respect of left shoulder injury. The claimant says that as the X-ray revealed that left shoulder was “within normal limits” then there is no evidence of injury to the left shoulder in the X-ray. The claimant disputes the insurer’s submission that the X-ray of 7 March 2014 is “clearly relevant”.
The claimant refers to the report of Dr Rosenthal where he comments at page 4 of his report of 11 September 2015:
“Cervical and left shoulder x-ray was done on 7 March 2014. The left shoulder was normal. There was disc space narrowing and degenerative changes in the cervical spine”. (claimant’s emphasis added)
The claimant then refers to page 7 of Dr Rosenthal’s report where he comments:
“Her [sic] shoulder stiffness is radiating from his neck and his neck and back were injured in the accident.” (claimant’s emphasis added)
The claimant then noted that at page 13, Dr Rosenthal concluded:
“…the restriction in shoulder movement is variable and does not rate a permanent impairment.”
The claimant refers to the submission of the insurer that:
“The Medical Assessor has not considered all of the medical evidence before him in determining that the claimant did not report an injury to his right or left shoulder as arising from the motor vehicle accident”.
The claimant says that this submission assumes the claimant did report an injury to his right or left shoulder. The claimant submits that there is no evidence he ever reported injury to his right or left shoulder. It is submitted that the claimant has consistently, however, reported pain in the shoulders. The personal injury claim form lists (under ‘Injury’):
“affected areas from injuries include head, neck, shoulders, back, left arm and hand, psychological sequelae.” (claimant’s emphasis added)
The claimant says that there is no opinion, other than that of Medical Assessor Crane, of injury to the left and/or right shoulder.
The claimant submits that the Medical Assessor has considered all of the evidence and in doing so could not be satisfied that there was injury to the shoulder.
The claimant deals with the question of whether the Medical Assessor and presumably the Panel, is bound by the earlier certificate of Medical Assessor Crane of 4 April 2016.
The claimant notes that the insurer’s submissions essentially cavil with the conclusion by Medical Assessor Crane that the left shoulder was injured in the motor vehicle accident. The claimant says that the Insurer relies on the certificate of Medical Assessor Crane which found soft tissue injury to the left shoulder. The claimant notes that the insurer’s submissions are silent about the provisions of s 62(2) of the Motor Accident Compensation Act (1999) which provides:
“A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency”.
The claimant submits that Medical Assessor Assem was not bound by the previous certificate of Medical Assessor Crane. The claimant submits that to the extent there is any inconsistency between the two, the certificate of Medical Assessor Assem prevails. An inconsistency between the two certificates does not constitute error. (The Panel notes however that with regard to the review application of the insurer, this is a hearing de novo).
The claimant submits that the basis of the insurer’s submissions appears to be that the claimant suffered “direct injury to his shoulders in the accident and therefore Nguyen’s case should not have been applied. The claimant says that the insurer has clarified that the claimant sustained a “direct injury to the left shoulder”.
The Medical Assessor concluded the claimant sustained a “Soft tissue injury with pain referred to both shoulders, causing a secondary restriction in shoulder movement”. The claimant says that the Medical Assessor set out his clear path of reasoning for his finding there was no direct injury to the shoulders. He commented:
“He did not report an injury to his right or left shoulder. He did not report an injury to his right or left arm. He complained of pain radiating to his shoulders from the cervical spine (pointing at the upper trapezii bilaterally). As a result there is a secondary restriction in shoulder motion”. The Panel notes that such a conclusion requires clinical assessment/correlation.
The claimant says that at [19] the Medical Assessor states:
“There was no evidence of an injury to his right or left shoulder. There was also no evidence of an injury to his upper extremities. He has pain referred to the upper trapezii, causing a secondary restriction in shoulder motion. He also has ‘pins and needles’ involving the third, fourth and fifth digits which do not correlate with the foraminal stenosis, causing possible encroachment at the C4, C5 and C6 nerve roots.”
The claimant submits that in accordance with the decision of Hall J in Nguyen, the Medical Assessor has found impairment of the shoulders to be directly related to the cervical spine.
The claimant reiterates that the Medical Assessor is not bound by the previous certificate of Medical Assessor Crane. The claimant submits that the Medical Assessor has not fallen into error in finding differently to Medical Assessor Crane and by failing to find injury to the left shoulder.
Going to the question of whether there is a contralateral uninjured joint, and if so, whether the range of motion in the shoulders should be 0%, the claimant notes that having found no direct injury to the shoulders, the Medical Assessor concluded that the claimant has sustained a:
“soft tissue injury with pain referred to both shoulders, causing a secondary restriction in shoulder movement” (claimants emphasis added).
Further, the claimant says that Medical Assessor Crane noted:
“He has a secondary restriction in shoulder motion due to pain arising from the cervical spine”. (claimant’s emphasis added)
The claimant submits that clause 1.51 of the Motor Accident Permanent Impairment Guidelines is therefore irrelevant.
The claimant submits there is no “contralateral uninjured joint” that the Medical Assessor could have used as a ‘baseline’.
Medical evidence
The claimant provided a medical report from Dr Shnier, radiologist 22 November 2021 commenting on scans and investigations undertaken of the claimant.
Dr Shnier said in summary;
“a. The cervical spine demonstrates widespread pre-existing degenerative intervertebral disc and apophyseal joint degeneration. As the claimant was asymptomatic prior to the MVA, it is more likely than not that the MVA aggravated this pre-existing condition. The claimant had CPPD (calcium pyrophosphate dihydrate deposition) disease at C1/2. This can cause neck pain. It however resolves on subsequent imaging.
(a) There is widespread advanced multilevel lumbar spondylotic change. As the claimant did not have significant symptoms prior to the MVA, it is more likely than not that this MVA aggravated this pre-existing degenerative condition. The disc herniation at L5/S1 is shown on the CT to have some calcification around part of its margin and is likely longstanding.
(b) There is some degenerative change of a mild degree in the thoracic spine.
(c) There is no sequelae of previous C3/4 fracture which is presumed to have healed prior to the accident.”
Dr Korber, radiologist completed a report on 5 May 2021. He reviewed all of the radiological images. After reviewing all of the radiological images, Dr Korber concluded that there was evidence of calcium pyrophosphate deposition (CPPD) disease causing calcification of the transverse ligament of the dens but there was no evidence of a fracture or focal significant disc herniation at any level and the changes were degenerative. He believed that it was certainly possible that the claimant could have aggravated a pre-existing condition and perhaps also exacerbated changes of crystal arthropathy in the neck. The doctor said that this can cause severe headaches and neck pain that require clinical correlation. Given the severe changes, particularly at the left C3/4 and C4/5 level, the doctor said that it is possible that the claimant could have aggravated the pre-existing condition. The previous fracture at C3/4 has healed without any residual deformity and was said by the Medical Assessor not to play any obvious part in the current imaging.
Medical Assessor Assem provided a certificate of 9 March 2022.
Medical Assessor Assem commented that the claimant had experienced intermittent pins and needles involving the third and fourth digits in both hands since the motor vehicle accident. The symptoms at the time of examination were more intense and constant.
The claimant complained of pain radiating to his shoulders from the cervical spine, pointing at the upper trapezii bilaterally. As a result, there was said to be a secondary restriction in shoulder motion.
On examination, cervical movements were normal in flexion. Extension was reduced to half normal range.
Rotation to the right was half normal range compared to three quarters of normal range on the left. Lateral flexion to the right was one quarter of normal range, accompanied by a sharp shooting pain to the vertex of his skull and three quarters of normal range on the left.
His upper limb reflexes were symmetrically reduced. Although he reported pins and needles involving the third, fourth and fifth digits bilaterally, there was a global reduction in sensation to his left hand compared to the right to light touch and pin prick.
Active range of motion of the shoulders was said to be relatively consistent on repeated testing and limited as follows:
Shoulder Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
130o to 140o
130o to 140o
Extension
50o
50o
Adduction
40o
40o
Abduction
130o to 140o
130o to 140o
Internal Rotation
80o
80o
External Rotation
60o
60o
With respect to assessment of WPI, the Medical Assessor commented on the assessments of Medical Assessor Crane and Medical Assessor O’Neill saying;
“Medical Assessor O’Neill completed a report on 28 June 2021. He accepted a soft tissue cervical spine and awarded a DRE Cervicothoracic Category II 5% whole person impairment. He noted the following documents for further assessment:
I note the Certificate of 4 April 2016 by Medical Assessor Crane. He stated that ‘contemporaneous documentation conferred causation injury to the cervical spine with x-ray and CT of the cervical spine on 7 and 12 March 2014, respectively. The lumbar spine was not documented as any problem until a CT on 16 April 2014’. Medical Assessor Crane awarded 5% WPI for the cervical spine and zero impairment for the lumbar spine”.The Medical Assessor referred to a report of Associate Professor van Gelder and said “In his report of 12 October 2018, Associate Professor van Gelder stated that Mr Salcedo had first been seen on 24 August 2016 with low back pain and pain in both legs.”
The Medical Assessor commented that Associate Professor van Gelder felt that Mr Salcedo did not meet the criteria for radiculopathy under the Guidelines for either the lumbar or cervical spine regions.
The Medical Assessor concluded that:
“The expert radiology opinions are consistent with a possible aggravation of the underlying longstanding degenerative changes. He has symptoms and signs consistent with the pathology identified on radiological imaging. He appeared to be straight forward at the time of my assessment and continued to have neck pain with some muscle guarding present and asymmetry of cervical movement. However, there were no focal neurological deficits that would satisfy the diagnostic criteria for radiculopathy.
There was no evidence of an injury to his right or left shoulder. There was also no evidence of an injury to his upper extremities. He has pain referred to the upper trapezii, causing a secondary restriction in shoulder motion1. He also has ‘pins and needles’ involving the third, fourth and fifth digits which do not correlate with the foraminal stenosis, causing possible encroachment at the C4, C5 and C6 nerve roots.”
The Medical Assessor found that the injury to the claimant’s cervical spine was caused by the accident and that such injury was to soft tissue with pain referred to both shoulders, causing a secondary restriction in shoulder movement. The Medical Assessor assessed WPI of both shoulders adopting principles in Nguyen v The Motor Accidents Authority of NSW and anor [2011] NSWSC 351.
The Medical Assessor was not satisfied that any injury to the claimants left and right shoulders was caused by the accident.
The Medical Assessor said that the claimant had a secondary restriction in shoulder motion due to pain arising from the cervical spine. The Medical Assessor said that according to the best range of motion observed, he had 5% UEI (AMA 4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 3% WPI (AMA 4, Table 4, 3/20). There was said to be a similar restriction in left shoulder motion giving 3% WPI.
The table of assessment is as follows:
Body Part or System AMAMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO) Current
%WPI*%WPI* from pre-existing OR
subsequent causes%WPI* due to motor accident R) AMA 4, 3/104; Yes 3% 0% 3% Shoulder AMA 4, Figure 38, 1 3/43; Figure 41, 3/44; Figure 44, 3/45 L) AMA 4, 3/104; Yes 3% 0% 3% Shoulder AMA4, Figure 38, 2 3/43; Figure 41, 3/44; Figure 44, 3/45
Total WPI assessed by Medical Assessor Assem was 6%.
Medical Assessor Cameron provided a certificate of 5 March 2017 concerning the claimant’s head injury.
Medical Assessor Cameron noted Mr Salcedo hit his head on the windscreen in the crash based on his self-report. He said that there was no loss of consciousness and no evidence that he sustained a brain injury.
There was no current gait disorder and there was no medical reason why he could have developed a gait disorder that was related to the subject motor vehicle crash.
Medical Assessor Cameron said that the head injury was not assessable as causing permanent impairment. While Mr Salcedo had an impact to the head there were no recorded abnormalities in Glasgow Coma Score, post traumatic amnesia or brain imaging abnormalities associated with brain trauma. The criteria set out in section 5.9, page 31 of the Guidelines, were not satisfied. There was no assessable abnormality of station and gait (Table 13, page 148 AMA 4). The assessed impairment was therefore 0% WPI.
The claimant was examined by Medical Assessor Crane who provided a certificate dated 4 April 2016. The Medical Assessor said that the main problem was described as pain in the lower back which was permanently present. It was reported that it tended to be associated with pain passing down the back of the right leg as far as the heel and there was a lesser degree also in the left lower leg. Numbness was complained of in all 10 toes.
Medical Assessor Crane found that the claimant’s disabilities did not exceed the threshold and assessed 5% WPI.
A combined certificate for the assessments of Medical Assessor Crane at 5% WPI and Medical Assessor Cameron at 0% WPI issued by way of an evaluation of 5% WPI.
Medical Assessor Ryan issued a certificate of 22 November 2018 and concluded that L4/5 lumbar decompression surgery was reasonable and necessary and attributable to the accident. A Medical Review Panel consisting of Medical Assessors Lahz, Gibson and Stubbs reversed the decision of Medical Assessor Ryan and was not satisfied that the proposed L4/5 decompression surgery was reasonable and necessary.
Dr Swid, the claimant's GP referred the claimant to Dr Sanki on 22 March 2014. In the referral letter there was reference to an exacerbation of neck pain with left radiculopathy and numbness of the lateral three fingers due to the accident on 14 March 2014. The referral details the findings on the CT scan of the cervical spine and notes that a bone scan excluded neoplasia. A background of diabetes, hypertension and neck problems in 2001 was noted. There was no mention of the lower back in this referral.
Dr Sanki saw the claimant regarding neck and bilateral trapezia! pain. He noted there had been an accident with “?C4-5 fracture” 20 years earlier. A CT pf the neck 12 March 2014 showed minor circumscribed lytic lesions and moderate spondylosis with facet arthropathy according to Dr Sanki. He referred to reflex changes in the upper limbs and signs of carpal tunnel. He found degenerative changes in the neck needing physiotherapy and non-steroidal anti-inflammatory medication.
An occupational medicine medico-legal report of Dr Thomas Rosenthal was obtained and dated 11 September 2015.
Dr Rosenthal noted that the claimant, after the accident, had developed pain in the neck, shoulders and back. Also, there had been numbness of the right leg associated with the back pain. Dr Rosenthal noted that Dr Sanki had arranged three spinal steroid injections, which had not helped. There had also been physiotherapy and painkillers.
Dr Rosenthal diagnosed chronic degenerative change of the neck and lower back. He had also found neurological deficits due to diabetes.
Dr Rosenthal found 5% WPI for the lumbar spine due to dysmetria and 0% WPI for the neck.
A further medico-legal report from Dr Rosenthal dated 13 September 2017 was obtained.
Dr Rosenthal referred to mixed clinical findings by other medical examiners. However, Dr Rosenthal did not make any findings at his examination to support presence of lower limb radiculopathy.
Dr Teychenne's 2016 medico-legal report provided assessments of 5% WPI of the neck, 10% WPI of the lumbar spine and 7% WPI for station and gait impairment (including loss of balance). He referred to a diagnosis of incomplete spinal cord injury.
On 3 November 2017, Dr Teychenne reiterated the above opinion in support of spinal cord injury. He found the history provided was consistent with this condition.
On 9 February 2018, Dr Teychenne reported upper motor neurone findings including extensor plantar responses as well as reduced straight leg raise. He referred to "myelopathic" weakness. He also referred to electromyography (EMG) findings consistent with bilateral L5-S1 radiculopathy along with "clinical evidence" of incomplete spinal cord injury.
He noted that the lumbar radiculopathy had been complicated by diabetic peripheral neuropathy.
On 16 April 2018, Dr Teychenne in a further report reaffirmed his diagnosis of cervical cord injury due to the subject motor accident.
Dr Dias prepared a medico-legal report dated 24 March 2020. He found that with respect to the claimant’s injuries stemming from the accident, he had symptoms and signs consistent with the following conditions:
(a) He had sustained persistent aggravation of pre-existing previously asymptomatic degenerative cervical spondylosis, with an associated loss of range of movement of his right and left shoulders, and associated non-specific bilateral upper limb sensory symptomatology, secondary to an acute musculoligamentous strain (Whiplash Associated Disorder Level 2).
(b) The claimant had sustained a persistent aggravation of previously asymptomatic degenerative lumbar spondylosis, with an associated bilateral L5 radiculopathies, secondary to an acute musculoligamentous strain.
(c) The claimant’s loss of range of movement of his right and left shoulders, did not, in the opinion of Dr Dias reflect innate pathology in his right and left shoulder regions but rather reflected referred pain from his cervical spine condition.
Dr Dias said that in his opinion, there remained a direct causal relationship between the claimant’s conditions affecting his neck, shoulders and lower back and his involvement in the accident. He said that the claimant did have radiological evidence of degenerative change in his neck and lower back, which would have pre-existed the subject motor vehicle accident.
However, Dr Dias said that based on the available evidence, the claimant’s pre-existing conditions of degenerative cervical spondylosis and degenerative lumbar spondylosis were largely asymptomatic prior to the accident. He said that the claimant sustained acute soft tissue injuries to his neck and lower back as a result of the accident and had suffered with documented ongoing symptomatology affecting his neck and lower back on a continual basis over the course of the past six years.
Dr Dias said that the claimant’s neck injury had been associated with a loss of range of movement of his right and left shoulders over the course of the past six years. His lower back injury has been associated with significant radicular symptomatology affecting his right and left lower limbs.
Dr Dias said that in his opinion the claimant had sustained a significant and persistent aggravation of his pre-existing degenerative conditions affecting his neck and lower back, as a result of his involvement in the accident, aggravations which persisted to the time of examination which was likely to persist on an indefinite basis into the foreseeable future. In his opinion, 90% of the claimant’s symptomatology and disabilities with respect to his neck and lower back regions related to his involvement in the accident.
Dr Patrick provided a medico-legal report of 24 September 2015. At that time the claimant was complaining of:
(a) Ongoing neck pain and stiffness subsequent to the accident with difficulty with rotation and looking upwards.
(b) Ongoing left shoulder discomfort and some mild stiffness.
(c) Occasional upper thoracic back pain with an awareness of increased pain particularly at the left shoulder and upper back.
(d) Increased low back pain after the accident.
(e) Difficulty using his left arm outstretched or overhead because of shoulder stiffness.
(f) Numbness in his toes and feet.
Dr Patrick said that the claimant had sustained injury to his cervical spine and lumbar spine with clear evidence for radiculopathy in both spinal regions occurring on a background of some remote reasonably significant cervical spine injury (1990’s) and also some prior history of lower back symptoms. He said that the claimant had also sustained some injury to his left shoulder with early complaint of symptoms and he presented or X-ray of the left shoulder within three days or so of the accident. Dr Patrick said that the claimant continued with some mild stiffness at the left shoulder, probably related some degree of post-traumatic cuff tendinosis/impingement.
Clinical notes from the claimant’s GP dating from 4 May 2020 29 August 2022 were also provided by way of updating. There was a reference to cervical radiculopathy on 20 December 2021 but no articulation of this.
Medical examination
The claimant was examined by Review Panel Members, Medical Assessors Gray and Wan. Their report follows.
Re-examination 12 December 2022 at Fairfield: Dr Tai-Tak Wan and Dr R Gray.
Mr Salcedo attended on his own and there were no problems with communicating in English.
Background/Work History
Mr Salcedo was born in Chile, where he completed high school, then did three years of electrical engineering at university, that he did not complete because of the political situation.
He migrated to Australia in 1971, initially doing some labouring work. He worked for Goodyear as a tyre builder for some years and later worked as a ‘pipe bender’ for over six years; he then went into construction doing carpentry and later became a salesman.
From about 2011, he said he has been self-employed as a ‘broker’ and continues that work although, “not much now” saying he undertakes what comes in, that is now quite limited in volume.
Past Medical History
Oral controlled diabetes over many years, requiring insulin over the last two to three years; he was not aware of any complication from the diabetes. Treatment for hypertension for more than 20 years, with an open cholecystectomy about 30 years ago.
At the time of the motor accident, he said he was taking medications for hypertension and diabetes, but no analgesics.
Current medications include:
Palexia 100mg nocte (later in the consultation he advised he had stopped this medication recently); Tramal 150mg nocte; Lyrica 75mg either 1 daily or 1 bd; Panadeine Forte 2 tds; Diamicron bd; Celebrex prn.; Exforge HCT 10/160; 38 units of insulin nocte; Jardiance 10mg bd
Mr Salcedo said he does not smoke cigarettes and does not drink alcohol.
He has not undertaken organised sport in recent years, having last played soccer at the age of 40.
Mr Salcedo said that in the past he had, “a few” motor accidents but had sustained no injury, saying theywerehad been small accidents but he could not recall when they had occurred.
He initially advised that there had been no subsequent motor accidents or other injury to his body since 2014. Mr Salcedo then said there had been a subsequent motor accident when he was the driver and someone was, “reversing out” and said, “somebody hit me, can’t remember, don’t know what’s wrong with my memory”.
In the past he described a workers compensation claim when working in construction. He said an object hit his head and he was in Royal North Shore Hospital for two days or so, mainly for a head injury.
To direct questioning, he could not confirm whether he also suffered a fracture of the neck in that injury. Mr Salcedo initially said he was off work for over a year, then thought it might have been two to three years; he advised it was 20-30 years ago and the symptoms had settled down promptly.
He denied any other injury to the neck in the past.
He said he had never had an injury to either shoulder, either before or afterpostthe motor accident.
Social History
Mr Salcedo is divorced and has two independent adult children. He currently lives with a de facto in their own home. He was asked about his home - he said it was a two-storey building with 20 steps up to the bedrooms. He described negotiating the stairs slowly and feeling dizzy by the time he reaches the top.
History of the Motor Accident
Mr Salcedo said that in the subject accident he was the driver of a sedan, negotiating a roundabout, when another car entered the same roundabout from the left; he said this vehicle hit the front left hand side of his vehicle, that caused his sedan to deviate about 60 degrees to the right and it then halted.
He outlined to the Medical Assessors the relative positions and contact areas of each vehicle via models on a desk.
He said the accident occurred after he had driven his son to the station about 5am, and he was on the way back home.
Mr Salcedo said he was wearing a seatbelt with a headrest in situ, but he did not believe the car had airbags. Immediately following the collision, he believed he was, “for a few seconds” unconscious. He said he hit his head on the side window of the driver’s door and he felt that the seatbelt caused some left sided neck pressure/redness. He was able to exit the vehicle himself, after a third driver came to check on him.
Mr Salcedo said he recalled speaking to the other drivers; he appeared to have no material retrograde or antegrade amnesia and he recalled exchanging details.
Mr Salcedo was asked which specific parts of his body contacted the inside of the vehicle in the collision: he said he recalled his head hitting the driver’s window and his right leg hitting the steering wheel; he also said there was some effect from the seatbelt on the left[sic] side of the neck.
In particular, to direct questioning, Mr Salcedo could not recall any specific injury to other parts of the body, including no injury to either shoulder.
Mr Salcedo recalled that the police arrived, the ambulance did not attend, and he did not attend hospital; he said his car was not drivable and that his car was, “finished”; the tow truck driver took him home.
Mr Salcedo recalled his right leg shaking, headache and noticing some pins and needles in the left three lesser fingers. He said that subsequently those pins and needles resolved but, more recently, they have recurrently come back, but he could not recall when the paraesthesia returned.
On arriving home, Mr Salcedo said he continued to shake but then he went to sleep without undue concern. On asking him how he felt at that stage, he said that his whole body was shaking, that he had neck, head and right knee pain, and the onset of some low back pain that radiated into the right leg. He said that the head and neck symptoms are worse currently than they were at that stage post-accident.
Mr Salcedo was asked about his symptoms early post-accident: he said there was right leg pain, headache, dizziness and neck pain. In particular, he described no specific shoulder pain, except saying that his ‘shoulders’ were hurting; however, he pointed to the proximal trapezius muscle area on each side, in continuity with the low posterior neck discomfort and interscapular discomfort, as his ‘shoulder’ pain - with no symptoms specifically attributable to either shoulder joint.
Note: the examining Panel Members later in the interview asked specifically and in detail about ‘shoulder pain’ and Mr Salcedo consistently pointed to the proximal trapezius area on each side as his ‘shoulders’, that the Assessors felt reflected typical cervical symptoms.
Mr Salcedo said he had no treatment immediately after the motor accident but the next day he attended Dr Swid his usual general practitioner (GP). He said he didn’t spend much time with Dr Swid as he was advised by Dr Swid that he was not a compensation doctor; Mr Salcedo said he was then referred onto Dr Sanki.
Mr Salcedo said he was complaining to his general practitioner of neck pain and headaches and had x-rays of his head and neck.
Panel comment: the examining Panel Members advised Mr Salcedo that there is record of an X-ray of his left shoulder in the days post-accident, to which Mr Salcedo said he could not recall and said it must have been because he was complaining a lot of neck and ‘shoulder’ pain, pointing to the left trapezius area. He said there had been some bruising about the neck after the motor accident.
On asking for further details about the treatment from his own GP he said, “I was referred to another doctor”.
Mr Salcedo was asked about the progress of his symptoms: he said that he had continuing problems, particularly with his neck and head, that had become worse every year, “worse and worse”. He repeatedly said, “I got worse” and when asked why he said, “I don’t know”.
Mr Salcedo said that on attending Dr Sanki, medications were prescribed, and physiotherapy organised, “in his surgery”. Mr Salcedo complained of some delay in starting treatment, apparently while awaiting insurance company approval. He was unsure when he returned to work.
Current Symptoms
At present, Mr Salcedo described continuing pain and pressure in his head, pointing about his head generally and behind both ears; also pain superiorly and inferiorly in the posterior aspect of the neck that radiates, pointing to the occipital region of the skull. He was particularly adamant there was pain and pressure generally in his head.
Mr Salcedo complained of pins and needles in the left little, ring and long fingers, which he described as more of a numbness feeling, being constantly there, but the intensity varies, although earlier he had said that it came and went.
On asking further about the pain in his neck, Mr Salcedo said this was a sharp pain, particularly exacerbated with movement, although he had a continuing underlying discomfort constantly; movements cause sharp pain and increase in headache and that presently it goes, “to top of head” and behind his ears, with pressure in both ears. He has dizziness associated with the headaches and said he is scared of, “dropping” to the floor.
Associated with the neck pain he has proximal trapezius pain, without any deltoid/shoulder pain, present both sides and extending down to the rhomboid region but not to either shoulder joint area. He said the neck pain differs from the head pain in that the head pain/pressure is constant. He said that he feels discomfort, pointing to both proximal trapezial areas, but the pressure in the head is his major problem.
To specific questioning, there have been no cervical radicular symptoms. When he was asked about carpal tunnel syndrome/symptoms he replied, “never carpal tunnel syndrome”.
Regarding treatment, Mr Salcedo said he has had multiple injections into both the neck and low back. The examining Panel Members took some time attempting to assess treatment over the years, but it was difficult to obtain a clear history of the sequence of treatments/recurrent spinal injections. Mr Salcedo implied that the injections helped for a short period of time, and he thought the last injection into his neck was about six months ago; he said he had six injections into the lower back, up to about one year ago, with apparent refusal by the insurer for further low back injections. He said that there was some relief for four to five months after each course of cervical injections.
Later in the interview, Mr Salcedo said that after the motor accident the neck pain came on later and after the low back pain, which conflicted with his earlier history, and which he could not explain.
In the low back, he described low back pain going into both buttocks and down to the right foot and heel, worse at night, but currently not sharp, “just there” with some help from former injections every three months. He was questioned why his own doctor’s records didn’t reflect immediate low back pain post-accident. He said his own GP didn’t want to take his case, although Mr Salcedo was also adamant that he had repetitively advised his own GP of the back problem but it had not been recorded. He denied any urinary or bowel symptoms.
With regard to sitting, he said he was able to sit for about one hour, stand for about 30-40 minutes and walk one to two blocks, but then said he could walk for about 15 minutes. He was concerned that he had experienced intermittent falls, describing a fall to the ground having occurred once in the former month.
The examining Panel asked again about the left shoulder and the accident, but Mr Salcedo denied any specific left shoulder injury.
Mr Salcedo said that he has had no psychological treatments in the last few years.
When asked whether he felt depressed, he said, “of course”. He often cannot sleep well and takes two tablets at night for sleeping but could not recall the name of the medication.
Regarding attending a pain specialist, Mr Salcedo said he had consulted Dr Sanki but could not recall attending a pain specialist, despite being prescribed long-term narcotic medication. Mr Salcedo said that he had experienced problems with Palexia and more recently had stopped that medication, now taking Targin.
He had last attended Dr Teychenne, Neurologist in 2021 and Mr Salcedo repeatedly asked whether the Panel had access to Dr Teychenne’s reports.
He still attends Dr Sanki and said he has no physiotherapy currently.
Examination
On examination, Mr Salcedo was generally cooperative but appeared to be a vague historian. On occasions he was highly specific in his memory of some events about the motor accident but, with other aspects, he said he was unable to recall any detail about that period.
There were elements of abnormal pain behaviour manifested during the examination.
When asked to demonstrate his gait, he appeared very unwieldy and hesitant; however, it was observed that his gait was essentially normal at other times, when observed walking spontaneously.
In the cervical spine the movements were initially inconsistent, so Mr Salcedo was counselled in detail regarding the issue of consistency and its importance in formal assessment. The consistency and range of movements improved after the counselling.
Mild tenderness was elicited generally in the cervical spine with no guarding, with that mild tenderness extending to the rhomboid areas and over both proximal trapezius areas, but without any localising tenderness. There was no tenderness over the clavicles, about the deltoids or about either shoulder.
No cervical guarding or radicular symptoms or signs were obtained.
On assessing the active range of cervical movements, the ranges of rotation to the right and left were initially inconsistent but, after counselling regarding consistency, the ranges of rotation were equal, being 3/5 of normal. The ranges of lateral tilt were equal to the right and left, being 3/5 of normal, reflecting no dysmetria and consistency of rotation and lateral tilt.
However, the range of active cervical flexion and extension varied between repeat examinations and the inconsistency continued despite the examining Panel counselling Mr Salcedo in detail regarding the issue and importance of consistency. With more than three repeat examinations, the ranges of flexion/extension continued to be variable and inconsistent.
Note: The Panel judged that there was no consistent evidence of cervical dysmetria, despite a careful clinical examination of active flexion/extension ranges of movement.
The Panel concluded that there was no dysmetria of the cervical spine, no guarding and no cervical radicular symptoms or signs.
On examining the shoulders, there was no obvious asymmetry and no muscle wasting. There was no tenderness about either shoulder. There was no impingement elicited in either shoulder.
The range of external rotation of each forearm, with the upper arm adducted in neutral, was full and equal both sides essentially excluding a ‘frozen shoulder’ clinically. The passive range of movements of each shoulder was equal, normal and non-irritable.
On assessing the active shoulder movements, after repeated attempts, Mr Salcedo apparently was unable to elevate his arms above shoulder level, and this attempted movement was associated with some abnormal ‘pain behaviour’/grimacing. After further multiple attempts, Mr Salcedo was eventually able to actively abduct his shoulders symmetrically to clap his hands above his head, although the degree to which he could complete this manoeuvre was variable; on questioning why there was variation in the ranges of abduction, Mr Salcedo said this resulted from general pressure in the head and neck plus upper thoracic discomfort.
On formally measuring the active ranges of movement of both shoulders, using a goniometer, the initial and repeated (x3) set of measured movements were inconsistent. The issue of inconsistency was again outlined to Mr Salcedo in detail, advising him of the importance of consistent repeat measurements, that measurement of consistent ranges of movement with sequential examinations was required, in order to be able to assess his shoulder impairment properly.
Mr Salcedo said he understood this but said there was variable head pressure, neck pain and, “shoulder pain” (trapezius pain) that limited this; however, at different times during the examination, he pointed to different areas causing the variable range of movements. Mr Salcedo finally advised that it was mainly the “head pressure” that he felt had been limiting shoulder movements.
With regard to measured ranges of active shoulder movements, it was noted that:a.repeat ranges of active internal and external shoulder rotations were full and normal;
b.ranges of adduction and extension were essentially full and normal and equal both sides.
c.With combined abduction, he demonstrated he was able to clap his hands above his head, but initially to specific formal measurement of active movements, the range was initially considerably reduced from the expected normal (right 140 degrees; on the left 120 degrees).
However, after counselling Mr Salcedo about the importance of consistency, both shoulders actively abducted to the same extent and measured 170 degrees, with no complaint of any specific cervical or trapezius factor.
Flexion also varied initially but finally a range of flexion of 160 degrees was obtained bilaterally.
Note: The examining Panel Members considered:1) that the shoulder flexion and abduction ranges obtained were within normal limits for Mr Salcedo’s age group, and equal both sides, with the other shoulder measurements within normal limits;
2)in particular, at formal examination with a full range of active movements, there was no complaint of restriction in shoulder motion due to pain or other complaint/physical effect from the cervical spine, with no requirement to recruit any Nguyen assessment factor.
The Assessors concluded that with a normal range of movements, no muscle wasting, no tenderness, no passive irritability, no impingement and no abnormal shoulder investigations - that the clinical examination of both shoulders was within normal limits for a man of Mr Salcedo’s age group, without physical impairment.
In the upper limbs, there was no muscle wasting and no localised residual signs of soft tissue injury.
Reflexes were present but reduced and equal both sides. There was no power deficit and no objective sensory loss.
Range of movement of elbows, wrists, hands and fingers were symmetrical and within normal limits.
Movement of shoulders Maximum Right (degrees)
[variable to repeat exam]Maximum Left (degrees)
[variable to repeat exam]Flexion 160 160 Abduction 170 170 Extension 60 60 Adduction 60 60 External rotation 90 90 Internal rotation 90 90 The Panel noted that the active range of movements of each shoulder was the same on both sides, and in the assessment of the examining Panel members, within normal limits for a man of 74 years.
The Panel concluded that the right shoulder exhibited a normal range of movements with no injury caused by the motor accident.
That the left shoulder sustained a soft tissue injury with evidence of a left shoulder
X-ray required early post-accident by his treating GP, with no bony injury identified. Current range of active movements equivalent to the uninjured right shoulder and any soft tissue injury caused by the motor accident has resolved, with no residual physical impairment.
There was no impairment of either shoulder. There was no specific cervical factor contributing to any shoulder impairment. Thus, there is no requirement to consider Nguyen factors.There was no direct injury to the right shoulder and the left shoulder injury has resolved, therefore both will be 0% WPI.
Thoracic spine
Active movements of the thoracic spine were normal. There was no tenderness, muscle guarding or spasm. There was no dysmetria or radicular complaint.
No physical impairment is identified.
No residual signs of injury/impairment observed with regard to any left arm soft tissue injury caused by the motor accident. Complaints of paraesthesia in left fingers not obviously related to the motor accident and no objective sensory loss, and not fulfilling cervical radicular criteria under the Guidelines.Shoulders – Normal range of movements bilaterally and equal = 0%
Cervical spine injury - not listed in the injuries referred to the review Panel.
Reasons
Regarding the submission that the Panel is bound by the earlier decision of Medical Assessor Crane, the Panel notes that this is a hearing de novo. The Panel can make its own decision without restriction and is not bound by a previous determination regarding the claimant’s injuries.
Causation
The Motor Accident Guidelines
The Motor Accident Guidelines identifies the test for causation at clauses 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Assessor 4 Guides.
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one.” His Honour also observed that when undertaking the task of assessing causation, a review panel will derive practical assistance from the Guidelines.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW)[4] Campbell J adopted the Justice Johnson’s approach with a caveat touching upon the CLA:
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Medical Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that 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 Civil Liability Act 2002, s 5D. (See s 3B(2).)”[5]
The Civil Liability Act 2002 (the CLA)
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
Justice Campbell in Owen, said that s 5D of the CLA needs to also be considered when assessing causation.
99.Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
There are two elements to address when assessing causation under s 5D(1):
“factual causation”;[6] and
“scope of liability”.[7][6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”.
Following the Guidelines, the Panel must consider whether the injury suffered by the claimant was caused or materially contributed to by the accident. Following on from that, did the accident cause or contribute to a worsening of the impairment. The accident does not have to be a sole cause as long as it is a contributing clause.
The insurer has referred to Nguyen’s case. This decision is authority that if there is an impairment of a body part following a motor vehicle accident, but no specific injury to that body part, then the impairment is still assessable if symptoms causing the impairment arise and/or radiate from a body part that was the site of an injury caused by the accident. However, a Medical Assessor or Medical Review Panel must first be satisfied that there is in fact an assessable permanent impairment to that body part, before considering whether the principles of Nguyen apply.
Right Shoulder: no injury recorded medically contemporaneously; claimant said no injury to the right shoulder in motor accident. No investigation available with normal clinical examination.
Left Shoulder: claimant said no injury in motor accident; however, left shoulder X-ray by treating GP three days post-accident (reported as no bony injury). No bony injury left shoulder but soft tissue injury left shoulder – resolved; currently normal clinical examination equivalent to the opposite uninjured right side.
Cervical Spine: claimant described bruising about neck post-accident, consistent with soft tissue injury; past history of cervical spine fracture. Current assessment DRE I = 0%WPI.
Whilst the claimant injured his left arm in the accident, there was no identifiable injury at the time of the examination and this soft tissue injury had resolved.
The Panel is not satisfied that there is evidence immediately post-accident of any injury to the claimant’s right shoulder from the accident. There was a soft tissue injury to the left shoulder which is attributable to accident; however, this has resolved.
There were no cervical radicular symptoms or signs. There was no shoulder pain when formally assessed. ‘Shoulder pain’ complained of, is consistent with cervical/proximal trapezial discomfort. However, no Nguyen consideration is indicated because no impairment of either shoulder and no contribution from the cervical spine.
Contralateral shoulder injury baseline assessment is not relevant as there was no loss of range of shoulders from any source related to accident. Technically, under 1.15, left shoulder impairment subtracted from the right shoulder impairment = 0%.
There was no impairment of the shoulders. Soft tissue injury to the left shoulder has resolved. There was no clinical evidence that any specific shoulder symptoms or clinical signs related to the cervical spine.
The Panel reiterates that the contralateral joint was not injured but it is not relevant in the circumstances. The baseline normal right shoulder range of movement equals range of active movement of the left shoulder, with any soft tissue injury resolved.
There was no clinical evidence before the Panel that there were any objective shoulder joint symptoms or clinical signs related to the cervical spine.
As above, contralateral joint not injured but not relevant in the circumstances. Baseline right shoulder equals left shoulder resolved.
CONCLUSION
The injury to the claimant’s left shoulder has resolved with no physical impairment.
Examination of both shoulders indicated a normal range of active and passive movements for age, no muscle wasting, no tenderness, no passive irritability, no impingement and no abnormal shoulder investigations. The clinical examination of both shoulders was normal, without physical impairment or assessable residual impairment from the cervical spine.
Apart from a reduced range of rotation and tilt of the cervical spine and inconsistent flexion/extension, the cervical spine was otherwise unremarkable with no evidence of referred pain to the shoulder joints.
There was no impairment assessable with the claimant’s left arm.
The Panel assessed 0% WPI.
c.
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current
%WPI*
%WPI* from pre-existing OR
subsequent causes
%WPI* due to motor accident
1
Left Shoulder
AMA4 3.1j, p3/41-45
Yes
0%
0%
0%
2
Left arm
AMA4 3.i, p3/24-41
Yes
0%
0%
0%
* %WPI = percentage whole person impairment
Determination
The Panel revokes the certificate of Medical Assessor Assem dated 15 March 2022.
The following injuries caused by the accident and assessed by the Panel give rise to a permanent impairment of 0%:
(a) left shoulder – soft tissue injury – resolved, and
(b) left arm – soft tissue injury – resolved.
The following injuries were not caused by the accident:
(a) right shoulder – soft tissue injury.
The Panel revokes the Combined Certificate of Medical Assessor Assem dated 25 March 2022 and issues a new Combined Certificate determining that the following injuries caused by the motor accident give rise to a WPI assessment of 5%;
(a) certificate of this Panel at 0% WPI
(i)left shoulder – soft tissue injury;
(b) left arm – soft tissue injury;
(c) certificate of Medical Assessor O’Neill dated 28 June 2021 for assessment of an injury to the claimant’s cervical spine at 5% WPI, and
(d) certificate of Medical Assessor Cameron dated 5 March 2017 for assessment of a head injury at 0% WPI.
Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, the combined impairment is 5%.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
0
4
0