Insurance Australia Limited t/as NRMA Insurance v Trkulja
[2023] NSWPICMP 667
•11 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWPICMP 667 |
| CLAIMANT: | Bojan Trkulja |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Geoff Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 11 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury in a rear end collision on 3 January 2017; injuries referred for assessment were the cervical spine, thoracic spine, lumbar spine, and left shoulder; Medical Assessor (MA) Shahzad assessed 17% whole person impairment (WPI); Held – inconsistency during examination by medical practitioners; treat claimant’s presentation with caution; evidence of engineers considered; find collision, albeit at low speed, sufficient to cause injury to neck, upper and low back and left shoulder; imaging revealed no significant injury; limited range of movement noted during examination not corroborated by muscle wasting or consistent restriction in rotation; find claimant sustained soft tissue injury to cervical spine, thoracic spine, the lumbar spine and the left shoulder; cervical spine assessed as DRE cervicothoracic category 1 or 0% WPI; thoracic spine assessed as DRE thoracolumbar category 1 or 0% WPI; lumbar spine assessed as DRE lumbosacral category 1 or 0% WPI; given inconsistencies range of motion not reliable method for evaluating level of impairment of left shoulder; left shoulder assessed by analogy; mild crepitation of the right acromioclavicular joint or 2% WPI; certificate of MA Shahzad revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Review Panel Certificate The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 17 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) of 2%: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury, and · left shoulder – soft tissue injury. |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
On 3 January 2017, Bojan Trkulja (the claimant) was a back seat passenger in a vehicle which was involved in a rear end collision (the accident). Mr Trkulja alleges that he sustained injury to his cervical spine, lumbar spine and left shoulder.
Insurance Australia Limited T/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
The medical dispute was referred to Medical Assessor Shahzad.
Medical Assessor Shahzad issued a certificate dated 27 March 2022 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 17%:
· cervical spine/neck;
· lumbar spine/mid back, and
· left shoulder.
The insurer sought a review of the certificate of Medical Assessor Shahzad. On 9 December 2022 a review panel constituted by Member Foggo, Medical Assessor Dixon and Medical Assessor Curtin (the First Review Panel) issued a certificate confirming the certificate of Medical Assessor Shahzad.
The insurer sought judicial review in the Supreme Court. On 15 August 2023 Mr Justice Chen in Insurance Australia Limited trading as NRMA Insurance v Trkulja[2] quashed the certificate issued by the First Review Panel and remitted the proceedings to be referred to a differently constituted review panel for determination.
[2] Insurance Australia Limited trading as NRMA Insurance v Trkulja [2023] NSWSC 956.
Mr Justice Chen in Trkulja concluded both Medical Assessor Shahzad and the First Review Panel wrongly formed the view the insurer’s medico-legal reports should be disregarded or given little weight due to perceived procedural unfairness and non-compliance with the Guidelines.
His Honour also concluded the First Review Panel reversed the onus of proof noting the onus is on the claimant to satisfy the review panel that causation is established, not the insurer. Further, his Honour concluded that the First Review Panel was in error in resolving the causation issue simply based on the competing opinion of accident reconstruction experts.
Accordingly, the review of the certificate of Medical Assessor Shahzad has been remitted to this Review Panel (the Panel).
MATERIAL BEFORE THE PANEL
The Panel issued a Direction to the parties on 1 September 2023. That Direction included the following:
“3. The Panel notes the decision of Chen J in Insurance Australia Limited trading as NRMA Insurance v Trkulja [2020] NSWSC 946 quashing the certificate of an earlier review panel dated 9 December 2022 constituted by Member Robert Foggo, Medical Assessor Drew Dixon and Medical Assessor Geoffrey (Paul) Curtin (the First Review Panel).
4. The Panel notes in accordance with directions made by the First Review Panel the following documents have been uploaded to the portal:
Insurer’s documents
·AD1 - Submissions dated 13 April 2022, submissions dated 5 April 2022 and a report of Dr Muratore dated 13 August 2020:
·AD3 – insurer’s indexed bundle of documents relied upon for review paginated from pages 1 to 332;
·AD9 and AD10 –Vocational Capacity Centre report dated 28 June 2019 incorporating reports of John Raue and Liz Atteya.
Claimant’s documents
·AD2 – Reply and undated submissions;
·AD4 – claimant’s indexed bundle of documents relied upon for review paginated from pages 1 to 241.
5. These are the documents the Panel considers relevant to the review. The Panel does not propose to have regard to the submissions furnished by both parties in respect of the admissibility of the insurer’s medico legal reports noting the findings of Mr Justice Chen in Trkulja and nor does the Panel propose to have regard to the submissions furnished by both parties in respect of the need for a re-examination. The panel proposes to re-examine the claimant.
6. However, the Panel wishes to be satisfied that all the evidence relied upon by either party is before it. Accordingly, to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the Panel makes the following directions:
·The insurer is, by close of business 15 September 2023, to either confirm the documents sought to be relied upon by the insurer are as outlined in paragraph 4 above or if that is not the case to upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in this review.
·The claimant is by close of business 29 September 2023, to either confirm the documents sought to be relied upon by the claimant are as outlined in paragraph 4 above or if that is not the case to upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in this review.”
On 4 September 2023 the Panel asked the parties to upload to the portal high-coloured photographs of the damaged vehicle noting the photographs contained in the report of Grant Johnston dated 18 November 2019 and in the report of William Keramidas dated 11 April 2019 were largely illegible.
On 14 September 2023 the insurer confirmed the documents listed were the documents relied upon by the insurer.
In a letter dated 20 September 2023 Carters Law Firm attached a schedule of the claimant’s bundle of documents relied upon in the review application which had been uploaded to the portal on or about 15 July 2022. Also attached were the following reports which the claimant seeks to rely upon:
· report of Dr Neil Berry dated 13 April 2023, and
· report of Dr M Guirgis dated 25 March 2023.
On 28 September 2023 Moray & Agnew uploaded to the portal colour copies of the following reports which had been previously uploaded to the portal in the insurer’s bundle dated 12 July 2022:
· report of Mr Keramidas, traffic engineer dated 11 April 2019 and 7 May 2019; and
· report of Mr M Griffiths dated 3 March 2020.
On 29 September 2023 Carters Law Firm uploaded to the portal a colour copy of the report of Mr Grant Johnston dated 18 November 2019.
On 16 November 2023 in response to a direction from the Panel the insurer uploaded to the portal the following records referred to in the report of George Haralambous dated 22 July 2019 (insurer’s additional documents):
· reports of Dr David Abi-Hanna dated 5 February 2016 and 4 November 2016;
· report of Dr Mark Borkman dated 27 April 2016;
· report of Dr Alexander Simring dated 26 August 2011;
· clinical notes of the Liverpool Hospital;
· clinical notes of Advance Liverpool Medical Centre, and
· clinical notes of the Bathurst Street Medical Practice.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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.
1.6 Causation 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.
1.7 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.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[3] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[4] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[4] [2016] NSWCA 229, McGiffen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[5] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[5] [2021] NSWSC 804, Kinchela.
REVIEW PROCEDURE
The insurer filed an application for review of the medical assessment of Medical Assessor Shahzad on 13 April 2022.
On 19 May 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines), version 1 effective 1 June 2018 were issued pursuant to s 44(1)(c) of the MAC Act for the purposes of assessing the degree of permanent impairment. The Guidelines are based on the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission, Act, 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
THE EVIDENCE BEFORE THE PANEL
Certificate of Medical Assessor Shahzad, 17 March 2022
[8] Section 63(3A) of the MAC Act.
The following injuries were referred to Medical Assessor Shahzad for assessment:
· cervical spine/neck – soft tissue, post-traumatic mechanical derangement, musculoligamentous sprain/strain, C2-3 and C5-6 intervertebral disc involvement, posterior annular bulges at C2-3, C5-6, radiation up the neck and back of the head triggering headaches.
· thoracic spine – soft tissue, musculo-ligamentous sprain/strain also at T8-9 intervertebral disc, left centro-obligue posterior disc protrusion extending backwards to indent into the anterolateral surface of the thecal sac at T8-9.
· lumbar spine/mid back – soft tissue, post traumatic mechanical derangement, musculo-ligamentous sprain/strain with L4-5 and L5-S1 intervertebral disc involvement, posterior annular bulges at L3-4, L4-5 and L5-S1.
· left shoulder – soft tissue, post-traumatic symptoms, contusion of the articular surfaces, spraining and straining of the supporting capsular and ligamentous structures, subacromial bursitis.[9]
[9] AD4 p 219.
Medical Assessor Shahzad reported Mr Trkulja had constant pain in his neck causing difficulty when moving his head in any direction. He reported pain and stiffness in his left shoulder causing difficulty lifting his left arm above shoulder level. He reported pain in the thoracic and lumbar sections of his back with pain spreading towards his left hip and leg.
At the time he reported his shoulder symptoms had somewhat resolved.On examination of the cervical spine, he reported tenderness over the cervical spinal process on the left side with mild restriction on flexion to three-quarters normal, right lateral rotation and right lateral flexion to half of normal and extension half of normal.
On examination of the thoracic spine, he found no tenderness over the thoracic spinal process but a bit of soreness on the right side. He found moderate restriction on left and right rotation of the thoracic spine and half of normal range of movement.
On examination of the lumbar spine, he reported mild soreness at the L3/4, L4/L5 and L5/S1 levels centrally. He found stiffness of muscles in the lumbar spine and mid-line tenderness. Forward flexion was to knee level and there was moderate restriction on extension and right lateral rotation to half of normal. Mr Trkulja was able to touch up to his knee level on lateral flexion bilaterally.
Medical Assessor Shahzad reported tenderness over the suprascapular and infrascapular areas and posteriorly and anteriorly over the left shoulder. Biceps reflex was normal on the left side. Grip strength on the right side was 43.9kg but weaker on the left side at 21.6kg. There was no neurological deficit in the upper limbs and Jobes, Hawkins and Neer impingement testing was negative on the left side.
Medical Assessor Shahzad recorded range of shoulder movement as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 90° Extension 50° 40° Adduction 50° 30° Abduction 180° 90° Internal Rotation 90° 90° External Rotation 90° 30°
On examination of the lower extremity, he reported no pins and needles in his legs or feet. Medical Assessor Shahzad reported the straight leg raise test was inconclusive. There was no muscle wasting and no neurological deficit noted in the lower limbs.
Medical Assessor Shahzad diagnosed the following:
· multilevel spondylosis of the cervical spine with central canal and neural foraminal narrowing;
· multilevel lumbar spine spondylosis, and
· left shoulder mild subacromial bursitis with anterolateral downsloping of the acromion.
He found any injury to the thoracic spine had resolved.
Medical Assessor Shahzad assessed a 5% whole person impairment (WPI) of the cervical spine, 8% WPI of the left shoulder and 5% WPI of the lumbar spine, a total of 17% WPI.
Motor Accident Personal Injury Claim Form
In the Motor Accident Personal Injury Claim Form dated 16 January 2017 Mr Trkulja described the accident as follows:
“On the 3rd January I was a back seat passenger behind front seat passenger in the vehicle driven by the father of my friend when he did not stop and hit the stationary vehicle in front. I consider the vehicle I was a passenger in that caused the accident”.
Mr Trkulja listed his injuries as “neck, upper and low back, left shoulder, anxiety, insomnia”.[10] He nominated his occupation as store assistant, Aldi (first employer) and butcher assistant, My way Pty Ltd (second employer).
[10] AD4 p 5
In the medical certificate which accompanied the claim form dated 9 January 2017 Dr Kris Tomka, general practitioner (GP) described the injuries as follows:
“Injury to neck,
Injury to mid and lower back;
Injury to left shoulder.”
Pre-accident treating medical records.
Clinical notes of Advance Liverpool Medical Centre between 17 May 2006 and 12 June 2018 do not disclose any pre-accident complaints pertaining to the neck, back or left shoulder.[11]
[11] Insurer’s additional documents p 7.
On 21 July 2010 Advance Liverpool Medical Centre in a letter to Dr Christopher Pokorny referred to the presence of chronic abdominal bloating.
On 26 August 2011 Dr Alexander Symring referred to troublesome bloating for approximately the last year and symptoms of intermittent constipation.[12]
[12] Insurer’s additional documents p 4.
On 27 April 2015 Dr Mark Borkman, endocrinologist reported Mr Trkulja had subclinical hypothyroidism consequent to Hashimoto’s thyroiditis and minor thyroid nodularity.[13]
[13] Insurer’s additional documents p 3.
On 11 November 2015 Dr Phan described the reasons for the visit as multinodular goitre and he referred to poor sleep, early morning wakening, depressed mood and anxiety. Reference was made to seeing a psychologist.
On 20 December 2015 Dr Phan referred to the presence of lethargy and malaise.
On 5 February 2016 Dr David Abi-Hanna gastroenterologist referred to long standing dyspeptic symptoms and on 4 November 2016 he reported a gastroscopy, noting all biopsies were normal confirming the claimant did not have coeliac disease.[14]
[14] Insurer’s additional documents pp 1, 2 and 5.
On 20 December 2016 Dr Phan reported Mr Trkulja could not work in the last week because of abdominal pain.
Post-accident treating records.
The accident occurred on 3 January 2017.
Bathurst Street Medical Practice
Mr Trkulja saw Dr Tomka, GP on 4 January 2017. He reported:
“MVA on 3/1/17 at midday, passenger at the back seat, his car hit the car in f ront.
C/o pain in neck, upper and lower back
Left shoulder pain
One examination limited ROM in neck, upper and lower back
Limited ROM in left shoulder
DX: Injury to neck, upper and lower back
Left shoulder injury.”
On 19 January 2017 Dr Tomka reported:
“C/o pain in neck, upper and lower back
Pain left shoulder more severe
Insomnia.”
Dr Tomka also reported anxiety and panic attacks. He recommended Mr Trkulja continue physiotherapy and prescribed Mersyndol Forte and Antenex.
Mr Trkulja continued to consult Dr Tomka complaining of pain in his neck, upper and lower back. On 20 March 2017 he also reported anxiety.
On 26 April 2017 Dr Tomka reported pain in both shoulders, neck, upper and lower back. On 5 June 2017 he also reported insomnia – anxiety related. On 30 August 2017 he reported back pain, anxiety and gastritis and on 5 September 2017 he certified Mr Trkulja unfit for work.
On 28 November 2017 Dr Tomka reported major depressive disorder, back pain and gastro-oesophageal reflux disease. On 16 January 2018 Dr Tomka reported complaints of pain in the neck, low back and both shoulders and on 24 April 2018 Dr Tomka reported Mr Trkulja was going to trial working 12 hours a week on light duties.[15]
[15] Insurer’s additional documents p 233.
Dr Tomka, GP
Dr Tomka provided a report dated 13 June 2018.[16] On examination on 4 January 2017 he reported limited range of movement in the neck with obvious spasm of all neck muscles. He reported the left shoulder was tender and movements were restricted. He reported the thoracic spine was tender, but all movements were normal. He also reported restricted range of movement of the lumbar spine.
[16] AD4 p 45.
Dr Tomka stated Mr Trkulja had presented to his surgery regularly with consistently the same symptoms. He was unable to continue his work and developed a depressed mood.
Advance Medical Centre
On 21 June 2017 Dr Phan reported Mr Trkulja was “seeing third party insurance Dr Tomka for MVA 6 months ago, had steroid injection shoulder”.[17]
[17] Insurer’s additional documents p 25.
On 17 July 2017 Dr Phan reported Mr Trkulja could not work Friday due to his back pain. Dr Phan issued a medical certificate but advised Mr Trkulja needed to see his treating doctor for a further medical certificate.
Dr Nikola Tomic, psychologist
On 15 May 2017 Dr Nikola Tomic, psychologist reported on 3 May 2017 the claimant had reported headaches with blurred vision, constant pain in his neck, pain and stiffness in his left shoulder and pain in the thoracic and lumbar spine.[18] He reported psychological symptoms which commenced following the accident and diagnosed an adjustment disorder with mixed anxiety and depressed mood.
[18] AD4 p 13.
Medico-legal reports
Dr Medhat Guirgis, orthopaedic surgeon
In a report dated 4 April 2017 Dr Medhat Guirgis, orthopaedic specialist reported Mr Trkulja complained of injuries to the neck, left shoulder, mid back and lower back.[19] Dr Guirgis considered Mr Trkulja unfit for work at that stage.
[19] AD4 p 11.
Dr Guirgis provided a report dated 22 March 2018, following an examination of the claimant on 12 March 2018.[20] He reported Mr Trkulja still complained of neck pain and stiffness radiating to the back of the head triggering occipital headaches, pain, tightness and loss of strength in the left shoulder, mid-back and lower back pain and stiffness.
[20] AD4 p 24.
He reported restriction of movement of the cervical spine and muscle spasm in the para-cervical muscles. He noted tenderness over the suboccipital area and over the C5 and C6 spines. He did not find any neurological deficit in the upper limbs.
Dr Guirgis reported restriction of movement of the left shoulder and noted evidence of reduced abduction power against resistance. He noted tenderness over the anterior half of the rotator cuff of the shoulder. He reported tenderness over the T6 – 12 spines and some restriction of movement of the thoracic spine. He noted guarding of the paraspinal muscles but no neurological deficits.
Dr Guirgis reported the normal lumbar lordosis was lost. He noted tenderness and restriction of movement of the lumbar spine with spasm of the paraspinal lumbar muscles. He reported straight leg raising was positive on both sides at 70 and noted no neurological deficits in the lower limbs.
Dr Guirgis reviewed the claimant and provided a report dated 25 March 2023. Mr Trkulja continued to complain of:
· neck pain and stiffness with radiation to the left shoulder and the top of the shoulder blade;
· occipital headache attacks associated with tension in the upper neck;
· mid-back pain and stiffness felt only during the acute lower back episodes;
· painful stiffness and heaviness of the left shoulder, and
· lower back pain and stiffness.
On examination Dr Guirgis noted tenderness over the suboccipital area and over the C5 and C6 spines. He reported restriction of movement of the cervical spine. He did not find any neurological deficit in the upper limbs.
He recorded restriction of movement of the left shoulder. He reported abduction 140º, adduction 30º, flexion 150º, extension 20º, external rotation 70º and internal rotation 70º. He reported a positive Hawkins-Kennedy Impingement Test and The Neer’s Impingement Tests.
Dr Guirgis reported pain and tenderness in the interscapular area of the thoracic spine with restriction of movement. He reported no neurological deficits.
Dr Guirgis reported that the normal lumbar lordosis was lost. Movements of the lumbar spine were restricted one half of the flexion/extension range and one third of the side flexion/rotation to the left and one quarter to the right with guarding on trying to exceed this range. Straight leg raising on the left was to 60º and on the right to 70º. Pain and tenderness were reported over the lower lumbar spinal area and over the left sacroiliac joint. There were no neurological deficits in the lower limbs.
Dr Guirgis diagnosed the following caused by the accident:
· post-traumatic mechanical derangement of the cervical spine caused by musculo-ligamentous strain with C2-3 and C5-6 intervertebral disc involvement;
· occipital headache attacks felt in association with tension in the muscles of the neck;
· post-traumatic symptoms of subacromial impingement in the left shoulder joint caused by subacromial bursitis;
· musculo-ligamentous strain of the thoracic spine implicating the T8-9 disc, and
· post-traumatic mechanical derangement of the lumbar spine caused by musculo-ligamentous strain with L4-5 and L5-S1 intervertebral disc involvement. He noted MRI evidence of minimal posterior annular bulges at the L3-4, L4-5 and L5-S1 levels.
Dr Guirgis assessed a 5% WPI of the cervical spine, 5% WPI of the thoracic spine, 5% WPI of the lumbar spine and 5% WPI of the left upper extremity, a total of 19% WPI.
Dr John Albert Roberts, psychiatrist
Dr Roberts concluded the mental state examination was totally normal and there was no evidence of any psychiatric/psychological condition.
Dr Roberts reassessed the claimant on 17 March 2020. He provided a report dated 27 March 2020. Mr Trkulja reported he continued to feel depressed and anxious, his sleep was disturbed, he had trouble with concentration and his motivation to do tasks had declined.
Dr Roberts opined having regard to the trivial nature of the accident it was inexplicable that a psychiatric condition developed at all and even more inexplicable it should worsen in excess of three years post-accident.
Mr Trkulja was reassessed by Dr Roberts on 22 February 2021 who reported Mr Trkulja referenced problems with his neck, back, left shoulder, stomach and headache.[21]
[21] AD3 p 259.
Mr Trkulja also reported the presence of depression and anxiety. Dr Roberts again concluded Mr Trkulja was an unreliable historian and he found no evidence of any psychiatric pathology arising as a result of the accident. He found no evidence of any DSM (The Diagnostic and Statistical Manual of Mental Disorders) diagnosis.
Dr Klaas Akkerman, psychiatrist
Dr Akkerman assessed Mr Trkulja at the request of his solicitor and provided a report dated 17 November 2017.[22] He reported Mr Trkulja hurt his back, neck and left shoulder. He diagnosed post-traumatic stress disorder, major depression and specific phobia (traffic).
[22] AD4 p 17.
Dr Blagoje Kuljic, psychiatrist
Dr Kuljic assessed the claimant on 13 October 2018.[23] He diagnosed post-traumatic stress disorder and major depressive disorder.
[23] AD4 p 49.
Dr Graham Hall, occupational physician
Dr Hall assessed Mr Trkulja at the request of the insurer and provided a report dated 14 March 2018.[24] He reported continuous pain across the low back worse on the left, neck stiffness but pain at the base of the neck only if he sleeps awkwardly or with sudden movement associated with a headache. Left shoulder painful only with exertion. Poor sleep, can’t concentrate, anxious and cranky.
[24] AD3 p 9.
He reported following the accident Mr Trkulja returned to work at Aldi for a few days before taking two weeks off. He again tried to return to work but lasted only a couple of days. He worked 15 hours a week from 1 June 2017 until his restricted duties were withdrawn and his employment terminated. He had not worked since.
On examination of the cervical spine, he reported pain at the base of the neck with slight tenderness. Flexion was recorded at 45º, extension at 30º, lateral flexion to the left at 45º, lateral flexion to the right at 30º, rotation to the left at 60º and rotation to the right at 30º.
On examination of the lumbar spine, he reported pain was indicated mainly to the left of the midline with some tenderness. He reported straight leg raising on the right was 60º, on the left 30º. He recorded flexion was to knee level and extension to 20º. He noted lateral flexion to the left was full and lateral flexion to the right was three quarter full. Rotation to the left was 60º and to the right 45º.
In respect of the upper limbs, he found no abnormality in the right upper limb. Left shoulder abduction and flexion were 105º, extension 40º, internal rotation 60º, external rotation 75º and adduction 30º.Resisted abduction produced mild pain in the upper left arm. Reflexes were present and symmetrical. Circumferences of the upper arms were equally 30cm and for the forearms 26cm on the right and 25cm on the left. He reported grip strength was strong and consistent with dominance.
Dr Hall found no evidence of inconsistency. He felt the claimant was fit for suitable duties.
Dr Hall diagnosed soft tissue injury of the neck associated with mild cervical spondylosis, soft tissue injury of the back associated with mild lumbar spondylosis and soft tissue injury of the left shoulder. He also assessed a 17% WPI.
In a supplementary report dated 7 April 2018 Dr Hall confirmed he found a full range of right shoulder movement.
Dr Hall reviewed Mr Trkulja by video and provided a report dated 17 April 2020.[25]
[25] AD3 p 19
He reported from mid-2018 until the prior week when the café closed due to COVID 19 Mr Trkulja worked as a barista for 3 hours a day four days a week. Mr Trkulja reported intermittent pain across the low back triggered by exercise, neck stiffness with intermittent pain felt at the base of the neck on the left occurring about twice a day. He also reported pain on his left shoulder if he lies on his left side or left shoulder pain caused by lifting or reaching.
On examination Dr Hall found that the range of neck flexion had decreased but extension had increased. Lateral flexion to the left had increased but rotation to the left had decreased. Movements to the right were unchanged and the asymmetry with reduced movement to the right persisted. He noted back movement was generally comparable but now lateral flexion was symmetrical. He reported left shoulder abduction and extension were decreased from his earlier examination, extension by 50%. He found there was painful and more limited abduction on this occasion.
Dr Hall stated having viewed the report of Mr Griffiths, mechanical engineer dated 3 March 2020 who had doubts about the veracity of Mr Trkulja’s claims because:
· the airbags did not deploy;
· progression from no complaints to pain in the neck, upper and lower back and left shoulder by the following morning appeared suspicious;
· there were no strictly objective abnormal physical signs;
· Mr Trkulja did not work from mid-2017 having two months off before that;
· inconsistencies in asymmetry of movements by reference to the reports of Ms Chugh of 3 May 2018 and Christian Byrnes of 22 March 2019, and
· Mr Trkulja’s motivation was questionable, noting Rehab Consulting’s closure reports where it was suggested he was not achieving progress towards goals.
Dr Hall diagnosed minor soft tissue injuries which had resolved. He concluded Mr Trkulja suffered no significant injury because of the accident. He did not consider there was any causal relationship between Mr Trkulja’s complaints and the accident.
Dr Hall reviewed the claimant and provided a report dated 25 January 2021.[26] He reported no formal physical treatment, home exercises daily and reported Mr Trkulja was taking Mersyndol five tablets a week, Somac, and Duloxetine, Panadol or Nurofen for headache. Mr Trkulja was consulting Dr Tomka fortnightly. Mr Trkulja continued to report intermittent pain across the low back, left shoulder pain on activity, intermittent pain at the basis of the left side of the neck and headaches four to five times a week.
[26] AD3 p 271.
He reported considerable reduction in left shoulder movement abduction 90º, adduction 30º, flexion 90º, extension 30º, external rotation 80º, and internal rotation 50º.
Dr Hall remained of the view that Mr Trkulja suffered no significant injury as a result of the accident. He stated the not entirely consistent asymmetry of movement can be attributed to Mr Trkulja’s knowledge of the importance of asymmetry in the assessment of permanent impairment. Dr Hall concluded Mr Trkulja had sustained soft tissue injuries which had largely recovered.
Dr Harvey, orthopaedic specialist
Dr Harvey assessed the clamant and provided a report dated 18 June 2019.[27]
[27] AD3 p 92.
He reported Mr Trkulja continued to complain of pain in the low back made worse by repetitive bending or prolonged standing. He also had pain at the base of the neck and over the left shoulder, aggravated by turning the head. He reported pain over the lateral and posterior aspects of the left humeral head when he tries to put his left hand to the back or elevate the left arm above his head. He has pain between the shoulder blades when he stands for long periods.
Mr Trkulja reported he had not returned to his pre-accident activities of attending the gym three to four times a week, playing social soccer and basketball.
On examination he found movements of the lumbar spine were of good range but caused him to complain of pain in the lower back. The right thigh measured 1cm more than the left whilst the calves were equal. Knee and ankle jerks were brisk and bilaterally equal. There was no sensory loss or muscle weakness in the lower limbs. Straight leg raising was to 60º on each side. The femoral stretch test was negative on both sides. Mr Trkulja complained of tenderness in the midline of the lower back.
Dr Harvey reported Mr Trkulja reported tenderness in the midline of the neck and in the muscles down the left side of the neck. Flexion, extension and rotation to the right caused complaint of pain at the base of the neck. Rotation of the thoracic spine was full but associated with complaint of pain.
Dr Harvey reported the biceps and triceps jerks were brisk and bilaterally equal. There was no muscle weakness or sensory disturbance in either upper extremity.
He recorded the following range of movement of the shoulders:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 110° Extension 50° 30° Adduction 50° 50° Abduction 180° 110° Internal Rotation 90° 90° External Rotation 90° 90°
Dr Harvey concluded Mr Trkulja had suffered soft tissue injuries to the neck, back and left shoulder. However, he did not consider it was likely the accident would have caused such widespread continuing pain and felt Mr Trkulja’s complaints could not be explained based on a physical musculoskeletal injury.
Dr Harvey concluded Mr Trkulja had not sustained any permanent impairment as a result of the accident.[28] He noted whilst he could not demonstrate a full range of active movement in the left shoulder, he noted inconsistencies. He concluded an assessment based on range of motion was not a valid parameter of impairment evaluation.
[28] AD3 p 101.
Vocational capacity centre, 28 June 2019
Mr John Raue undertook a vocational assessment on 19 June 2019.[29] The assessment was undertaken from a psychological perspective. He reported Mr Trkulja presented as extremely pain focused, his performance on testing was well-below levels expected and scores on several tests of validity raised concerns about the potential for malingering or exaggeration of symptoms.
[29] AD9 and 10 p 1.
George Haralambous, clinical psychologist.
Mr Haralambous assessed the claimant at the request of the insurer on 4 June 2019. In his report dated 22 July 2019.[30] Mr Haralambous administered psychometric testing and concluded there was a tendency to exaggerate the negative effects on psychological functioning of the accident.
[30] AD3 p 62.
Mr Haralambous stated Mr Trkulja did not present with an objectively verifiable psychological pathology that may be reasonably attributed to the accident but advised it was possible there was a persistent low grade depression.
Dr Thomas Sheehan, occupational physician
Dr Sheehan assessed the claimant at the request of his lawyer and provided a report dated 24 February 2020. He reported Mr Trkulja continued to experience constant neck, left shoulder and low back pain associated with stiffness.
Dr Sheehan reported thoracolumbar flexion and extension were witnessed to 40º and 20º respectively. Back rotation and lateral flexion to the right were limited to 30º and rotation and lateral flexion to the left were demonstrated to 50º. Straight leg raising on the right was to 90º but on the left restricted to 70º because of pain.
Dr Sheehan reported cervical spine flexion and extension were reduced by 30%, whilst neck rotation and lateral flexion to the right were only demonstrated to 30º. Cervical spine rotation and lateral flexion to the left were witnessed to 50º.
Dr Sheehan reported no muscle wasting, no guarding and no muscle spasm was noted. However, he noted restriction of movement of both the cervical and lumbar spine. He reported tenderness over the left shoulder subacromial space and restricted of movement.
Dr Sheehan detected tenderness over the left shoulder subacromial space. In relation to the left shoulder, he reported restriction in active range of motion in flexion at 90º, abduction at 70º, extension was diminished by 30º, external rotation demonstrated at 40º and internal rotation at 30º.
Dr Sheehan diagnosed the following caused by the accident:
· significant musculoligamentous strains/tears involving his cervical and lumbar spine;
· aggravations of pre-existing previous asymptomatic mild spondylotic changes in his cervical spine and lumbar spine;
· left shoulder joint subacromial bursitis;
· anxiety and depression, and
· accident precipitated gastrointestinal disturbance.
In a supplementary report Dr Sheehan assessed 20% WPI.
Dr Ron Muratore, sports and exercise physician
Dr Muratore examined the claimant and provided reports dated 13 August 2020 and 25 January 2021.[31] Mr Trkulja reported neck pain, headaches, left shoulder pain and pain from the mid to lower back.
[31] AD3 pp 318 and 271.
He recorded the following range of movement of the shoulders:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 90° Extension 50° 30° Adduction 40° 40° Abduction 180° 90° Internal Rotation 90° 90° External Rotation 90° 90°
He reported Mr Trkulja’s complaints were not reasonable and he exhibited non-organic features. He noted:
“• neck movements were accomplished in a cogwheel fashion;
· he reported widespread non anatomical tenderness on the trunk;
· he exhibited global weakness in all resisted movements of the left shoulder which was not consistent with the presence of an organic pathological lesion;
· simulated rotation, in which there is no change in the relative position of the hips and shoulders, that is, there is no movement occurring in the lumbar spine, was accompanied by the report of an increase in back pain;
· straight leg raise was limited by the report of back pain to 60º on the right, 30º on the left. However, Mr Trkulja was earlier able to sit on the side of the examination couch and extend each knee fully to perform the slump test, reporting back pain at the appoint, which is equivalent to a straight leg raise of 90%;
· the heel compression test was positive bilaterally;
· Hoover’s test was positive bilaterally;
· Burn’s test was positive.”
Dr Muratore concluded Mr Trkulja sustained no injuries in the accident although he questioned whether he may have a psychiatric condition, dissociative disorder or somatic symptom disorder. He concluded Mr Trkulja did not have any incapacity for employment and could perform his pre-injury duties.
Dr Muratore diagnosed neck, shoulder and back pain of indeterminate origin.
He assessed a 0% WPI. Whilst he reported Mr Trkulja exhibited a restricted range of movement in the left shoulder Dr Muratore considered the range of movement was under voluntary control and could not be used to assess WPI.
Dr Neil Berry, general surgeon
Dr Berry assessed the claimant at the request of his lawyer and provided a report dated 13 April 2023.
Dr Berry reported Mr Trkulja stated his neck remains sore and he suffers from occipital headaches. He said his left shoulder is stiff and sore, but the worst area is his back. He reported being very restricted in bending and lifting.
On examination of the cervical spine, he reported half the normal range of right rotation and a third of the normal range of right lateral flexion. Left rotation and left lateral flexion were normal. Extension was limited to half range and flexion was normal. He found no muscle spasm and no alteration of spinal contour.
Dr Berry reported the right upper extremity was normal in all respects. He reported flexion and abduction of the left shoulder were limited to 90 degrees, internal rotation and external rotation were to half range. Reflexes were intact and sensation was normal. There was no unilateral muscle wasting.
Dr Berry reported Mr Trkulja was tender in the lumbar spine but not the thoracic spine. He demonstrated half the normal range of flexion, a third of the normal range of extension and half the normal range of rotation and lateral flexion. Dr berry reported restricted straight leg raising on both sides. Reflexes were intact, sensation was normal and there was no unilateral muscle wasting.
Dr Berry concluded as a result of the accident Mr Trkulja sustained injuries to his neck, left shoulder and back.
Traffic engineer reports
Report of William Keramidas, traffic and transport engineer, 11 April 2019
Mr Keramidas provided a report at the request of the insurer.[32] He noted the insured vehicle (in which the claimant was a passenger) allegedly collided with the rear of the other vehicle. Whilst both vehicles were Pulsar vehicles for ease of reference in these reasons that vehicle will be referred to as the Pulsar.
[32] AD3 p 103.
He identified damage to the Pulsar with which the insured vehicle collided as an indentation sitting directly below the number ‘8’ on the number plate and a slight indentation in line with the inboard side of the taillight. He also noted a section of the taillight assembly consisting of red reflective plastic is missing and below that on the bumper bar he noted two small abrasive marks. He also noted on the near side of the Pulsar the plastic bumper bar surround had become partially dislodged.[33] Mr Keramidas concluded the crease to the rear bumper bar near the centre was consistent with having been formed by either a sharp edge or protrusion. He also noted damage to the front of the Pulsar (unrelated to this accident) and concluded given the numerous areas of damage and general condition of the vehicle it was understandable that it was assessed as uneconomical to repair.
[33] AD3 p 117.
Mr Keramidas concluded the impact speed was so low (well below 8 kmph) that it could not possibly cause the type of injuries alleged by the claimant.
Mr Keramidas provided an addendum report dated 7 May 2019.[34] He was asked to assume that the driver of the Pulsar claimed she was hit from behind with the first collision not pushing her car forward at all, a second later she felt a second collision which moved her vehicle forward about 30cm even with her foot on the brake and a second later she felt a third collision to the rear of her vehicle. She alleges the insured vehicle hit her vehicle directly behind square on, the whole back of her vehicle was damaged including the bumper bar and boot and her vehicle was towed from the scene.
[34] AD3 p 171.
Mr Keramidas then viewed an image of the insured vehicle depicting light front impact damage to the leading edge of the bonnet as well as two components missing, the central grille and the near-side indicator assembly. Comparing the damage with the rear of the Pulsar Mr Keramidas concluded there was a mismatch between the damage at the front of the insured vehicle and the rear of the Pulsar. Mr Keramidas also concluded the extent of damage to the front of the insured vehicle indicated at best a 5 to 10 kmph impact and reflects only a single impact to the front of the vehicle.
Me Keramidas states the description provided by the driver of the Pulsar of multiple impacts is inconsistent with the objective physical evidence of the damage occasioned to her vehicle and to the insured vehicle. He was also of the view there was no damage visible to the Pulsar sufficient to have disabled the vehicle requiring it to be towed.
Report of Grant Johnston, consulting engineer, 18 November 2019
Mr Johnston provided a report at the request of the claimant.[35]
[35] AD4 p 147.
Mr Johnston conceded the circular indentation on the rear bumper of the Pulsar is inconsistent with the interface of the two vehicles, but otherwise was of the view the damage on each vehicle was consistent with the suggested circumstances of the rear end collision.
Mr Johnston stated Mr Keramidas’ suggestion that the damage profiles were not scientifically valid was based on a flawed assumption about the respective stiffness coefficients when the engine structure is not engaged.
Report of Michael Griffiths, bio-medical and mechanical engineer, 3 March 2020
Mr Griffiths provided a report at the request of the insurer.[36]
[36] AD3 p 184.
He concluded that the damage to the Pulsar consisting of a boot lid rounded indent and a deep indent in the rear bumper could not have occurred in this incident.
After viewing a photograph of the insured vehicle Mr Griffith concluded that the discernible damage appeared to be limited to the left side front light cluster and on the leading edge of the bonnet. He was of the view the damage didn’t match the damage seen on the rear of the Pulsar. He concluded the damage to the two vehicles was not consistent with the alleged circumstances of the accident.
He concluded the maximum reduction in forward velocity which could have occurred without more evidence of damage would be 5 kmph for the insured vehicle in which Mr Trkulja was a passenger.
Mr Griffiths also concluded there was no possibility that “there was sufficient energy exchange, and reduction in forward velocity” for the claimant to receive the injuries he alleges.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions 27 May 2020 in respect of the initial medical dispute.[37]
[37] AD3 p 236.
The insurer referred to the report of Mr Keramidas. Whilst he thought it was unlikely, having regard to the damage to each vehicle, that the two vehicles had collided he considered the transmission of forces to each vehicle would have been minimal at best. The insurer also noted that Mr Griffiths concluded the maximum reduction in forward velocity of the insured vehicle would be 5 kmph. He also noted Mr Griffiths was of the opinion there was no possibility there were sufficient energies exchanged and reduction in forward velocity for the claimant to receive the alleged injuries.
The insurer referred to the report of Dr Hall dated 17 April 2020 where he revised his earlier opinion and concluded Mr Trkulja had suffered no significant injury as a result of the accident. It was noted in reaching this conclusion Dr Hall had regard to the opinion of Mr Griffiths and the inconsistency in asymmetry of movement observed by medical examiners.
The insurer submits Dr Harvey having examined the claimant and reviewing the imaging found the claimant may have suffered soft tissue injuries to the neck, back and left shoulder, although he felt the continued complaints of pain were not explained by any physical or musculoskeletal injury.
The insurer notes Dr Roberts, psychiatrist found no evidence of a psychiatric diagnosis and considered there were inaccuracies in the histories provided by the claimant to medical examiners. The insurer also noted Mr Haralambous concluded that the results of psychometric testing were not consistent with functionally limiting manifestations of diagnosable psychological pathology attributable to the accident.
The insurer provided submissions dated 13 April 2022 in support of the application for review of the assessment of Medical Assessor Shahzad.[38]
[38] AD3 p 294 and AD1 p 1.
The insurer submitted Medical Assessor Shahzad’s assessment:
· failed to consider the relevant material where there is no reference to the insurer’s evidence other than the report of Dr Muratore dated 11 November 2021;
· failed to provide sufficient reasons, particularly in relation to causation having regard to the opinions of Mr Keramidas, Mr Griffiths, Dr Hall and Dr Harvey;
· failed to afford procedural fairness where no reference was made to the insurer’s submissions and to the insurer’s evidence which raised issues in regards to consistency of presentation and causation of the claimant’s injuries, and
· failed to comply with test of consistency in accordance with the Guidelines, where he did not bring to the attention of the claimant the inconsistencies outlined in the reports of Mr Griffiths, Dr Hall, Dr Harvey and Mr Muratore. The insurer also argued Medical Assessor Shahzad failed to properly assess the shoulder impairment where he did not advise whether all measurements were undertaken three times.
Claimant’s submissions
The claimant provided submissions dated 11 May 2022 in response to the application for review of the assessment of Medical Assessor Shahzad.[39] These submissions address the test to be considered by the President’s delegate.
[39] AD2 p 11
EXAMINATION
Mr Trkulja was examined by Medical Assessor Assem and Medical Assessor Stubbs at Parramatta on Friday 24 November 2023. An interpreter Rachel Topic NIN 9106 was also present. Mr Trkulja travelled to Parramatta from Liverpool by train in the company of his father.
Background
Mr Trkulja is presently 37 years old. He migrated from Serbia/Croatia with his extended family. He has since gone on to complete a degree in business and commerce at the University of Western Sydney.
At the time of the accident, he was working with ALDI on a part-time basis of about 25 hours per week and with a local butcher for 35 hours per week. He lived at Cabramatta with his father and grandmother, stepmother and seven stepsiblings to live in a four-bedroom house. He played social soccer and attended a gymnasium for which he had fortnightly deductions made from his credit card. He regarded himself as well.
The accident
The accident occurred on Tuesday 3 January 2017. Mr Trkulja was travelling with his butcher employer and other men to the livestock auction at Campbelltown with the intention of buying an animal to slaughter. The car was an elderly Nissan Pulsar sedan driven by his boss’s father. He was one of two back seat passengers and was sitting on the passenger side. The vehicle ran into the rear of another old model Nissan Pulsar sedan. He was pitched forward and hit his left side on the passenger door.
Neither police or ambulance attended the accident and as far as Mr Trkulja is aware nobody attended hospital. He says the car was towed away and he has no knowledge of what happened to the vehicle subsequently. He said all the occupants suffered injury, but he does not know the status of their claims.
Mr Trkulja developed discomfort in the neck and back and at the point of the left shoulder, together with paracentral lumbar pain to the right. He went to see Dr Tonka the following day. His usual doctor is Dr Phan, but he was told Dr Phan “Was very busy and doesn’t do CTP (compulsory third party).”
Mr Trkulja returned to work with ALDI but after a few days he spoke with his manager about his work duties. He was at that stage employed on a part-time basis. He had a certificate from Dr Tonka, which only certified him fit to perform limited duties. This was not acceptable to ALDI management, and he was dismissed. Following the accident, he did not return to work at the butchers.
He was eventually able to obtain part-time work as a barista for three to four hours three days a week at the Echo Café in Liverpool.
Mr Trkulja made numerous applications for jobs that were suited to his recently acquired degree, but he has not received any interview invitations. He cancelled the gym membership.
Shortly after the accident Mr Trkulja moved out of the family home and went to live with his fiancée, a schoolteacher, in a flat in Liverpool.
Present symptoms
Mr Trkulja continues to have pain in the left trapezial region and may develop headaches. He also complained of pain and stiffness in the left shoulder and low back.
Most recently he underwent a gastroscopy for reflux which he attributed to the medication required to treat his pain. His clinical records indicate that the gastroscopy results showed no abnormalities. It is one of a series of gastroscopies that go back well before the accident. When questioned Mr Trkulja conceded he had a prior history of gastrointestinal upset, and this required more than the one gastroscopy he initially recalled. He said the gastroscopy showed lactose intolerance and those symptoms are quite different from the reflux he now experiences.
His muscular pains have not improved and still cause inconvenience. He takes duloxetine for depression and paracetamol for pain. The courses of physiotherapy have not improved his condition. He continues to do home-based exercise using yellow and green Thera bands (light-resistance) and stretching exercises.
The symptoms persist and whilst they do so he is making no progress getting back to full-time employment. He is currently doing some courses in computer administration that he hopes will make his CV (curriculum vitae) more attractive.
Physical examination
Mr Trkulja is 175cm tall and weighs 85kg. He was examined in his underwear. He has a normal standing balance and can tip toe and heel toe walk. He pointed to the left trapezial area as a continuing source of pain.
Cervical spine
The Medical Assessors observed normal posture but also observed range of motion was limited in the formal examination. It was pointed out to Mr Trkulja that his observed spontaneous movement was fuller than the movement he displayed on formal examination. He said he was concerned the examination would worsen his pain levels.
Mr Trkulja had a limited but symmetrical range of motion to half normal in all directions which improved with encouragement. There was a complaint of tenderness over the left trapezius to firm pressure but no guarding or spasm. Nerve compression and traction tests were negative. Girth of the upper limbs was measured at 33cm on the right and 32.5cm on the left and at 24cm in both forearms. Reflexes were brisk and symmetrical and there was no sensory loss.
The pain seemed to be present all the time. It was not increased by coughing or sneezing but does become more prominent with computer work. At the time of the examination Mr Trkulja described his level of pain as 5/10 from 7/10 initially.
Upper limbs
The Medical Assessors found full unrestricted movement of the right shoulder.
The left shoulder range of motion was measured with three consistent repetitions in accordance with the guidelines. The examination exhibited reduced mobility, as detailed in the following table:
Right Left – one Left-two Left-three Flexion 180° 100° 100° 90° Extension 60 40° 50° 30° Abduction 180° 90° 80° 70° Adduction 50° 40° 15° 15° External rotation 90° 90° 80° 50° Internal rotation 90° 90° 80° 30°
The significant reduction in left shoulder mobility raises questions, especially in light of the lack of significant pathology on radiological imaging. The shoulder musculature showed no sign of wasting with normal contour. Grip strength was modest at 4/5 on the right. Left shoulder strength in the neutral position was measured at 4/5 on both sides. There were no impingement signs or clicks in the right shoulder. The Medical Assessors observed localised tenderness in the left shoulder with clicking over the left acromioclavicular joint when the examiner performed passive circumduction. The impingement test was uncomfortable, but Speed’s test was negative.
The Panel is satisfied the claimant sustained a local left acromioclavicular joint injury.
Thoracic spine
There was no tenderness, muscle guarding or spasm. The limitations in rotation observed in the thoracolumbar and lumbosacral movements were due to pain arising from the lumbar spine.
Lumbar spine
The movement of the lumbar spine was notably guarded during flexion and extension while it approached normalcy in side bending, with fingertips reaching the knee joint line equally on both the right and left sides. Rotation was full, with right equalling left. Knee extension when sitting was full with a negative slump test. Straight leg raising was to 40° and right equalled left with a negative traction sign. Tenderness was experienced over the lower back slightly more on the left without radiation. Tenderness was not accompanied by spasm or guarding. Reflexes were brisk and symmetrical. The circumference of the thighs 10cm above the superior pole of the patella are equal at 40cm and the circumference of the calves equal at 35cm. There was no sensory loss. Power is clinical grade 5/5.
The lower limbs were normal.
RADIOLOGICAL INVESTIGATIONS
MRI lumbosacral spine, 24 March 2017 – the report concludes:
”Minimal spondylitic changes only as described. No annular tear or focal disc protrusion. No definite neural impingement at any level”.[40]
[40] AD4 p 35.
MRI cervical spine, 30 March 2017 – the report concludes:
“1. No MR features of definite nerve root compression or impingement.
2. No significant wedging or loss of cervical vertebral body height.
3. No spondylolistheses of the visualised cervical vertebrae.
4. No abnormal cord signal to suggest cord oedema or cervical myelomalacia.”[41]
Mr Trkulja brought the images to the examination on a DVD. The MRI of the cervical spine was requested by Dr Tomka. Medical Assessors Stubbs and Assem reviewed the images using the embedded software. The Medical Assessors concluded the minor age-related changes where essentially normal findings for the claimant’s age. The reported neural exit foraminal narrowing was noted to be very minor and in keeping with an essentially normal study for the claimant’s age.
[41] AD4 p 33.
Ultrasound left shoulder, 30 March 2017 – the report concludes:
“No discrete rotator cuff tear.
Subacromial bursitis.”[42]
[42] AD4 p 34.
MRI thoracic spine, 20 April 2017 – the report concludes:
“No spinal canal nor foraminal compromise and no suggestion of spinal injury.”[43]
Mr Trkulja brought the images to the examination on a DVD. The MRI of the thoracic spine was requested by Dr Guirgis. Medical Assessors Stubbs and Assem reviewed the images using the embedded software.
The Medical Assessors noted the minor mid-level Scheuermann’s disease with the apical disc being narrower and darker than the proximal and distal discs with a slight senile bulge. The spinal canal was otherwise normal. A small soft tissue bulge at approximately the T4 level appeared to be muscular. Transverse views demonstrated an adequate spinal canal. There was a surprising degree of fatty atrophy in the spinal musculature. The T2-weighted images showed no reactive signs.
[43] AD4 p 36.
MRI left shoulder, 9 May 2017 – the report concludes:
“Mild subcromial bursitis with anterolaterally downsloping acromion without rotator cuff pathology.” [44]
This is a scan taken by Castlereagh Imaging – Med Scan Merrylands requested by Dr Tomka. Mr Trkulja brought the images to the examination on a DVD. Medical Assessors Stubbs and Assem read the DVD using the embedded software.
The Medical Assessors noted the T2 imaging showed a slight inferior bony blush on the under surface of the distal clavicle acromioclavicular joint. There was very modest fluid in the subacromial bursa. Medical Assessors Stubbs and Assem concluded this was essentially a normal study.
[44] AD4 p 37.
MRI cervical spine, 25 January 2018 – the report concludes:
“Mild multilevel cervical spondylotic changes with sites of central canal and neural exit foraminal narrowing as described. No site of definite nerve root impingement.”[45]
[45] AD4 p 40.
MRI lumbar spine, 21 February 2018 – the report concludes:
“Mild multilevel lumbar spine spondylotic changes with no site of nerve root impingement identified.”[46]
Medical Assessors Stubbs and Assem viewed the hard copy images taken by Castlereagh Imaging. The MRI of the lumbar spine was requested by Dr Tomka. Medical Assessors Stubbs and Assem noted a capacious spinal canal with no nerve entrapment. There was well preserved disc height and strong high-intensity nuclear signal. There was marked fatty atrophy of the spinal musculature and minor disc bulges consistent with age. The Panel considers this to be a normal study in a 30+ year old male with the only abnormal findings the precocious degeneration in the musculature. The disc bulging is normal for age, it is not moderate only mild.
[46] AD4 p 39.
Conclusion reached following review of imaging
The imaging reviewed by Medical Assessors Stubbs and Assem during the examination align with those typical of a male in his mid-30s, exhibiting mild adolescent Scheuermann's disease, a commonly observed condition. Notably, there was evidence of precocious spinal musculature degeneration, indicative of a sedentary lifestyle associated with university studies and sporadic physical activity. No injury to the spine or shoulder is evident from the imaging.
These studies were conducted within a timeframe suitable for detecting acute bony and ligamentous injuries, should they have been caused by the accident.
CONSISTENCY
The Panel has regard to clause 6.40 of the Guidelines in relation to consistency. The Panel notes not only the inconsistency demonstrated by the claimant during the examination by Medical Assessors Stubbs and Assem but also the inconsistency in range of movement of the left shoulder as recorded by Drs Guirgis, Hall, Harvey, Sheehan and Muratore.
The claimant’s response that the inconsistency in range of movement when examined by medical assessors was because he was concerned the examination would worsen his pain levels is unsatisfactory particularly given the varied range of movement demonstrated not only during the examination but also by comparison to his presentation to earlier medical examiners.
The Panel is of the view the claimant’s presentation should be treated with caution.
DIAGNOSIS AND CAUSATION
In Briggs v IAG Limited trading as NRMA Insurance[1] his Honour Justice Wright reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70]-[72]:
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
[2] Briggs [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
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].”
The claimant reported pain in the neck, upper and lower back and the left shoulder when he sought treatment from Dr Tomka on 4 January 2017, the day following the accident and not only did Dr Tomka report limited range of movement he also noted obvious spasm of the neck muscles.
The Motor Accident Personal Injury Claim Form dated 16 January 2017 nominated injury to the neck, upper and low back and left shoulder.
In his report dated 4 April 2017 Dr Guirgis reported Mr Trkulja complained of injuries to the neck, left shoulder, mid back and lower back.
Thereafter, there has been a consistency of complaint relating to injury to the neck, upper and low back and the left shoulder.
On 12 March 2018 Dr Guirgis reported tenderness, restriction of movement and muscle spasm in the para-cervical muscles. However, he did not report any neurological deficit in the upper limbs. In relation to the lumbar spine Dr Guirgis also reported tenderness and restriction of movement of the lumbar spine with spasm of the paraspinal lumbar muscles.
Significantly, even Dr Hall who resiled from his initial assessment given the report of Mr Griffiths, the lack of objective abnormal physical signs, and the evidence of inconsistency in asymmetry of movement accepted Mr Trkulja had sustained minor soft tissue injuries, albeit he was of the view they had resolved. Dr Harvey also concluded Mr Trkulja had suffered soft tissue injuries to the neck, back and left shoulder although he felt the complaints could not be explained based on a physical musculoskeletal injury.
The Panel has reviewed the reports of engineers Mr Keramidas, Mr Johnston and Mr Griffiths. Whilst it is argued the evidence of the driver of the Pulsar which was hit from behind is not consistent with the damage to both vehicles there is no evidence before the Panel that it is the claimant who has asserted there were multiple impacts or that the damage to the back of that car was sufficient to disable it. Both Mr Keramidas and Mr Griffiths accept the possibility of a rear end collision, albeit at low speed whilst Mr Johnston accepted, other than the circular indentation on the rear bumper of the Pulsar, that the damage on each vehicle was consistent with a rear end collision.
Noting the legal test as to causation does not require scientific certainty the Panel accepts the rear end collision was sufficient to cause the injury and having regard to the contemporaneous complaints made by Mr Trkulja the Panel is satisfied the claimant sustained injury to his neck, upper and low back and left shoulder in the collision.
However, whilst the neck, upper and low back, and left shoulder injuries were reported the day after the accident, subsequent physical examinations and imaging studies reveal no significant injury. Importantly, the limited range of movement noted during examination is not corroborated by evidence of muscle wasting or consistent restriction in rotation, which would typically be present in cases of significant shoulder injury.
The observed soft tissue injuries to the neck, upper and low back, and left shoulder could be effectively managed through a targeted remedial exercise program, addressing the apparent atrophy in spinal musculature.
The Panel finds the claimant sustained soft tissue injuries to the cervical spine, the thoracic spine, the lumbar spine and the left shoulder caused by the accident.
ASSESSMENT OF PERMANENT IMPAIRMENT
Cervical spine
There are complaints of pain. On examination there was symmetrical movement without spasm or guarding and no radicular features. Mr Trkulja’s condition is consistent with a Diagnosis-related estimate (DRE) Cervicothoracic Category I or 0% WPI (AMA 4 Guides, 3/104)
Thoracic spine
There were complaints of pain, but no tenderness, muscle guarding or spasm. There were no radicular features and no indication of impairment related to injury giving rise to a DRE Thoracolumbar Category 1 or 0% WPI (AMA 4 Guides, Table 74, p 111).
Lumbar spine
There are complaints of pain. On examination there was symmetrical movement without spasm or guarding and no radicular features giving a DRE Lumbosacral Category I or 0% WPI (AMA 4 Guides, Table 72, p 110)
Left shoulder
The Panel finds injury to the left shoulder was plausibly caused by direct impact with the rear passenger door in the accident.
Upon repeated testing, the claimant’s shoulder movements were found to be relatively consistent. The range of motion observed was similar to the findings previously documented by Drs Shahzad, Harvey and Muratore. However, this observed restriction in shoulder movement did not correspond with the radiological imaging, which did not reveal significant pathology that could explain the limitations. Furthermore, there was no indication that these limitations were secondary to symptoms originating from the cervical spine.
Based on our clinical judgment, the Panel concluded that the limitations in shoulder movement observed during the examination did not accurately reflect the true nature of the injury, particularly considering the minor abnormalities noted on the radiological imaging. Therefore, we determined that using range of motion as a method to evaluate the claimant's level of impairment was not reliable in this case. This conclusion was reached after careful consideration of both the clinical findings and the radiological evidence, which collectively suggested a disparity between the observed physical limitations and the pathological evidence typically associated with significant shoulder injuries.
Consequently, the discrepancy between the clinical observations and the radiological findings led the Panel to conclude that range of motion was not a reliable and valid method for evaluating his level of impairment in accordance with clauses 1.50.4 and 1.50.5 of the Guidelines.
The Panel finds there is no evidence of significant left shoulder dysfunction as there is no muscle wasting and no significant pathology on radiological imaging. In accordance with clause 1.26 of the Guidelines the Panel proposed to assess impairment by analogy.
The Panel found left shoulder crepitus in the left acromioclavicular joint. An analogous condition would be mild crepitations of the right acromioclavicular joint giving 10% joint impairment (AMA 4, Table 19, p 59) which is multiplied by 15% WPI (AMA 4, Table 18, p 58) to obtain 1.5% WPI rounded to 2% WPI.
Combined impairment
The combined impairment is 2% WPI.
CONCLUSION
The Panel revokes the Certificate of Medical Assessor Farhan Shahzad dated 17 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI of 2%:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left shoulder – soft tissue injury.
mencement of these Reasons.
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