Insurance Australia Limited t/as NRMA Insurance v Trkulja
[2022] NSWPICMP 533
•9 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Trkulja [2022] NSWPICMP 533 |
| CLAIMANT: | Bojan Trkulja |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Robert Foggo |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 9 December 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of Medical Assessment Certificate (MAC) dated 17 March 2022; finding of 17% whole person impairment; 27 July 2022 Panel advises of preliminary view that clinical examination of the claimant by the Panel not required; further submissions by insurer that inconsistencies noted in insurer’s medico legal opinion should be put to claimant by Panel; Sydney Trains v Batshon, Partridge v IAG Ltd T/as NRMA Insurance and clause 4(a)(i)-(ii) of the Review Panel Practice Note 3/2005, considered; insurer’s interpretation definition of “medical records” of clause 1.41 of the Motor Accidents Authority Permanent Impairment Guidelines, 1 October 2017 (Guidelines) rejected as not included in clause 1.18.1; each of the medico-legal reports relied on by insurer found to contravene Guidelines and procedurally unfair as inconsistencies not put to claimant at time of medico-legal examination; QBE v Shah holding that only inconsistencies which are material need to be put to claimant followed by Panel; no evidence from insurer that alleged inconsistencies are material; application for clinical examination of the claimant rejected; causation; conflicting expert reports whether the force of the collision in which the claimant was involved was sufficient to cause the alleged injuries; Glossary page 316 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, clause 1.9 of Motor Accident Guidelines and Jones v NRMA followed; Amin v Vidal followed regarding reliance on photographs by accident reconstruction experts; Fox v Percy applied; “apparent logic of events” at odds with accident reconstruction reports relied on by insurer; claimant’s expert opinion not challenged by insurer’s experts; Panel not persuaded that forces involved in the collision were insufficient to cause claimant’s injuries; Held – MAC confirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Assessor Dr Shahzad 1. The Review Panel confirms the Certificate dated 17 March 2022. |
REASONS
Background
On 3 January 2017, the claimant was a passenger in the back seat of a Nissan Pulsar sedan driven by George Zimonja which collided with the rear of another Nissan Pulsar sedan, driven by Ms Rahimi. She maintained that there were three collisions in her statement (A9 of the Insurer’s documents provided to the Review Panel) and assessed the force of each of the collisions, ascribing 3 to 4/10 as being the force of the first impact, 7/10 as being the force of the second impact, and 3 or 4/10 as being the force of the third impact (paragraphs 33 and 34).
After extricating herself from her vehicle, she inspected her vehicle which she believed was “really badly damaged” (paragraph 39 of her statement), and that “the other vehicle hit mine directly behind square on, based on the damage to my vehicle.”
Ms Rahimi, in this her statement
a.denied that the vehicle had been involved in any collisions prior to the accident,
b.nor did it have any pre-existing damage (paragraph 18);
c.that a lot of people came out of their houses to look at the accident scene (paragraph 38);
d.both the police and ambulance arrived after a few minutes (paragraph 43);
e.she gave a statement to the police at that time (paragraph 44);
f.a tow truck driver attended the accident and drove her and her son to the panel beaters shop, and her husband picked her and her son up from there (paragraph 46);
g.she did not observe the other vehicle being towed away (paragraph 53);
h.both she and her son did not suffer any injuries in the collision (paragraph 56);
i.the occupants of the other vehicle did not appear to be injured or distressed (paragraph 49);
j.she called her insurer whilst at the scene and then asked the other driver for his insurance details,
k.she was told that his vehicle was uninsured, and her vehicle was written off due to the level of damage (paragraph 61).
Having admitted liability on behalf Mr Zimonja, on 9 May 2018 the insurer conceded that the claimant’s injuries were in excess of 10% whole person impairment (R 13 of the claimant’s documents, page 43).
On 22 August 2019, the insurer wrote to the claimant’s solicitors and withdrew the concession that the claimant’s injuries exceeded the 10% threshold (insurer’s bundle A 10, page 258.) This decision, the insurer asserted, was based on the attached reports of Dr Harvey of 8 July 2019 and 18 June 2019, and Mr Rau of 28 June 2019. Pursuant to a Direction from the panel, the insurer provided this latter document which had not been included in the material before the panel. The report revealed that Mr Rau is a vocational psychologist, who at page 11 of his report, stated that the evaluation of the claimant’s physical limitations was beyond his expertise. As far as the panel can discern, he offered no opinion as to why the insurer’s initial concession that the claimant’s whole person impairment exceeded 10% had been withdrawn.
Dr Harvey found no objective clinical radiological evidence that the claimant suffered any permanent musculoskeletal injury which should cause him any continuing problems into the future (insurer’s documents page 99).
No reference in the insurer’s letter withdrawing the concession was made to the report of Mr Keramidas of 11 April 2019.
The claimant accordingly sought a determination by MAS of his whole person impairment, and on 17 March 2022 medical assessor Dr Shahzad issued a Certificate that the claimant’s injuries caused by the motor vehicle accident gave rise to a permanent impairment of 17% whole person impairment.
The Review
The application for referral of the medical assessment of Medical Assessor Dr Shahzad to a Review Panel (Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment, in respect of which the review is sought.
The Delegate of the President referred the medical assessment to the Panel as he was satisfied that 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions at section 7.26 (5A) of the MAI Act provide that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 provides that the Panel determines how it conducts and determines the proceedings and that it may determine the proceedings solely based on the written application.
All Panel members have had no previous involvement with the Claimant or with this matter.
Section 7.26(6) of the MAI Act provides that the review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
Assessment under Review
The insurer challenged the findings of assessor Shahzad that the impairments to the claimant’s cervical spine, left shoulder and lumbar spine caused by the motor vehicle accident. It also disputed the finding that the claimant had a 5% impairment of the lumbar spine and an 8% impairment of the left shoulder on the basis that the assessor had not verified his findings of dysmetria to the lumbar spine and left shoulder, and had failed to apply the test of consistency when measuring the range of motion of the claimant’s left shoulder.
Having considered all of the material submitted by the parties, the panel rejected the insurer’s contention that the assessor had not verified his findings of dysmetria of the lumbar spine, for reasons set out in the panel’s Report and Directions of 27 July 2022.
The panel accepted the insurer’s contention that the assessor had incorrectly referred to body landmarks, but noted that the assessor found that the claimant’s rotation to the right was reduced by one half. Accordingly, the panel rejected the insurer’s contention that the finding of dysmetria was not verified. The panel also rejected the insurer’s contention that the assessor had failed to apply the test of consistency in respect of the assessor’s measurement of the claimant’s range of motion of his left shoulder, for reasons set out in the Report and Directions of 27 July 2022.
The panel accordingly advised the parties that it had come to the preliminary view that a further clinical examination of the claimant by the panel members was not required, and sought the parties agreement to this course. The claimant consented to this course of action.
The insurer objected to this course, and provided the panel with further detailed submissions of 3 August 2022. The claimant provided submissions in reply on 12 August 2022. The panel provided a Report and Directions of 6 September 2022 in which it set out the reasons why it was not persuaded by either the insurer’s submissions, or by reviewing all of the material before it, that a re-examination of the claimant was appropriate.
The panel rejected the insurer’s contention that the panel was required to examine the claimant in order that the observations of inconsistency made by Dr Hall, Dr Roberts, Dr Harvey and Mr Haralambous, could be put to the claimant by the panel members examining him. The panel provided reasons why this submission was misguided.
The insurer’s submissions of 3 August 2022 did not seek to re-agitate its previous contentions that the assessor had not verified his findings of dysmetria, and that he had failed to apply the test of consistency in respect of the claimant’s left shoulder. As there was no other reason that the panel could discern from the insurer’s submissions why a clinical re-examination was required, it determined that a re-examination of the claimant would serve no purpose, and that it would separately determine the insurer’s contention that the motor vehicle accident was not the cause of the injuries to the claimant’s cervical spine, lumbar spine and left shoulder.
MATERIAL BEFORE THE REVIEW PANEL
The insurer’s material and submissions
On 11 October 2022, the insurer confirmed that the material upon which it relied for its contention that the motor vehicle accident did not cause the injuries to the claimant’s cervical spine, lumbar spine and left shoulder were those set out in paragraph 17 of the insurer’s submissions at pages 296 – 298 of the insurer’s documents. Those matters were, the statement of Ms Rahimi, the reports of Mr Keramidas, the report of Mr Griffith and the reports of Dr Hall and the report of Dr Harvey. It also confirmed that it did not wish to make any further submissions, or provide any additional material.
The insurer’s initial submissions (A 8) noted that Mr Keramidas found that the most prominent damage to the rear of Ms Rahimi’s vehicle was a narrow penetration to the bumper bar, in line with number “8” on the number plate. He also noted damage to the boot lid and the near side of the surround from the photographs provided to him, one of which also showed light impact frontal damage to the vehicle of Mr Zemonja. Having compared the damage to the two vehicles, Mr Keramidas concluded that there was a mismatch of the damage depicted.
The submissions pointed out that the photographs of the damage to Mr Zemonja’s vehicle, as interpreted by Mr Keramidas, indicated that at most it had been involved in a 5 to 10 kph impact, and that only one impact had occurred. He also discerned from the photographs that the number plates on Ms Rahimi’s vehicle had been fixed to different locations on the vehicle.
The submissions pointed to Mr Keramidas’ conclusion that his analysis raised the question, whether the vehicle depicted in the photographs was in fact the vehicle involved in the incident, or alternatively that Ms Rahimi was mistaken about the number of collisions as well as the severity of the impact. He also determined that his examination of the photographs of the damage to her vehicle led him to conclude that it would not have been necessary for the vehicle to be towed away, contrary to what had been asserted by Ms Rahimi in her statement.
The insurer also relied on the report of Mr Griffiths, a biomechanical engineer of 3 March 2020 (A 7), and on his conclusion that “if it is conservatively considered that the energy absorbing structures integrated into the front bumper of Zemonja’s Pulsar, the Pulsar may have absorbed some energy without any evidence superficial damage to the front bumper cover of Zemonja’s Pulsar, then based on this author’s conduct of low speed property damage tests and his observations of the conduct of low-speed property damage crash test by other research facilities, it is deduced that the maximum reduction in forward philosophy which could have occurred without more evident damage would be 5 km/hr for the vehicle in which Mr Bojan Trkulja was seated.”
The insurer’s submissions pointed out that Mr Griffiths concluded that because of both a forward direction and minimal magnitude of the incident, compared to the capacity of the crash worthiness systems with which the vehicle was fitted, there was no possibility that there was sufficient energy exchanged nor reduction in forward velocity sufficient for the claimant to have suffered the injuries which he alleges were caused by the motor vehicle accident.
The insurer’s submissions also rely on the reports of Dr Hall and Dr Harvey, However, in both Reports and Directions issued by the panel, it has accepted the claimant’s submissions that these reports do not comply with clause 1.41 of the M AA Permanent Impairment Guidelines, and accordingly have not been accepted by the panel.
In the insurer’s final submissions, it relies on the report of Dr Muratore of 11 November 2021. He had been supplied with a report of Mr Griffiths of 3 March 2020 and concluded that the claimant sustained no injuries and motor vehicle accident. However, the panel notes that he made a number of findings of inconsistency. These were at page 283 of the insurer’s documents: trunk tenderness from T10 to S2; global weakness of the left shoulder. At page 284, there was a finding of inconsistency in respect of the lumbar spine, and at page 285 he found that both Hoover’s test and Byrne’s test were positive. As none of these inconsistencies were put to the claimant as required by the Guidelines, the panel is unable to rely upon this report.
Dr Muratore‘s additional report of 13 August 2020 was also relied upon by the insurer in its submissions. As his examination of the claimant and his comments appears to be identical to examination and comments contained in his initial report, and as he has also not put any of the inconsistencies noted by him on this occasion to the claimant, this report also cannot be considered by the panel.
The claimant’s material and submissions
The claimant’s solicitors confirmed that reliance was placed on the submissions set out at pages 236 – 237 of the claimant’s documents, and the report of Mr Johnson (pages 123 – 168 claimant’s documents.)
The submissions point out that Mr Johnson considers the matters raised by Mr Keramidas in his initial report, commenting on them at pages 144 – 146 of the claimant’s documents. He concludes at page 145 that the stamping type items were probably pre-existing as there is no corresponding damage to suggest that they were transmitted by any force applied during the accident.
Discussion
Causation
Causation is defined in the Glossary at page 316 of the AMA 4 Guides to the Evaluation of Permanent Impairment 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:
(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.'This, therefore, involves a medical decision and a non-medical informed judgement.
36. Clause 1.9 of the Motor Accident guidelines also addresses the issue of causation:
1.9 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.
37. In Jones v NRMA [2022] NSWPICMP 54, the Panel reviewed recent decisions of NSW Supreme Court as to how medical review panels should approach the issue of causation:
44. In Ackling v QBE Insurance (Aust) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881 (Ackling), Johnson J pointed out that it should be kept in mind “that the assessment of the degree of permanent impairment of an injured person as a result of injury caused by a motor accident is to be undertaken by medical practitioners acting as medical assessors at first instance or as members of a review panel”. His Honour said the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one”, and that it is “important that the process is not rendered unduly complex by legal terminology”.
45. Johnson J commented at [87] that in undertaking the task of assessing causation, a review panel will derive practical assistance from clauses 1.7 to 1.9 of the Permanent Impairment Guidelines.
46. In Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650, Campbell J at [27] agreed with Johnson J’s approach in Ackling. However, he made a further comment concerning the use of s 5D of the Civil Liability Act 2002 (NSW) by a review panel with respect to the similar provisions in the Permanent Impairment Guidelines. Campbell J said:
“[27] 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 assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the 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)).”
47. Accordingly, clauses 1.8 and 1.9 of the Guidelines must be read in conjunction with the common law, as modified by s 5D of the Civil Liability Act 2002. Section 5D reads:
“5D 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’).”48. The assessment of causation under s 5D involves two elements: “factual causation” under s 5D(1)(a) and “scope of liability” under s 5D(1)(b): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [42] (Adeels Palace); Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [12]. The consideration of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test. That is, but for the negligent act or omission, would the harm have occurred (see Adeels Palace at [45]). The determination of scope of liability under s 5D(1)(b) involves a value judgment, as does the determination of factual causation.
49. There is a conflict between s 5D and cls 1.8 and 1.7 of the Guidelines. Section 5D(1)(a) mandates the use of the “but for” test, however, 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”.
50. Consequently, while a review panel must take into account legal notions of causation (s 5D and the common law principles), it is also permitted to seek guidance in cls 1.7 to 1.9 of the Guidelines (which does not necessitate the use of the “but for” test, but rather involves a determination of material contribution) and it is not strictly bound to apply the true legal test for causation – see Pham v NRMA [2015] NSWSC 360.
The present panel respectfully agrees with the analysis and conclusion set out above. However, in the present matter, the insurer has not challenged the claimant’s submission that the medical reports upon which the insurer relies do not comply with clause 1.41 of the MAA Permanent Impairment Guidelines. This submission is clearly correct, and the panel is accordingly obliged to exclude from consideration all of the medical reports relied upon by the insurer.
None of the medical reports relied on by the claimant address the issue whether the accident was of sufficient force to cause the injuries and ongoing disabilities of which the claimant alleges were the result of the motor vehicle accident. It therefore follows that the issue as to whether the motor vehicle accident caused or materially contributed to the claimant’s injuries and ongoing disabilities is confined to the competing opinions of the accident reconstruction experts relied upon by each party, as well as the submissions based on reports of Mr Keramidas, Mr Johnson and Mr Griffith.
The accident reconstruction reports
Mr Johnson agrees with Mr Keramidas that the circular indentation on the rear bumper of Ms Rahimi’s vehicle does not have an obvious counterpart in the other vehicle which would have created the shape. However, he notes there is no certainty that this damage occurred in the accident, and notes that he has seen other bumper covers adopt unusual shapes due to the underlying support. He concludes that the damage is consistent with the suggested circumstances of the accident.
In his final conclusion at page 147, he rejects Mr Keramidas’ suggestion that the damage profiles are not scientifically valid, because he contends that Mr Keramidas has relied on flawed assumptions as to the respective stiffness coefficients when the engine structure is not damaged.
The panel notes that in report of Mr Keramidas, when discussing the police report of the accident at pages 107 – 108 of the insurer’s documents, that he has not included the entirety of the report. The significance of this is that full police report replicated at page 198 of the insurer’s bundle in the report of Mr Griffiths, discloses the entry “tow away only” after the words “Further Class:” in addition, the police report’s penultimate entry is “Were any vehicles towed or carried away by another vehicle? Y”.
It is clear from the report and also Ms Rahimi’s statement that the officer who completed it attended the accident scene. Accordingly, the conclusion that Mr Keramidas draws from him his analysis that Ms Rahimi’s vehicle was not towed away is refuted not only by her statement, but also by the police report.
In addition, the fact that the property damage file relied on by Mr Keramidas shows that Ms Rahimi’s vehicle was written off, which one would think will also provide compelling conclusion that it had been towed away.
The Supreme Court of the ACT in Amin v Vidal [2020] ACTSC227 at [64] made the following observation in respect of the reliance solely on photographs as the basis for an opinion by a mechanical engineer or other expert:
The Court must be cautious about using photos to draw factual conclusions. In this case, at best, the photos really only provide a general indication of whether the collision was at high speed or low speed, but I do not see how they might assist, for example, with discerning a difference between a ute carrying an unspecified load at 20 km/hr or 30 km/hr and the research relied upon by Dr McIntosh (referred to in detail in his report and under cross-examination) does suggest that even 10km/hr with a heavier load might change the impact felt. Presumably, different vehicles exhibit different characteristics after a collision, so that a car with apparently minimal physical damage in a photo may belie the true impact of a collision. The evidence in this case did not deal with those types of questions. This is not a criticism of the material that was before the Court. It is simply to illustrate why I am not convinced the position as to speed and force or impact can be stated with precision or as a definitive opinion that the collision here could not have, or would not have, caused the injuries complained of by the plaintiff.
The conclusions by Mr Keramidas that Ms Rahimi’s vehicle was not towed away, that she was incorrect in maintaining that there were three separate collisions, that the single collision was very minor, and that the vehicles depicted in the photographs were not the vehicles involved in the collision, are all based on his analysis of the photographs with which he was provided. It may be that there is some problem with the photographs. The panel’s view that it is more likely that Mr Keramidas’ interpretation of the photographs, especially in circumstances where there is only one photograph of the vehicle in which the claimant was a passenger, is misconceived.
In respect of the report of Mr Griffiths, the panel noted that he had not been provided with the report of Mr Johnson of 18 November 2019. As Mr Griffith quoted extensively from and adopted the findings and conclusions of Mr Keramidas, it follows that there has been no answer to the cogent and persuasive reasons advanced by Mr Johnson that Mr Keramidas has used a flawed assumption of the respective stiffness of the coefficients where the engine structure remains undamaged. Neither of the insurer’s experts have addressed Mr Johnson’s report and conclusions. Nor do the insurer’s solicitor’s submissions challenge Mr Johnson’s report, or explain why the opinions of Mr Keramidas and Mr Griffiths should be preferred to that of Mr Johnson.
48. The High Court in Fox v Percy 214 CLR 118 at 129, made it clear that a finding that claimant is a truthful witness does not entail a finding that the entirety of his case has been proven. Their Honours found that issues should be determined not by reliance on the veracity or otherwise of witnesses, “but as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.” (Emphasis added)
49. In the present case, as Mr Johnson pointed out, the vehicle in which the claimant was a passenger was uninsured, and was owned by the ex-wife of the driver, and that Mr Keramidas’ suggestion that this accident had been staged was accordingly illogical. It seems to the panel even more illogical to conclude on the basis of a series of photographs of one of the vehicles, and one photograph of the other vehicle, that an independent witness was mistaken about the number and severity of impacts involved in the collision, and also whether her vehicle was towed away.
50. The panel accepts Mr Johnston’s conclusion that the nature of the damage is consistent with the front to rear collision between the vehicles depicted in the photographs.
Conclusion
51. Accordingly, the insurer has failed to persuade the panel that the evidence upon which it relies establishes on the balance of probabilities that the forces involved in the accident were insufficient to cause the injuries which the claimant alleges he suffered in the motor vehicle accident.
52. If therefore follows from these Reasons and the Reasons included in the Report and Directions of the panel of 6 September 2022, that the Certificate of Assessor Dr Shahzad of 17 March 2022 should be confirmed.
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