Insurance Australia Limited t/as NRMA Insurance v Wenham
[2023] NSWPICMP 449
•8 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Wenham [2023] NSWPICMP 449 |
| CLAIMANT: | Phillip Wenham |
INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 8 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury on 6 November 2019 when the insured vehicle struck his vehicle head on; air bags deployed; dispute about the assessment of permanent impairment to the cervical spine and left knee; parties accepted previous assessments of the right shoulder (4%) and thoracic spine (0%); claimant re-examined by Review Panel; examination finding for the cervical spine was DRE Category 1 (0%) and finding for the left knee was 2%; assessments of right shoulder and left knee combined to give rise to whole person impairment of 6%; Held – original assessment revoked; finding made that the claimant was below the threshold for permanent impairment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · cervical spine; · right shoulder; · left knee, and · thoracic spine. |
STATEMENT OF REASONS
BACKGROUND
On 6 November 2019, the claimant, Phillip Wenham, was injured in a motor accident when he was driving in a roundabout in Roselands and he was struck head-on by a motor vehicle insured by the insurer, NRMA.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Farhan Shahzad for assessment.
On 17 November 2022, the Medical Assessor issued a certificate finding that the following injuries were caused by the accident:
· cervical spine;
· right shoulder;
· left knee, and
· thoracic spine.
The Medical Assessor certified that the injuries gave rise to a permanent impairment of 13%.
THE REVIEW APPLICATION
On 16 December 2022, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. The application was made within the time prescribed by
s 7.26(10) of the MAI Act.
The President referred the application to a review panel (the Panel) for review, being 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. [i]
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Geoffrey Stubbs, Medical Assessor Mohammed Assem and Member Maurice Castagnet.
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.[ii]
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[iii]
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[iv]
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[v]
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[vi]
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[vii] In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
MEDICAL ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused injuries to the cervical spine, the right shoulder, thoracic spine and the left knee.
As previously indicated, the Medical Assessor found that the injuries gave rise to a permanent impairment of 13%.
In making this finding, the Medical Assessor attributed a WPI of 4% to the left knee injury, 4% to the right shoulder injury, 5 % to the cervical spine injury and 0% to the thoracic spine injury.
In the review application, the insurer did not take issue with the Medical Assessor’s findings on causation and assessment of WPI for the right shoulder injury and the thoracic spine injury.
In the circumstances, on 19 May 2023, the Panel issued a direction to the parties to confirm whether they accepted the WPI assessments made by the Medical Assessor for the right shoulder injury and the thoracic spine injury and whether the only injuries to be assessed by the Panel on review were the injuries to the cervical spine and the left knee.
Both parties confirmed that they accepted the assessment of the Medical Assessor for the right shoulder injury and the thoracic spine injury, and that the only injuries to be assessed by the Panel in this review are the injuries to the cervical spine and the left knee.
According to s 7.25 of the MAI Act, an assessment of a medical dispute by way of a review of a medical assessment can be made on the basis of any agreement by the parties as to the following matters (without those matters having to be the subject of assessment)—
(a) the degree of permanent impairment of an injured person that has resulted from a particular injury, or
(b) whether a particular injury was caused by a motor accident.
Accordingly, the only matters that the Panel are concerned with in this review are the assessments of the injuries to the cervical spine and the left knee.
The Medical Assessor’s assessment of the cervical spine injury
The Medical Assessor noted that there was a pre-accident history of cervical spine symptoms. The claimant was referred for an X-ray of the cervical spine which was performed on 9 November 2004. The scan found narrowing of disc space height and spondylotic change at C5/6.
The Medical Assessor noted that the post-accident CT scan of the cervical spine performed on 5 May 2020 found no evidence of any trauma but showed multi-level spondylosis with indentation of the ventral thecal sac at C4/5 with apparent indentation of the cord.
The Medical Assessor noted that the claimant has continued to complain of ongoing symptoms in his neck since the accident.
The Medical Assessor made the following findings on the cervical spine:
(a) on examination, there was pain reported around the area. There was no guarding or rigidity noted. Flexion was half normal range. There was nearly a full range of extension. Lateral flexion was one third normal range bilaterally with pain reported over the left side of the neck. Lateral rotation was one third normal bilaterally;
(b) the claimant has underlying degenerative changes in the cervical spine and it is plausible the subject motor accident has caused a symptomatic aggravation of these changes, and
(c)
the clinical presentation is consistent with a DRE cervicothoracic category II –
5 % WPI.
The Medical Assessor’s assessment of the left knee injury
In regard to the left knee, the Medical Assessor noted the following pre-accident history:
(a) there was a long-standing history of underlying pre-existing osteoarthritis in the left knee. On 6 October 2007, the claimant was injured whilst working which resulted in ongoing left knee pain. The claimant was diagnosed with a torn medial meniscus and required a left knee arthroscopy performed in late 2007/2008;
(b) the claimant reported left patella femoral pain on 28 March 2008 to the Panania Medical Centre. On 2 May 2008, there was a significant effusion noted with pain in relation to the left knee;
(c) on 14 March 2009, the claimant reported that he suffered an injury at work when he twisted his right knee. When examined, he had considerable right knee effusion;
(d) the claimant had undergone multiple right knee surgeries, secondary to sporting injuries, and
(e) on 31 October 2014, the claimant was complaining of bilateral knee pain.
The Medical Assessor made the following findings on the left knee:
(a) on examination, flexion was 130 degrees and tension was (zero) 0 degrees. The joint was stable anteriorly, posteriorly, medially and laterally. There was tenderness over the lateral joint line. There is no evidence of swelling over the left knee. There is no patellofemoral crepitus, and
(b) the clinical presentation is mild knee impairment as per table 41, AMA 4, page 3/78 – 4% WPI.
MATERIAL BEFORE THE PANEL
The documents filed by the parties and considered by the Panel were as follows:
(a) the insurer’s internal review decision dated 18 January 2022, with attachments;
(b) the claimant’s application for medical assessment and supporting bundle of documents (marked A1- A16) that was before the Medical Assessor;
(c) the insurer’s reply submissions and supporting bundle of documents (marked R1-R26) that was before the Medical Assessor;
(d)
the Certificate of Medical Assessor Farhan Shahzad issued on
17 November 2022;
(e)
the insurer’s review application and submissions to the President dated
16 December 2022, and
(f) the claimant’s reply submissions to the President, dated 23 January 2023.
Prior to commencing its deliberations, the Panel provided the parties with an opportunity to file any further additional documents that they wished to rely upon and to make any further submissions.
The Panel did not receive any additional documents or submissions from either party.
MEDICAL EVIDENCE
The medical evidence before the Panel that relates to the matters under review, may conveniently be summarised as follows.
Pre-existing conditions
The clinical records of the claimant’s general practitioners at Panania Medical Centre (for the period from 12 June 2003 to the date of the accident) recorded the following entries:[viii]
(a) 9 November 2004 – “Subjective: Neck pain came on this morning when he put his arm up. Objective: restricted ROM, muscle spasm ++, holds neck lateral flexion to the Right and rotated slightly”;
(b) 6 October 2007 – “1/12 ago, at work, at Target at Campbelltown, carrying 100kg gas bottle on 3 wheel trolley up 80 stairs, when colleagues stopped at first level, Phillip went backwards, felt knee twist and pain; next day knee was swollen, he used voltaren gel and nurofen and went to work. Ongoing left knee pain since, gets stiff in am, avoids pushing off on that knee. sore after golf-has had to hire a cart for golf. Examination: tender inferior patella medially. ligaments stable. full rom”;
(c) 20 October 2007 – “Waddekk [sic][ix] - has torn meniscus left knee. needs arthroscopy”;
(d) 28 February 2008 – “had arthroscopy, off work and physio since then. Examination: left knee brace. needs ongoing quad strengthening”;
(e) 11 April 2008 – “still having physio – putting more load on knee. Can walk up and down stairs-needs to hold on, as still has pain-physio has been encouraging him not to crab walk. Examination: left quad muscle still smaller than right - points to top and bottom of patella as point of pain - flexion and extn full”;
(f) 2 May 2008 – “left knee still same pain, and quite significant effusion, given glucosamine by physio. Examination: left knee effusion present anterior knee pain on 60 day flexon [sic]”;
(g) 14 March 2009 – “2 past knee surgery on right knee. Examination: considerable right knee effusion”;
(h) 15 May 2009 – “injury at work has exacerbated pre-existing right knee problem”;
(i)
12 June 2009 – “saw Dr Waddell yesterday; happy with progress of right knee; quads measure 2cm greater on right than left, has finished with physio and
Dr Waddell. Examination: no right knee effusion”;
(j) 31 October 2014 – “gout; bilat knee pain; cert. Ongoing bilateral knee pain and giving way”;
(k) 17 August 2015 – “would like MRI knees alfred [sic] imaging”, and
(l) 28 March 2018 - “right knee difficulty again, locks and give way even when driving, past bilateral meniscectomies”.
Post-accident medical records
The medical record of NSW Ambulance referred to bilateral knee pain and right lateral neck pain on palpation and movement.[x]
On admission to the Canterbury Hospital on 6 November 2019, the clinical notes recorded the cervical spine being tender, with no collar in situ and pain in the knees.[xi]
Upon transfer and admission to the Royal Prince Alfred Hospital (the RPA Hospital) later that day, the clinical records referred to complaints that included a tender cervical spine, a tender thoracic spine, pain and stiffness in the knees bilaterally more in the left than the right. A neck collar was placed in the emergency department.[xii] On examination, the clinical notes recorded:
“Bilateral lower limbs intact, reduced knee rom bilaterally due to pain log roll and tender T3-5 midline, no bruising, rest of spine non tender, normal perianal sensation.” [xiii]
X-rays of both knees performed at the RPA Hospital on 6 November 2019 reported the following:
“Left knee: No fractures are identified. There is a small knee joint effusion. The knee joint alignment is preserved.
Right knee: There is a lucent line through the intercondylar ridge of the tibia, suspicious of a fracture. There is a small knee joint effusion. No lipohaemanthrosis. Further evaluation with CT is recommended to assess this finding.
There are moderate osteoarthritic changes of the right knee joint.”[xiv]
A CT of the cervical spine performed at the RPA Hospital on 6 November 2019 reported the following:
“No significant prevertebral soft tissue swelling. Normal cervical spine alignment appeared maintained, no facet joint dislocation. No acute fracture of the cervical spine is identified.”[xv]
A Certificate of Fitness issued on 18 November 2019 by general practitioner, Dr Kevin Smith of the Panania Medical Centre, recorded a diagnosis of “whiplash injury and left knee injury – degen ACL, medial meniscus tear, Baker’s cyst”. In response to the question of whether there were any pre-existing factors which may be relevant to these injuries, Dr Smith stated, “no previous complaints with L knee or neck”.[xvi]
Post-accident medical treatment
On 3 June 2020, the claimant was reviewed by neurosurgeon, Dr Brindha Shivalingam for his cervical spine injury. Dr Shivalingam noted that the CT scan of the cervical spine performed on 6 November 2019 showed some degenerative changes in the lower cervical spine with degenerative disc osteophyte complexes. She was of the opinion that given the fact that there was no neural component to the pain, the CT findings were somewhat insignificant and that the pain sounded very muscular.
On 9 June 2020, orthopaedic surgeon, Dr Brett Fritsch, performed a left knee arthroscopy with chondroplasty, partial medial meniscectomy and enhanced microfracture. Upon review of the claimant on 23 July 2020, Dr Fritsch was of the opinion that the claimant had made an excellent recovery from the surgery and from then on, it was a matter of rebuilding all the strength in the quads, gluten and core.
Medico-legal evidence
Dr Eugene Gehr, orthopaedic surgeon, was qualified by the claimant. He provided two reports, both dated 18 May 2021.
Dr Gehr reported that there were no previous problems with the cervical spine or the left knee prior to the accident. Dr Gehr stated that he was told by the claimant that the pain on his admission at RPA Hospital was to the left knee, but the hospital scanned the right knee by accident.
Dr Gehr was of the opinion that the left knee injury was caused by the accident. He noted the left knee was asymptomatic prior to the accident and on his examination in May 2021, he found a decreased range of motion in the left knee.
Dr Gehr was of the opinion that the cervical spine injury was caused by the accident. On his examination in May 2021, he found discogenic pain with guarding and dysmetria.
Dr Gehr assessed the left knee as 12% WPI ([BG1] based on the Guidelines, page 63, paragraph 6.84 and 6.85 and from AMA 4, page 78).
Dr Gehr assessed the cervical spine as 5% WPI based on DRE Cervicothoracic, Category II, AMA 4, page 110, table 73.
Dr Charles (Phil) Allen, consultant orthopaedic surgeon, was qualified by the insurer and he provided a report dated 22 December 2021.
Dr Allen assessed the cervical spine as DRE Cervicothoracic Category I based on his finding that the claimant has had an exacerbation of pre-existing spondylosis which had now ceased.
Dr Allen assessed the left knee as 0% WPI, based on his finding that the claimant had an exacerbation of pre-existing degenerative osteoarthritis in his left knee which had now ceased.
Dr Robin Mitchell, occupational physician, was qualified by the insurer and he provided a report dated 6 December 2021.
Dr Mitchell assessed the cervical spine as DRE Cervicothoracic Category I based on the report of injury with some ongoing although mild symptoms, no observed muscle guarding or spasm, no documented neurological impairment or clinical radiculopathy and no evidence of asymmetric loss of range of motion.
Dr Mitchell assessed WPI of the left knee as 0% (AMA 4, Table 48, page 41, 40) based on injury, including damage to the chondral lining of the knee joint having made a good recovery following arthroscopic microfracturing.
SUBMISSIONS
Insurer’s submissions in relation to the cervical spine injury
The insurer submitted that the Medical Assessor acknowledged that there was a pre-accident history of the cervical spine. He referred to the claimant undergoing an X-ray on
9 November 2004 and that the scan found narrowing of the disc space height and spondylotic change at C5/6.
The insurer submitted that the Medical Assessor did not however engage with clause 6.31 of the Guidelines in circumstances where there was evidence of the presence of an impairment in the cervical spine that existed before the accident.
In reliance on the reports of Dr Mitchell and Dr Allen, the insurer further submitted that the claimant had suffered an aggravation of longstanding degenerative changes of the cervical spine and any accident-related aggravation had ceased.
The insurer submitted the claimant’s symptoms would be ascribed at most, DRE cervicothoracic category I, which attracts a WPI of 0%.
Insurer’s submissions in relation to the left knee
The insurer noted that on pages 3 and 4 of his certificate, the Medical Assessor acknowledged that the claimant had a longstanding history of underlying osteoarthritis in the left knee in noting the events of October 2007, the arthroscopy in late 2007/2008, the
May 2008 effusion and the October 2014 complaint of bilateral knee pain.
The insurer submitted that the Medical Assessor did not engage with clause 6.31 of the Guidelines in circumstances where there was evidence of the presence of an impairment in the left knee that existed before the accident.
The insurer submitted that the Medical Assessor erred in his assessment of the left knee injury. On examination, the Medical Assessor recorded that flexion was 130 degrees and tension was (zero) 0 degrees. The Medical Assessor assessed the clinical presentation as mild knee impairment, according to table 41 of AMA 4. The insurer submitted that however, flexion of 130 degrees of the left knee does not fall within ‘mild’ knee impairment. Rather, it would not attract any impairment.
The insurer further submitted that the Medical Assessor failed to consider an assessment of the left knee injury by using the Diagnosis-Based Estimates of AMA 4. In that regard, the insurer noted that pursuant to Table 64 of AMA 4, a partial meniscectomy would attract WPI of 1%. Pursuant to Table 6.5 of the Guidelines, range of motion cannot be combined with Diagnosis-Based Estimates. Rather, the Guidelines provided that the method providing the highest rating should be chosen. The insurer submitted that the left knee ought to be assessed at best, as 1% WPI.
Claimant’s submissions in reply
The claimant noted that the X-ray report of the cervical spine was performed 15 years before the accident and the claimant’s symptomatic complaints of the left knee occurred over five years prior to the accident. The claimant submitted that there is no evidence in relation to the cervical spine or left knee capable of establishing the existence of any quantifiable objective symptomatic impairment as at the date of the accident.
The claimant submitted that Dr Mitchell and Dr Allen did not identify any evidence that would constitute objectively demonstrable evidence of pre-existing symptomatic impairments in the cervical spine or the left knee. On that basis, no deduction for pre-existing impairment as at the date of the medical assessment are applicable. This accords with the findings of the Medical Assessor.
The claimant submitted that neither Dr Mitchell nor Dr Allen undertook an assessment of the claimant’s then current impairments of either the cervical spine or the left knee and to identify any quantifiable pre-existing impairments.
RE-EXAMINATION
The claimant was examined by Medical Assessor Assem in his rooms on 21 June 2023. The claimant attended the examination unaccompanied. Medical Assessor Stubbs participated in the examination process remotely through the medium of FaceTime, by engaging in the interview with the claimant and observing the physical examination.
Their examination report now follows.
The claimant confirmed that the history obtained by Medical Assessor Shahzad was correct. He said that he continues to work as a full-time Facilities Manager for the Chris O’Brien Lifehouse (a cancer hospital in Camperdown).
The claimant reported that due to the discomfort in his neck and shoulder region, he finds it necessary to adjust certain overhead tasks. This includes ascending an additional step on the ladder to avoid overstraining through cervical extension or excessive overhead exertion. To manage the physical workload, he delegates the more strenuous tasks to his team members. He reported previous injuries to his right knee but not the left.
History of the motor accident
On 6 November 2019, the claimant was involved in a motor accident while navigating a roundabout in Roselands. He was driving a Mitsubishi Triton and prepared to take a left turn, when his vehicle was struck head-on by a Holden Captiva, travelling at an estimated speed of 80-85 kmph. The driver of the Captiva reportedly had fallen asleep at the wheel.
The claimant was wearing a seatbelt restraint. The airbags were deployed. He believes he lost consciousness and later found himself in the back seat of his vehicle. He managed to open the car door and crawl out of the wreckage by himself. He was discovered by paramedics at the scene, sitting by the roadside.
He was transported by ambulance to the Canterbury Hospital. The claimant was wearing a seatbelt at the time of the collision, and he was able to walk from the ambulance into the emergency department of the hospital.
The severity of the accident led to his vehicle being written off. The NSW Police Force and ambulance personnel were present at the scene.
According to the medical record of NSW Ambulance, he had right lateral neck pain on palpation and movement. There was also pain involving his right shoulder and both knees.
The claimant said that he was admitted to the Canterbury Hospital and later transferred to the RPA Hospital. He described his injuries as a dislocated right shoulder, a collapsed right lung, a severe whiplash injury to his neck and ligamentous injuries to his left knee. He stated that he was discharged four days later.
According to the clinical records of the RPA Hospital, there was mild dependent atelectasis of his right lung. Imaging of his brain, neck, thoracic spine, knees and chest was normal. He was admitted overnight for monitoring before he was discharged on 7 November 2019.[xvii]
An MRI scan of his left knee on 15 November 2019 showed degenerative changes to his ACL and meniscus. He received physiotherapy treatment and was given cortisone injections into his right shoulder. On 9 June 2020, Dr Brett Fritsch performed a left knee arthroscopy with chondroplasty, partial medial meniscectomy and enhanced microfracture.
Current symptoms
The claimant complains of intermittent neck discomfort and stiffness. There is sometimes a crunching sensation with cervical rotation. He has difficulty maintaining static postures for long periods. At the present time, he rates the discomfort as 4/10 on the pain scale. The pain radiates to the interscapular area. There was no radiation to his upper extremities. There was no associated paraesthesia or weakness.
The claimant states that his left knee symptoms have improved after arthroscopic surgery. There is sometimes an audible click when pivoting or negotiating steps. He indicated that the pain was at the inferior pole of the patella and sometimes posteriorly. He is no longer taking analgesia.
Physical examination
The claimant stands 180cm tall and weighs 92kg. He moves about freely and co-operated with all the aspects of clinical examination.
Cervical spine: the claimant shows one half normal range of motion which varies little on repeated examination. Extension decline from the facial plane being 30° to the vertical on the initial examination to about 15° on repeated examination. There were marginal restrictions of rotation and side bending to the right on the formal examination but when repeated the restrictions were marginal on the left side. There is local tenderness to firm palpation over the centre line of the cervical spine spreading into the proximal trapezius and down to mid-scapular level in the thoracic spine. There was no guarding or spasm. Traction tests were negative. Upper limb motor function was 5/5 in all groups right equals left. The reflexes are brisk and symmetrical. Minor tingling was complained of in the fingers but not the thumb of both hands and limited to the fingers only that did not correspond with a specific dermatomal pattern. Sensory testing was normal as was small muscle function. Girth of the upper limbs was right equals left in the arms and about half a centimetre greater on the right forearm compared to the left consistent with right hand dominance. Mild inconsistency in the clinical examination is consistent with cervical spondylosis. There are no clinical findings that would indicate anything more than a soft tissue injury which would give rise to a DRE Cervicothoracic Category I impairment.
In the upper limbs: a 10° difference in flexion and abduction was noted between the right and left shoulders. The rest of the shoulder movements were normal for age on both sides. Scapular rotation occurs early and is well controlled. The restricted right shoulder movement is consistent with direct aggravation of pre-existing acromioclavicular arthritis from the seatbelt anchorage. This is thought to be caused by the motor vehicle accident and was agreed to give rise to 4% WPI.
Elbows wrists and fingers also show full normal movement with good grip strength. As noted above the neurological examination is normal.
Lumbar thoracic spine: this is not part of the injury complex but on a brief screening examination is normal for age.
Lower limb examination: Hips show normal flexion extension and rotation.
Both knees flexed just beyond 130°. The right knee in which there is a history of prior sports injury and surgery has a 10° fixed flexion contracture consistent with pre-existing osteoarthritis. The left knee extends normally. The mid patella circumference of the knees is 39 cm on the right and 39.5 cm on the left. There is no effusion. There is normal physiological valgus, and the knees have slight anteroposterior glide right equals left. Circumference at thighs is 44 cm right equals left at 10 cm above the proximal pole of the patella and the calves are 39 cm at maximum girth. Reflexes are brisk and symmetrical in the clinical strength is grade 5/5 all motor groups. Both knees show loud crepitus and retro patella tenderness more so on the left than the right. The retro patella crepitus on the right is an expected finding on the known history of prior osteoarthritis. There was a previous history of bilateral knee pain but no objective evidence of a pre-existing symptomatic impairment involving his left knee. It is therefore reasonable to accept that this is the consequence of the left knee striking the dash and would qualify under the footnote on table 62 of AMA4 which reads: “in a patient with a history of direct trauma, a complaint of patellofemoral pain and crepitation on physical examination but without joint space narrowing on radiology gives a 2% whole person impairment”.
Causation
According to the available evidence, the injuries to the claimant’s cervical spine and left knee are causally related to the motor accident. His neck and left knee complaints were documented in the clinical records of NSW Ambulance, the Canterbury Hospital and the RPA Hospital. Although there is documentary evidence of pre-existing neck and bilateral knee complaints, there was no objective evidence of a pre-existing symptomatic impairment.
Whole person impairment
Cervical spine
The claimant has a restriction in cervical movements without any muscle guarding, spasm or spinal dysmetria. There were non-specific sensory symptoms reported not corresponding to spinal nerve root distribution. His condition is consistent with a DRE Cervicothoracic Category I or 0% WPI (AMA4, 3/104).
Left knee
The claimant was involved in a head-on collision and probably sustained a direct injury to his left knee. He continues to have patellofemoral pain and crepitations after a direct injury giving 2% WPI (AMA 4, Table 62, Page 3-83).
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel adopts the examination findings of Medical Assessor Assem and Medical Assessor Stubbs in relation to the injuries to the cervical spine and the left knee.
The Panel adds the following brief reasons.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel accepts that there were pre-existing conditions in the cervical spine and the left knee prior to the accident. Clause 6.31 of the Guidelines requires a deduction of an impairment in the same region that existed before the motor accident if there is objective evidence of a pre-existing symptomatic permanent impairment in that region at the time of the accident. However, the Panel is not satisfied that there is objective evidence of symptomatic permanent impairment to either the cervical spine or the left knee at the time of the motor accident.
Adding the WPI assessment of the Panel for the cervical spine and left knee to the agreed WPI assessment for the thoracic spine and right shoulder, the Panel makes a finding of a total WPI of 6%. It follows that the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is not greater than 10%.
CONCLUSION
The certificate of the Medical Assessor is revoked. The new certificate of the Panel is attached to these reasons.
[i] Section 7.26(5) of the MAI Act.
[ii] Section 41(2) of the PIC Act.
[iii] Rule 128 of the PIC Rules.
[iv] Section 7.26(6) of the MAI Act.
[v] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
[vi] Clause 6.2 of the Guidelines.
[vii] See s 3B (2) of the CL Act.
[viii] Insurer’s bundle- R10 – page 227 and following.
[ix] This is most likely to be a reference to “Waddell”.
[x] Insurer’s bundle- R3 – pages 10-16.
[xi] Insurer’s bundle- R7 – pages 37-41.
[xii] Claimant’s application for medical assessment bundle -A1- unpaginated.
[xiii] Claimant’s application for medical assessment bundle -A1- unpaginated.
[xiv] Claimant’s application for medical assessment bundle -A1- unpaginated.
[xv] Claimant’s application for medical assessment bundle -A1- unpaginated.
[xvi] Claimant’s application for medical assessment bundle -A1- unpaginated.
[xvii] Insurer’s bundle- R11– page 351.
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