Insurance Australia Limited t/as NRMA Insurance v Younan
[2023] NSWPICMP 601
•20 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Younan [2023] NSWPICMP 601 |
| CLAIMANT: | Samantha Younan |
| INSURER: | NRMA Insurance Ltd |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 20 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 12 April 2017 when she was stopped in the vehicle she was driving in a line of stationary traffic and another vehicle collided with the rear of her vehicle pushing it into the vehicle in front of hers; dispute as to whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%; Medical Assessor (MA) found that the injuries to the claimant’s cervical spine, right and left shoulders and lower back were caused by the accident and assessed the combined whole person impairment (WPI) for these injuries at 11% - 5% for the cervical spine, 2% for the right shoulder, 4% for the left shoulder and 0% for the lumbar spine; MA found that the injuries to the right hip and left hip were not caused by the accident; insurer sought review; Held – Panel found that the accident caused a soft tissue injury to the cervical spine assessed as Diagnosis Related Estimate (DRE) Category 1 resulting in 0% WPI; the accident did not cause a primary injury to the left or right shoulders and there is no pathology in the cervical spine which is causative of any referred pain to the shoulders resulting in any impairment to the shoulders and therefore there is no impairment to the right or left shoulders as a result of the injury to the cervical spine caused by the accident (Nguyen v Motor Accidents Authority of New South Wales & Anor); Panel accepted that the accident caused a soft tissue injury to the lumbar spine which it assessed as DRE Category 1 resulting in 0% WPI and found that the development of bilateral trochanteric bursitis in the hips was not caused by the accident and there is no assessable impairment to the left and right hips; certificate of MA revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Permanent Impairment 1. The Review Panel revokes the certificate of Medical Assessor Chase dated 7 April 2021. 2. The Review Panel certifies that the degree of permanent impairment of the claimant as a result of the injuries caused by the motor accident on 12 April 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Samantha Younan, suffered injuries in a motor vehicle accident on 12 April 2017. At the time of the accident the claimant had been driving her vehicle westbound on the M5 Motorway in Sydney. She had stopped her vehicle in a line of stationary traffic when another motor vehicle driven by the insured collided with the rear of her vehicle, pushing it into the vehicle in front of hers (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
NRMA Insurance Limited (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment 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] See ss 57 and 58 of the MAC Act.
The claimant alleges that she suffered impairment to the following body parts caused by the accident:
(a) right shoulder;
(b) left shoulder;
(c) cervical spine;
(d) lumbar spine;
(e) right hip, and
(f) left hip.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s. 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Robin Chase and is dated 7 April 2021. Medical Assessor Chase determined that the following injuries were caused by the accident:
(a) cervical spine;
(b) lumbar spine;
(c) right hip;
(d) left hip;
(e) left shoulder, and
(f) right shoulder.
Medical Assessor Chase assessed that the combined whole person impairment arising from the above injuries at 11%.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the insurer on 4 November 2021.
On 7 March 2022, the President’s delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s. 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
THE ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Chase for assessment:
(a) right shoulder: referred injury from the neck (Nguyen[7]);
(b) left shoulder: referred injury from the neck (Nguyen);
(c) cervical spine: soft tissue injury, musculoligamentous strain with possible precipitation of degenerative changes, facet joint trauma, musculoskeletal injury;
(d) lumbar spine: soft tissue injury, musculoligamentous strain, musculoligamentous injury;
(e) right hip: trochanteric bursitis, and
(f) left hip: trochanteric bursitis.
[7] Nguyen v Motor Accidents Authority of New South Wales and Anor (2011) 58 MVR 296.
Medical Assessor Chase obtained a history from the claimant of a previous motor accident in 2013 where she was a passenger in a car which was merging when another vehicle hit the passenger side of the car she was in. She had neck and low back pain and she was off work for about one week and she received physiotherapy and said that within less than six months her symptoms had settled completely. Medical Assessor Chase also obtained a history of a further motor accident in 2014 when the claimant was the driver of a car which was stationary when another vehicle collided with the rear of her vehicle. The claimant said she had neck pain and low back pain but she did not have any pain in her hips and that she had a “little bit” of shoulder pain. She said that she received physiotherapy and that after approximately six months her symptoms resolved completely. The claimant also told Medical Assessor Chase that she suffered from anxiety ever since the subject accident in April 2017.
Medical Assessor Chase records that the claimant is single and has no children. She had been employed since July 2018 by QBE as an executive assistant for the group treasurer working 37.25 hours per week. While she plays no sport, she used to go to the gym four to five times a week doing cardio/light weights and resistance work and has tried to resume going to the gym [since the accident] where she attends three times a week, but sometimes more, and exercises with a skipping rope, light dumbbells and resistance bands at home. At the time of the assessment, she was living with her parents in a two-storey duplex and said that she needs help to do her washing and that she and her mother share the shopping and she sometimes does the cooking. She drives her automatic car but is anxious to avoid driving whilst prior to the accident she usually drove to work. She does not cope with standing on the train but as of February 2021 she was working from home, she has low back pain when she drives for more than 20 minutes, she runs a home-business, in addition to working at QBE, hiring out dresses which has been getting busier ever since COVID restrictions were lifted, and she is working up to 30 hours per week with the assistance of her mother and tends to recruit another assistant. She employed a drycleaner and alteration person but says she struggles with the fitting part of the business.
Medical Assessor Chase records the following history of the subject accident. On 12 April 2017, the claimant was driving home from work on the M5 West in a Mercedes sedan. She was wearing her seatbelt. Her car was stationary when a Jeep struck the rear of her vehicle pushing her into the car in front. The airbags did not employ but she did not suffer any loss of consciousness. She exchanged details with the other driver and the police and ambulance did not attend. Because her car was drivable, she drove home but said it was repaired at the cost of $10,000 to $12,000 but she later sold it. She said she was in shock and crying after the accident. She had pain in her neck and back. She took paracetamol and went to bed and woke the next day with pain in her neck, back and shoulders. She saw Dr Patamera and was sent for physiotherapy and imaging. She had about two days off work and then continued working from home. She had physiotherapy over three to six months but then the funding ceased and she stopped it.
She saw Dr Abraszko and was sent for more imaging and he advised against surgery. She was advised to have more physiotherapy but this was refused. She then saw Dr Giblin who told her he could not help her and she has not had any treatment for a long time.
In terms of her present symptoms, she reported to Medical Assessor Chase that she has constant pain in her neck which is worse when sitting for too long or standing too long and driving. She gets relief from this by lying down. She has constant shoulder pain, sometimes worse on the right, sometimes on the left, and the shoulder pain is worse when sitting or driving.
She said that she sometimes has pain in the thoracic spine and her headaches come and go and they are worse when her neck is in pain. She reported constant low back pain which waxes and wanes and she gets relief from this with paracetamol and sleeping. She also gets pins and needles in her hands and legs, and if she sits for too long or crosses her legs for too long she will get numbness. The numbness with pins and needles in the hands and feet are present permanently.
The claimant told Medical Assessor Chase that her hip pain started in 2020 for which she has had no treatment, and her hips are getting worse, especially when she is exercising at the gym, and she attributes the hip pain to her back. The hip pains come and go, the left being worse than the right, and she is not sure what makes the pain worse except going to the gym.
Having clinically examined the claimant, Medical Assessor Chase concluded that she did not appear to be exaggerating or embellishing her symptoms in any way and that there is a broad consensus between the history that she gave him and the physical examination compared to the supplied documentation.
Medical Assessor Chase found that the claimant had a full range of motion in the cervical spine but “a slight degree of dysmetria”. He assessed the claimant as diagnostic-related estimate (DRE) category II resulting in a 5% whole person impairment of the cervical spine.
In both shoulders, Medical Assessor Chase reported restricted range of motion but no other abnormal features and found “no evidence of specific injury to the right and left) shoulder that can be attributed to the motor vehicle accident other than some limitations of movement due to the neck pain”. He nevertheless assessed the claimant on a range of motion and concluded that there was a total of 2% whole person impairment of the right shoulder and 4% whole person impairment of the left shoulder.
Medical Assessor Chase found a full range of motion in the lumbar spine in the presence of symptoms and assessed the claimant as having DRE category 1. He was unable to state that the claimant suffers from any injuries in the hip or pelvis secondary to the motor vehicle accident on 12 April 2017, but did include a table of hip movements and recorded that there is some tenderness over the trochanteric bursa bilaterally but no crepitus.
Medical Assessor Chase noted that there is significant documentation, particularly reports following the motor vehicle accidents in 2013 and 2014. Of particular note, Dr Harbison reports that she had a bilateral shoulder injury following the second motor vehicle accident as well as pain in her neck and low back.
Medical Assessor Chase also notes that there is substantial imaging, particularly the MRI scans of the cervical and lumbar spines, and that all of these consistently reveal no abnormalities in the neck and low back. There is no evidence of any imaging pertaining to the shoulders. He also notes that there is significant consistency in the documentation that following the motor vehicle accidents in 2013 and 2014 the claimant was reporting neck and low back pain.
Medical Assessor Chase diagnosed the following injuries:
(a) soft tissue injury to the cervical spine, whiplash associated disorder grade 2 with no evidence of radicular pain or radiculopathy in the upper limbs;
(b) there is no evidence of specific injury to the right shoulder that can be attributed to the motor vehicle accident other than some limitations of movement due to the neck pain;
(c) there is no evidence of specific injury to the left shoulder that can be attributed to the motor vehicle accident other than some limitations of movement due to the neck pain;
(d) soft tissue injury to the lumbar spine – symptoms only, and
(e) whilst clinically the claimant has symptoms in her hips that are consistent with a bilateral trochanteric bursitis, he is unable to state that the claimant suffers from any injuries in the hip or pelvis secondary to the motor vehicle accident on 12 April 2017.
In the opinion of Medical Assessor Chase, it is consistent that the claimant could have suffered the neck injury as a result of the motor vehicle accident on 12 April 2017, and this represents an aggravation or a reactivation of the neck injuries that she sustained in the motor vehicle accidents in 2013 and 2014. She has pain in her shoulders secondary to her neck pain and it is clearly documented that she had bilateral shoulder pain prior to the motor vehicle accident (refer Dr Harbison’s reports) and this likely represents aggravation of the previous shoulder condition secondary to the previous neck injury.
In the opinion of Medical Assessor Chase, it is also plausible that the claimant has some non-specific low back pain secondary to the motor vehicle accident on 12 April 2017, again representing aggravation of the back pain secondary to the motor vehicle accidents in 2013 and 2014.
Medical Assessor Chase found that the following injuries were caused by the motor accident:
(a) cervical spine;
(b) right shoulder;
(c) left shoulder, and
(d) low back.
Medical Assessor Chase found that the following injuries were not caused by the motor accident:
(a) right hip; and
(b) left hip.
Medical Assessor Chase determined that the combined whole person impairment arising from these injuries caused by the motor accident is 11% as follows:
(a) cervical spine – 5%;
(b) right shoulder – 2%;
(c) left shoulder – 4%, and
(d) lumbar spine – 0%.
STATUTORY PROVISIONS AND GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and this includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 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.
2.6 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 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Sections 5D and 5E of the CL Act apply to the MAC Act.[8] In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“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), ss 5D 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.”
[8] See s 3B(2) of the CL Act.
[9] [2021] NSWSC 13 at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the insurer uploaded to the portal at AD6 an index and bundle of documents paginated from pages 1 to 104. The insurer subsequently uploaded to the portal an amended bundle of documents at AD9, the only difference being that the index more specifically identified the page number for each document relied upon. The insurer’s bundle at AD9 is referred to in these reasons as “IB”. The claimant uploaded to the portal at AD7 an index and at AD8 a bundle of documents paginated from pages 1 to 465 which is referred to in these reasons as “CB”.
Claimant’s application to admit late documents
On 4 October 2023, the claimant lodged an Application to Admit Late Documents being two reports of Dr John Davis dated 12 September 2023. By email dated 6 October 2023 the insurer advised that it has no objection to these two reports being provided to the Panel.
CB includes two medico-legal reports by Dr Davis dated 14 October 2019 and 1 March 2022.Thew two further reports are consequent upon a re-examination of the claimant on 12 September 2023.
In the circumstances, and in the interests of justice, the Panel grants the claimant leave to rely upon the two reports of Dr Davis dated 12 September 2023 in this review and they are identified as AD10.
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 40 to 44 above in making its findings and determinations.
Medical Assessors Stubbs and Dixon re-examined the claimant on 28 April 2023
SUBMISSIONS
Insurer’s submissions dated 4 November 2021[10]
[10] IB p 72.
These submissions were relied upon by the insurer on the application for review of the certificate of Medical Assessor Chase.
The insurer submits that there is reasonable cause to suspect that the certificate of Medical Assessor Chase is incorrect in a material respect and that the certificate ought to be referred to a Review Panel on three grounds:
(a) procedural delay in the issuing of the certificate of Medical Assessor Chase;
(b) failure to provide any reasoning regarding apportionment of impairment, and
(c) failure to provide adequate reasoning regarding causation of the claimant’s shoulder injuries.
With regards to the first ground, the insurer submits that the claimant was examined by Medical Assessor Chase on 4 February 2021 and the certificate was not provided to the parties until eight months later on 27 October 2021 and the finalisation of issuance of the certificate is clearly contrary to the Medical Assessment Guidelines, and further that the finalised certificate was not provided to the parties by the Commission within five days of receipt in contravention of the Medical Assessment Guidelines.
The insurer submits that the delay between the date of assessment, the date of the certificate and the date of finalisation raises genuine concerns regarding the reliability, accuracy and validity of the conclusions of Medical Assessor Chase.
With regards to the second ground, the insurer notes that Medical Assessor Chase provided a brief summary of the documentary evidence and clearly identifies the claimant was involved in two previous motor accidents on 25 May 2013 and 12 June 2014 and that during the examination the claimant confirmed her involvement in those accidents and she conceded she suffered injuries to her neck, low back and both shoulders as a result of them.
The insurer notes Medical Assessor Chase’s diagnosis that as a result of the subject accident, the claimant suffered a soft tissue injury to the cervical and lumbar spine and that he accepted that there was no evidence of specific injury to the right/left shoulder that can be attributed to the subject accident other than some limitations in movement due to neck pain.
The insurer further notes that Medical Assessor Chase determined that:
(a) it is consistent that the claimant could have sustained the neck injury as a result of the motor vehicle accident on 12 April 2017 and that this represented an aggravation of or a reactivation of the neck injury she sustained in the motor vehicle accidents in 2013 and 2014;
(b) with regard to the shoulders, the claimant has pain in the shoulders secondary to her neck pain, Dr Harbison’s report’s document that she had bilateral pains prior to the subject motor vehicle accident and that this likely represents aggravation of the previous shoulder condition secondary to the previous neck injury, and
(c) it is plausible that the claimant has some nonspecific low back pain secondary to the motor vehicle accident on 12 April 2017 again representing aggravation of the back pain secondary to the motor vehicle accidents in 2013 and 2014.
The insurer submits that despite identifying that each of the claimant’s injuries arising from the subject accident were aggravations of injuries sustained in the previous motor vehicle accidents, Medical Assessor Chase made no apportionment for pre-existing impairment in the assessment of whole person impairment and failed to provide any reasoning that grappled with the issue of apportionment, aggravation and exacerbation of the pre-existing injuries in the context of whole person impairment.
The insurer refers to clause 1.31 of the Guidelines which states:
“…if there is objective evidence of a pre-existing symptomatic permanent impairment of the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value…”
The insurer submits that Medical Assessor Chase did not make any apportionments for the pre-existing impairment in his assessment and it is clear that he provided no reasons why an apportionment was not made, despite his own conclusion that the claimant sustained an aggravation injury, and that his assessment of whole person impairment is inconsistent with his own determination on causation. It submits that Medical Assessor Chase failed, at the very least, to provide consideration of whether there ought to be an apportionment of impairment of the pre-existing injury.
Th insurer submits that if appropriate apportions of pre-existing impairment were applied to the assessment of whole person impairment by Medical Assessor Chase, there is a reasonable cause to suspect that there would be a reduction in the respective impairment assessments of the cervical spine or both shoulders, and that the combined whole person impairment at 11% as assessed by Medical Assessor Chase would likely result in an assessment of not greater than 10% whole person impairment.
With regards to the third ground, the insurer submits that Medical Assessor Chase failed to provide adequate reasons and justification for his conclusion that the claimant’s bilateral shoulder injuries were caused by the subject accident.
The insurer submits that the diagnosis of Medical Assessor Chase in respect of both shoulders is imprecise insofar that he concedes that there is “no evidence of specific injury to the right/left shoulder that can be attributed to the motor vehicle accident” and comments that some limitations were secondary to “neck pain”. It submits that the Medical Assessor provided no path of reasoning and has had given little regard to clause 1.7 of the Guidelines because it is not clear from the certificate as to how the accident was a contributing cause which is more than negligible to the claimant’s alleged shoulder injury.
Further, the insurer submits that Medical Assessor Chase made the following errors in respect of the shoulder diagnosis:
(a) he did not identify any pathological cause of the claimant’s shoulder injury;
(b) he has not provided any reasons as to why the shoulder restrictions were secondary to neck pain;
(c) he made no reference to the contemporaneous medical records which make no reference to shoulder complaints, and
(d) he has provided no reason for his alternative conclusion.
The insurer notes the following from the medical evidence available to Medical Assessor Chase:
(a) the claimant’s general practitioner, Dr Romeo, when he examined the claimant on 13 April 2017, the day after the accident, records no complaints of shoulder pain or restriction and further there is no specific complaint of shoulder pain in the 23 months following the accident;
(b) Dr Brian Stephenson, orthopaedic surgeon qualified by the insurer, in his report dated 18 October 2018, reported full range of motion in both shoulders and that there were no complaints of shoulder pain and accordingly there was no injury diagnosed;
(c) Dr Vijay Maniam, orthopaedic surgeon qualified by the claimant, made no diagnosis of a shoulder injury in his report dated 20 August 2019, and
(d) Dr John Davis, occupational physician qualified by the claimant, observed full range of motion in both shoulders in his report dated 14 October 2019 and did not diagnose any injury in respect of either shoulder.
The insurer notes that Medical Assessor Chase specifically referred to the report of Dr Harbison dated 4 August 2015, in which he records that the claimant had a bilateral shoulder impingement following the second motor vehicle accident as well as pain in her neck and low back.
The insurer submits that in the determination of causation, Medical Assessor Chase failed to give consideration or any adequate consideration to the medical evidence before him, including treating medical records and medico-legal reports which highlighted the following:
(a) the presence of pre-existing injuries;
(b) the lack of contemporaneous shoulder complaints following the subject accident, and
(c) the absence of qualified diagnosis in relation to both shoulders from the subject accident.
The insurer submits that the Medical Assessor has provided no reasons why the abovementioned factors were not relevant to the assessment of whole person impairment and that the correction of these errors would materially alter the outcome of the combined assessment of the claimant’s whole person impairment.
Claimant’s submissions in response to the application for review dated 16 December 2021[11]
[11] CB p 1.
The claimant relied upon these submissions in response to the insurer’s application for review of the certificate of Medical Assessor Chase.
The claimant submits that the insurer has no evidence to support a requirement for apportionment and that none of the medical opinion in the case apportions between allegedly pre-existing permanent impairment and impairment due to the subject accident.
The claimant further submits that similarly there is no evidence of permanent impairment predating the subject accident.
The claimant submits that the elements necessary to raise the controversy on which the insurer now seeks to rely have not been identified by medical opinion.
The claimant disputes the insurer’s submissions in relation to the delay in the provision of Medical Assessor Chase’s certificate and submits that the delay in sending the certificate can have no rational impact on it for reliability, accuracy or validity, and that no such impact has been identified by the insurer, and submits that the insurer has not even hinted at the mechanism by which reliability, accuracy and validity might be impacted by delay in forwarding the certificate as opposed to delay in formulating it.
It submits that the fact that Medical Assessor Chase’s certificate substantially mirrors the opinion of Dr Stephenson is a powerful indicator that there is no contribution made by the delay to any shortcoming in the certificate. The claimant further submits that Medical Assessor Chase’s certificate reflects Dr Stephenson’s approach and his opinion precludes identification of a reason to suspect error. Medical Assessor Chase came to the same view as Dr Stephenson on substantially, if not entirely, the same grounds, and, it is submitted that the reason for suspecting error cannot be mere speculation – there must be some substantive content to it or it is not “reasoned”.
Additionally the claimant submits that the insurer’s own medical case is reflected, if not repeated, in the certificate of Medical Assessor Chase and that there is no basis for suspecting materiality, and further that the correlation between the insurer’s medical case and Medical Assessor Chase’s certificate is indicative of there being no prospect of a material error having been made.
With regards to the issue of apportionment, the claimant submits that the insurer’s complaint that Medical Assessor Chase failed to provide any reasoning regarding apportionment of impairment is erroneous because there is no evidence from any source raising the issue of a need for apportionment.
The claimant submits that Dr Stephenson, whose reports the insurer relies upon, says nothing about any of the integers (permanency and impairment) relevant to apportionment and does not suggest that the claimant had a permanent impairment pre-existing the subject accident or that the claimant had ongoing symptoms.
The claimant submits that the Guidelines make it clear that the first step in triggering a requirement for apportionment is to identify a pre-existing permanent impairment and this is not identified in this case.
The claimant submits that the need for apportionment cannot be contended to be a serious issue in this case where the material submitted for the consideration of the Assessor did not raise it and no medical practitioner has said that there was pre-existing permanent impairment, and that accordingly the assertion by the insurer as to the need for apportionment cannot give rise to a reasonable cause to suspect error.
The claimant further submits that because no doctor has said what the apportionment should be, it is not possible to be satisfied that the exercise of consideration of apportionment, if otherwise called for, would lead to a material difference in the outcome.
RE-EXAMINATION
The claimant was re-examined by Medical Assessors Stubbs and Dixon at the Commission’s rooms on 28 April 2023. The re-examination report is as follows:
“Generally
Ms Younan attended unaccompanied. She is a 29 year old single woman. She recently broke up from a long term relationship. She lives in a duplex townhouse complex owned by her parents. The two units have a common separating wall but no interior connections. She is presently unemployed. She resigned from her position with an insurance company as a personal assistant for what she described as harassment in November 2021. Her supervisor wished her to cease working from home and return to attending the office on a regular basis. She explained that the two previous supervisors had been more tolerant of her working at home, a practice which commenced in 2020 with the COVID lockdowns. The present supervisor wished her to return to the working practices that applied before the COVID lockdowns.Background
Ms Younan said that she had been involved in prior motor vehicle accidents in May 2013 and June 2014. Both were low velocity accidents. She continued working after the accidents. The third-party claim in relation to these accidents has settled. Her symptoms resolved and she resumed normal activities. No record is made of low back complaints in the general practitioner notes after December 2015 and before the subject accident on 12 April 2017.
At the time of the 2017 motor vehicle accident, Ms Younan had resumed regular gym activities and she did a mixture of lightweight circuit training. She paid for these by regular deductions on her credit card. She thought herself fit and well and was in the process of establishing an online dress hire business. She continued to work after the accident but struggled with ongoing neck and low back pain. She ceased going to the gymnasium and after some delay cancelled her subscription. Recently she has returned to the gym and renewed her subscription. She was advised to maintain a high level of physical activity by the treating physiotherapist. This includes home stretching and strengthening exercises. Ms Younan was asked about including aqua aerobics amongst her exercises but reports that she knows of no heated pools within reasonable driving distance of her home.
The motor vehicle accident on 12 April 2017 was a low-speed rear end impact. Ms Younan was driving a small 2006 Mercedes sports coupe fitted with what she describes as sports seats. The Panel established that these were tombstone style seats in which the headrest is part of the seat squab. A reactive adjustable head restraint was not fitted. She drove the vehicle home after exchanging details with the other driver. She saw her regular general practitioner, Dr Romeo, the following day, having developed increasing pain and stiffness in the neck and back overnight. The vehicle was repaired but she felt uncomfortable driving it and has since replaced it with a Mazda 3. She undertook a course of physical therapy including remedial exercise without benefit.
Her present symptomatology remains the same as it was following the accident.·Neck pain spreading into the right and left suprascapular region with periodic pins and needles in both arms and hands. There are also frequent and persisting occipital headaches.
·There is low back pain beginning in the small of the back and spreading around to the anterior superior Iliac spine on both sides equally (note she describes this as hip pain). The pain spreads into the buttocks and into the posterior thighs. There are also episodic pins and needles in both legs.
·Neither pain is worsened by coughing and sneezing other than transient increase in local pain in the neck or the back.
·The pain is relieved by changing posture. Constant sitting or constant standing increased pain but the relief which occurs when changing from one posture to the other is short lived.
·She is able to carry out all her self-care independently.
·She describes hypervigilance and anxiety as a passenger in a car. She has been told she has post-traumatic syndrome but has not seen a clinical psychologist.
·She has had a review by Dr Abraszko, the neurosurgeon she saw after the first two motor vehicle accidents. Dr Abraszko advised further conservative treatment and a bone scan performed was normal.
·She has not seen Dr Jonathan Herald an orthopaedic surgeon who saw her for her shoulder problems following the first accident.
·Ms Younan was asked about the shoulder joint pain. . She said that pain has been consistent since the motor vehicle accident and does not know why prior medical reports do not mention it.
Radiological investigations
The Panel reviewed the reports of the MRI of the lumbar spine dated 7 September 2018 and cervical spine dated 9 July 2018 both conducted by Superscan. Disc height and nuclear signal is well preserved, the spinal canal is spacious, the nerve root exit framers are unobstructed and the nerves in the spinal cord are well visualised. The MRI of the lumbar spine shows that broad based low height disc bulges are found and L4/5 and L5/S1, but this is a normal finding. So too is the cervical lordosis. The radiologist reported a slight loss of lordosis, which in the opinion of the Panel is within normal range. The regional bone scan ordered by Dr Abraszko was not available for review.
Clinical examination
Ms Younan is a well presented young lady of 162 cm height and 55 kg weight. She moves freely. She has a good balanced standing and sitting posture. She seemed quite comfortable sitting and was noted to move her neck freely when answering questions. She can tip toe and heel toe walk without difficulty. She can sustain a single leg stance on either side with excellent balance. Trendelenburg sign is negative. Ms Younan declined to hop as she thought this would exacerbate her back pain.
Ms Younan was wearing a loose poncho type top over a bodysuit. The bodysuit is a single piece form hugging elastic garment that runs from her neck to her ankles with short sleeves to mid upper arm. She wears this as she believes it supports her low back. Ms Younan reported that she would be uncomfortable if she had to remove the garment. The examiners understood this to imply psychological uncomfortability. A female chaperone was suggested but declined. Ms Younan was therefore examined in a formfitting garment that partly covered her arms and fully covered the legs under a standard examination gown. She asked for the examination table be lowered so she could sit on it but was otherwise able to get on and off the table without assistance.
Cervical spine
She has a normal posture with appropriate cervical lordosis. The head is well-balanced on the spine. Active range of movement was flexion 1/3, extension ¼, side bending 1/3 and rotation 1/3 right equals left, all without discomfort. A better range of movement was seen in informal examination. This was pointed out to Ms Younan who replied that formal physical examination was causing pain. There was diffuse tenderness over the whole of the bony prominence of all of the cervical spine spreading equally to the points of both shoulders, that is tenderness in a symmetrical trapezial distribution. Pain was reported in the lateral upper arms but not tenderness. There was voluntary restriction of movement but no involuntary spasm or guarding. Reflexes in the upper limbs are right equals left for biceps, triceps, and supinator. Girth in the upper limbs was 20 cm in the arms and 19 cm in the forearms on both sides. Left hand dominance was not reflected in girth changes. All motor groups tested 5/5 with the elbows at the side. Pain and tingling was complained of intermittently on neck movements in the arms but did not follow a dermatomal distribution. Pinwheel sensory mapping was normal. Tensions signs were tested. Side bending left with right shoulder depression evoked complaint of pain in the whole of the right arm. When the same nerve root tension sign was performed as a brachial stretch test, arm at 90° of abduction, wrist in neutral with side bending left, there was no increase in arm pain on wrist dorsi flexion. Both compression and traction caused pain in the neck but Valsalva manoeuvre was normal. Sperling’s test was contradictory, pain was complained of on the stretched side but not the compressed side and was not changed by adding external rotation to the manoeuvre.Conclusions:
·Reflexes are symmetrical.
·Nerve root tension signs are contradictory and inconsistent.
·There is no muscle weakness.
·There is no muscle wasting.
·There are no abnormal sensory findings.
·There is diffuse tenderness in the trapezii until distribution but no observable spasm or guarding.
·Pain distribution is non dermatomal.
·There is minor asymmetry in rotation on formal examination, but apparent freedom of movement in informal observation.
Whilst the Panel accepts that the motor accident on 12 April 2017 caused a soft tissue injury to the claimant’s cervical spine, the Panel finds that the appropriate categorisation is DRE I – 0% WPI.
Shoulders
The shoulders have a normal posture. There is no winging of the scapular and no wasting of the rotator cuff shoulder musculature on palpation. On the limited range of motion allowed, there is no dysrhythmia, crepitus or clicking. There is diffuse complaints of shoulder tenderness mostly in the deltoid but no spasm or guarding. Impingement signs as far as allowed to be assessed are negative. The best range of motion of three goniometer measurements is given below.
Right left Flexion 160° 160° Abduction 130° 140° Extension 40° 40° Adduction 40° 40° External rotation 80° 80° Internal rotation 70° 70° Internal rotation by the side lumbosacral lumbosacral Conclusions:
There are no signs of injury to the shoulder joints proper on either side. The range of motion is variable between the measurements. Further, range of motion is not improved when examined supine and the neck well supported.
A summary of the measured range of shoulder movements by the various examiners who have assessed the claimant and recorded measurements of range of motion in her shoulders prior to the Panel’s re-examination on 28 April 2023 is below:
R/L Flexion 140/135 full/full Full/full 180/180 120°/120° Extension 55/45 full/full In all 70/70 Abduction 150/160 full/full Movements 180/180 120°/120° Adduction 40/30 full/full 45/45 ER 90/90 full/full 90/90 IR 90/70 full/full 75/75 Assessor Chase April 2021 Dr Stephenson October 2018 Dr Davis October 2019 Dr Harbison August 2015 Dr Stephenson 2022 March The first record in the medical reports of restriction of movement in the claimant’s shoulders after the accident is in the report of Dr Giblin dated 21 November 2018, where he states that on examination of the Claimant’s shoulders she had restriction of movement in the shoulders at the extremes due to her neck pain, however, Dr Giblin does not record any measurements for this that he took.[12]
The next record of restricted shoulder movement is made by Medical Assessor Chase in April 2021 as referred to in the table above.[12] CB p 169.
Dr Sikander Kahn, consultant surgeon in injury management/impairment assessment, records in his report dated 3 April 2019 the movement of both shoulders were of normal range, but were painful at the extremes of abduction and internal rotation.[13]
[13] CB p 28.
In the opinion of the Panel, on the balance of probabilities the subject accident on 12 April 2017 did not cause a primary injury to either the claimant’s left or right shoulder for the following reasons.
Dr Vijay Maniam’s medico-legal report to the claimant’s lawyers does not mention the shoulders or record range of motion.[14]
[14] CB p 33.
Dr Abraszko saw the claimant again in September 2018 and reports immediate neck and back pain after the motor vehicle accident. She arranged for further investigations by bone scan which is ‘essentially normal.’ She advised ongoing physiotherapy. She does not mention the shoulders or record range of motion.[15] A pain drawing filled in by Ms Younan on 12 September 2018 providing information to Dr Abraszko identifies pain in the neck spreading across the trapezial region and the back of the arms and spreading down the whole of the back of the thighs. The front of the shoulders of the lateral arms is not marked.[16] The pain pattern is consistent with radiating pain from soft tissue injuries of the neck and low back. In Dr Abraszko’s medicolegal report to the claimant’s solicitors dated 18 July 2020 and after her consultations with the claimant in 2018 confirms tenderness in the cervical spine, variable muscle spasm in the cervical and lumbar spine but normal neurological examination. The shoulders are not mentioned.[17]
[15] CB pp 406-407.
[16] CB p 418.
[17] CB p 256.
Dr John Davis in his first medicolegal report to the claimant’s solicitors dated 14 October 2019 diagnoses mechanical injury to the cervical region and lumbar spine[18] and notes ‘there is no asymmetry or instability of either shoulder and there was a full range of movement’.[19]
[18] CB p 50.
[19] CB p 49.
Dr Brian Stephenson examined the claimant twice medicolegally for the insurer’s solicitors. In his first report dated 18 October 2018[20], he found no restrictions in the shoulders.
[20] IB p 21.
Further, MRI of the lumbar spine on 7 July 2018 was normal with no evidence of neural impingement[21], and MRI of the cervical spine on 9 July 2018 was normal but with slight loss of normal cervical lordosis.[22]
[21] CB p 13.
[22] CB p 241.
When Dr Stephenson reassessed the claimant in March 2022, he found there were restrictions to both shoulders but no apparent change in Ms Younan’s complaints or examination findings in the neck or the back.
Dr Stephenson in his report dated 7 March 2022 is of the opinion that, “the findings of the shoulders could be a continuation of the injury from the previous motor vehicle accident to which Jonathan Herald referred to as orthopaedic surgeon in report 20 May 2015”[23], and he confirmed in a supplementary report dated 22 March 2022 that assessment of the claimant’s whole person impairment arising from the accident on 12 April 2017 only would exclude both shoulders.[24]
[23] IB p 84.
[24] IB p 92.
No radiological investigations have been undertaken which indicated any pathological finding in either shoulder.
Further, applying the principle in Nguyen, in the opinion of the Panel, there is no pathology in the claimant’s cervical spine which is causative of any referred pain to her shoulders resulting in any impairment to the shoulders.
Accordingly, in the opinion of the Panel, there is no permanent impairment to the claimant’s right and left shoulders as a result of the injury to the claimant’s cervical spine caused by the accident.
Upper limbs
Strength, cutaneous sensation, reflexes, and range of motion of all other upper limb joints is normal.
Low back
Standing balance is excellent. The pattern traced out by Ms Younan is of central lumbosacral pain radiating equally towards the anterior superior iliac spines into the buttocks and the back of the thighs but not beyond the knee. There is no pain in the groin or trochanters on either side. Ms Younan can tip toe and heel toe walk without difficulty. She declined to hop because she said this would exacerbate her back pain. Trendelenburg sign is negative. Forward flexion is fingertips to the upper patella is right equals left, extension is limited to one third normal range. Side bending is fingertips to the medial joint line of both knees right equals left; rotation is one half range right equals left. To palpation there is diffuse tenderness but no guarding or spasm is felt (noting that the spine is covered by the garment). Ms Younan requested the examination table to be lowered in order to get on it but was able to get off without assistance. Girth of the thighs and calves is equal on both sides. Flexion when supine is only to 90° but comfortably passes this when a slump test is performed. On formal straight leg raising with ankle extension she complained of calf pain and was 70° on both sides. When repeated as a slump test there is full knee extension and ankle dorsiflexion and if performed in line with hips flexed and the knees taken to the point of comfortable extension (about 20° flexed), ankle dorsiflexion does not cause pain. Tension tests are inconsistent. Knee-jerk and ankle jerk are right equals left. Babinski sign is negative and sensory mapping over the exposed ankles and feet is normal.
Ms Younan was asked to perform a hands-free sit up with hip and knees flexed. She could not do a full sit up and complained that there was too much pain in the neck and back to do this. However, it was noted that she could raise her head and shoulders from the couch without observed discomfort.
Conclusions:
·Reflexes are symmetrical.
·Nerve root tension signs are contradictory and inconsistent.
·There is no muscle weakness.
·There is no muscle wasting.
·There are no abnormal sensory findings.
·There is diffuse tenderness in the lower lumbar spine but no palpable spasm or guarding.
·Pain distribution is non dermatomal.
·There is minor asymmetry in rotation on formal examination, but apparent freedom of movement in informal examination.
The Panel accepts that the motor accident on 12 April 2017 caused a soft tissue injury to the claimant’s lumbar spine. The appropriate categorisation is DRE 1 - 0% WPI.[25]
Lower limbs
The hips are normal with flexion to 120° and rotation beyond 30°. There is no tenderness in the trochanteric region on either side. She does complain of discomfort in the low back (but not hip) when asked to cross the knees or place the ankle of one leg on the knee of the other. The knees have normal alignment and stability and they comfortably flex beyond 120°. The hamstrings are tight on both sides and she cannot fully extend the knees with the hips flexed to 90° in formal examination but the same test done sitting shows no restriction. There was no tenderness of the trochanteric bursae.
Ankles and feet are normal.
The Panel found no record of prior complaints of right and left trochanteric bursitis until the list of complaints provided to Assessor Chase. The Wetherill Park Medical Centre makes a single reference to left hip pain in June 2019. Assessor Chase found normal movement of the hips and no crepitus but did note complaints of tenderness over the greater trochanteric region bilaterally. He does not comment whether the trochanteric bursitis complaints are related to the motor vehicle accident. He did not report that the claimant had an abnormal gait.
In the opinion of the Panel, the development of bilateral trochanteric bursitis in the claimant’s hips was not caused by the accident and there is no assessable impairment to her left and right hips.[25] IB p 17.
Impairment table
Body region WPI % Deduction for pre-existing condition Net WPI Cervical spine AMA 4 DRE1 0% Nil 0% Lumbar spine AMA 4 DRE 1 0% Nil 0% Total 0% WPI”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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: Insurance Australia Group Ltd v Keen[26] and Insurance Australia Ltd v Marsh.[27]
[26] [2021] NSWCA 287 at [40], [41] and [45].
[27] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the re-examination report of Medical Assessors Stubbs and Dixon in its reasons and adds the following further reasons.
Previous accidents in 2013 and 2014
The Personal Injury Claim Form dated 20 May 2017 records soft tissue injury to the neck, back, arms, legs and shoulder and the drawing marking affected areas of the claimant’s body identifies the shoulders, both arms below the elbow, the low back and the front of the thighs[28].
[28] IB p 17.
After the two previous accidents on 25 May 2013 and 12 June 2014, Ms Younan sought attention from Dr Romeo and Dr Shanmugam at the Edensor Road Family Medical Centre. She was referred to both Dr Herald (orthopaedic surgeon) and Dr Abraszko (neurosurgeon) as treating doctors and Dr Scott Harbison (orthopaedic surgeon) at the request of Allianz. Dr Romeo provided two medical reports to Allianz. MRI imaging of the brain, cervical spine twice and the lumbar spine were performed prior to May 2016. The MRI imaging did not show any abnormalities. Both Dr Abraszko and Dr Herald believed she had soft tissue injury to the cervical spine with residual soreness and stiffness. Dr Herald was of the opinion that she had bilateral impingement syndrome in the shoulders but there were no other abnormal findings. Both advised further expectant treatment. Dr Romeo’s letters to Allianz record whiplash injuries to the neck and back and a post-traumatic syndrome of pain. Dr Harbison was commissioned as an Independent Medical Examiner by Allianz and saw Ms Younan in August 2015. He was not of the view that the claimant’s capacity for employment or the need for housework assistance had been affected. He recorded that cervical spine movements were full and symmetrical, there were no neurological changes, and that both shoulders had a full range of movement.
The Edensor Road Family Medical Centre does not record any ongoing complaints of neck or back pain from December 2015 until the subject accident on 12 April 2017. [29]
[29] CB p 311.
In the opinion of the Panel, both of the previous accidents in 2013 and 2014 caused soft tissue injuries resulting in pain in the neck and in the low back. There are no underlying conditions disclosed on the MRI scans. The clinical records from Edensor Road Family Medical Centre show that there are no complicating factors such as neurological injury or that the neck pain was restricting shoulder movement between December 2015 and the subject accident on 12 April 2017
Apportionment for pre-existing impairment
As the Panel has determined that the combined permanent impairment as a result of the injuries caused by the accident is 0%, it is not necessary to address the issue of apportionment for pre-existing impairment.
Causation
For the reasons set out above, the Panel is satisfied that:
(a) the motor vehicle accident on 12 April 2017 caused injuries to the claimant’s cervical spine and lumbar spine;
(b) the motor vehicle accident on 12 April 2017 did not cause an injury to the claimant’s right or left shoulder or an aggravation of any pre-existing condition in her shoulders, and
(c) the motor vehicle accident on 12 April 2017 did not cause an injury to the claimant’s right or left hip.
Impairment assessment
The Panel has determined that the degree of permanent impairment as a result of the injuries caused by the motor vehicle accident on 12 April 2017 is a combined total of 0% as follows:
(a) cervical spine (DRE-I) – 0%, and
(b) lumbar spine (DRE-I) – 0%.
Applying the principle in Nguyen, the Panel has determined that there is no permanent impairment of the claimant’s right or left shoulder as a result of the injury to the claimant’s cervical spine caused by the motor vehicle accident on 12 April 2017.
As the Panel has determined that the injuries to the claimant’s right and left hip were not caused by the motor accident on 12 April 2017, there is no assessable impairment to the shoulders.
CONCLUSION
The certificate of Medical Assessor Chase dated 7 April 2021 is revoked. A replacement certificate is attached at the commencement of these Reasons.
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