Insurance Australia Limited t/as NRMA v Kozis
[2024] NSWPICMP 443
•4 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA v Kozis [2024] NSWPICMP 443 |
| CLAIMANT: | Julie Kozis |
| INSURER: | Insurance Australia Limited trading as NRMA |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 4 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of a medical assessment concerning the need for treatment of care; domestic assistance from the date of the motor accident for various periods to the date of the medical assessment and for the claimant’s life expectancy; issue of causation specifically in respect of the left shoulder; Held – Medical Review Panel not satisfied that the claimant suffered a left shoulder injury caused by the motor accident; the claimant suffered a cervical spine and lumbar spine soft tissue injury; the need for domestic assistance found to be causally related to the motor accident in respect of cervical spine and lumbar spine injuries only; the issue of the number of hours of domestic assistance required referred back to the Commission for assessment by an occupational therapist. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Home dated 1 June 2023 and finds: (a) the following treatment: (i) the need for domestic assistance from the date of the motor accident to 12 December 2018; (ii) the need for domestic assistance from 13 December 2018 to 23 January 2019; (iii) the need for domestic assistance from 24 January 2019 to the date of this medical assessment, and (iv) the need for domestic assistance from the date of this medical assessment and ongoing for the remainder of the claimant’s life expectancy relates to the injuries (cervical and lumbar spine) caused by the motor accident. Reasonable and necessary 2. The following treatment disputes: (a) whether 0-13.5 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to 12 December 2018 is reasonable and necessary in relation to the injury caused by the motor accident; (b) whether 0-17 hours per week of domestic assistance in relation to the physical injuries from 13 December 2018 to 23 January 2019 is reasonable and necessary in relation to the injury caused by the motor accident; (c) whether 0-7.15 hours per week of domestic assistance in relation to physical injuries from 24 January 2019 to the date of this medical assessment is reasonable and necessary in relation to the injury caused by the motor accident, and (d) whether 0-7.15 hours per week of domestic assistance in relation to the physical injuries from the date of this medical assessment and ongoing for the remainder of the claimant’s life expectancy (0-33 years and every year in between) is reasonable and necessary in relation to the injury caused by the motor accident are referred back to the medical services of the Personal Injury Commission for assessment by an occupational therapist. |
STATEMENT OF REASONS
INTRODUCTION
Julie Kozis (claimant) has made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) following a motor vehicle accident occurring on 6 October 2016.
The claimant was the driver of a vehicle which was hit from behind by another vehicle, insured by Insurance Australia Limited t/as NRMA (the insurer), in Bennetts Green NSW. The claimant alleges injury as a result of the accident.
A dispute has arisen between the claimant and the insurer has to the claimant’s requirement for domestic assistance over various periods since the accident.
The dispute was referred to the Personal Injury Commission (Commission) and Medical Assessor Home issued a certificate and reasons dated 1 June 2023 which certified that the various periods of domestic assistance were reasonable and necessary in relation to the injury sustained in the motor accident. He referred the dispute back to the Commission for assessment by an occupational therapist.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s determination.
The President’s Delegate decided on 26 July 2023 that there was reasonable cause to suspect a material error in the assessment and accepted the Review application. A Review Panel was convened to conduct the Review.
LEGISLATIVE FRAMEWORK
The claimant’s entitlement to damages is governed by the provisions of the MAC Act.
Section 83 of the MAC Act imposes a duty upon an insurer to make payment for treatment and attendant care services which are reasonable and necessary, properly verified and relate to the injury caused by the motor accident.
Part 3.4 of the MAC Act sets out the mechanism for dispute resolution of a medical assessment matter, which includes a dispute about whether the treatment is reasonable and necessary and relates to the injury caused by the accident (s 58(1) of the MAC Act).
Section 63 of the MAC Act, makes provision for a review application to be made to the President of the Commission on the grounds that “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.”
A Review Panel is to consist of a Member of the Motor Accidents Division of the Commission and two Medical Assessors (s 63(2) & (2B)).
The Review is not necessarily confined to the issues raised in the application but is a “new assessment of all the matters with which the medical assessment is concerned” (s 63(3B)).
Rule 128 of the Personal Injury Commission Rules 2021 (Rules) permits the Review Panel to determine its own proceedings and the Review Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
THE REVIEW
The Review Panel made directions requiring the parties to lodge complete paginated and indexed bundles of documents relied upon.
The Review Panel determined that a re-examination of the claimant was necessary and an examination was arranged to occur with Medical Assessor Margaret Gibson on 19 January 2024.
ASSESSMENT UNDER REVIEW
Medical Assessor Home noted the claimant providing a history of intermittent neck pain, present most days with no distal radicular symptoms. The claimant also reported left shoulder pain with difficulty raising her left arm above the horizontal, and difficulties with overhead activities. “Fairly constant” back pain was also recorded of average intensity of 8 out of 10. No reports of paraesthesia were given.
Medical Assessor Home determined the claimant suffered soft tissue injuries to the cervical and lumbar spines superimposed by underlying degenerative changes.
He does not appear to have accepted the claimant’s alleged left shoulder injury was caused by the accident, stating: “there is some doubt about her left shoulder condition, noting the delay in presentation between the date of accident and her presentation to a physiotherapist around April 2017 with left shoulder pain.”
Despite the above, Medical Assessor Home when providing comment on the issue of whether domestic assistance from 13 December 2018 to 23 January 2019 was causally related to the motor accident, he found there was a requirement, and noted this related to the period following left shoulder surgery when there would have been an increased need for domestic assistance, particularly overhead tasks.
The need for domestic assistance was found to be causally related to the injuries to the cervical and lumbar spine caused by the motor accident. Medical Assessor Home found that the injuries had not resolved, noting ongoing complaints recorded by various treating practitioners.
The following was certified by Medical Assessor Home as being related to the injury caused by the motor accident:
(a) the physical injuries give rise to a need for domestic assistance from 13 December 2018 to 23 January 2019;
(b) the physical injuries give rise to a need for domestic assistance from 24 January 2019 to the date of the medical assessment, and
(c) the physical injuries give rise to a need for domestic assistance from the date of the medical assessment and ongoing for the remainder of the claimant’s life expectancy.
The question of the number of hours of domestic assistance required for the various periods was referred back to the Commission for assessment by an occupational therapist.
SUBMISSIONS
Insurer’s review submissions dated 9 June 2023
The insurer highlights a perceived inconsistency in the Medical Assessor’s findings where at one point it is apparent that he found the left shoulder injury was not causally related to the accident, yet found that the need for domestic assistance from 13 December 2018 to 23 January 2019 was related to the period following left shoulder surgery.
Similarly, the insurer notes that the Medical Assessor made comment for the period 24 January 2019 to the date of the assessment that domestic assistance was required due to ongoing complaints of “…neck, back and left shoulder pain with restricted spinal and left shoulder motion” despite him earlier finding that the shoulder injury was not causally related to the accident.
Claimant’s review submissions dated 5 July 2023
It is submitted that the issue of whether the left shoulder is related to the motor accident is the subject of an ongoing dispute. There is mention of a finding that the left shoulder is not related and an ongoing dispute exists due to an alleged oversight of the Commission in failing to address certain material.
It is stated: “…any decision that the left shoulder is not related is based on incomplete evidence, which has been acknowledged by the Personal Injury Commission and is the subject of review.”
It is further submitted that in any event it was open to Medical Assessor Home to determine the need for domestic assistance arose from the accepted injuries to the neck and back.
ADDITIONAL MEDICAL CERTIFICATES/REASONS
Review Panel Certificate dated 13 January 2022
The Review Panel reviewed a previous certificate of Medical Assessor Harrington dated 14 December 2020. The Review Panel was comprised of Medical Assessor Crane, Medical Assessor Stubbs and Medical Assessor Maloney.
The Review Panel certified that an injury to the cervical spine caused by the motor accident gave rise to a whole person impairment of 0% which is not greater than 10%. It was further found that injuries to the lumbar and thoracic spine were caused by the motor accident have resolved and do not give rise to a permanent impairment.
Lastly, the Review Panel certified that injuries to the left and right shoulder are not causally related to the motor accident.
In their reasons, addressing the issue of causation, the Review Panel stated:
“The Panel considered biomechanical forces resulting from the low impact rear-end collision could have caused soft tissue injury to the cervical spine and lumbar spine which would be expected to have rapidly resolved.
The Panel noted the nine-month temporal delay following the accident before there was any recording of the problem with the left shoulder and considered this was an indication that there was no causation for an injury to the left shoulder as a consequence of the subject motor vehicle accident.”
Certificate and Reasons of Medical Assessor Alexey Sidorov dated 29 June 2022
Medical Assessor Sidorov certified that the need for domestic assistance on the basis of psychological injury does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances.
The claimant was noted to have ongoing pain and limited mobility and had negative ruminations about her situation. A diagnosis of persistent depressive disorder was made.
Certificate and Reasons of Medical Assessor Harrington dated 21 April 2023
The determination relates to a treatment dispute. It was certified that various treatments referred for assessment such as consultations with a general practitioner (GP), pain specialist, physiotherapist and medication do not relate to the injury caused by the motor accident and are not reasonable and necessary.
In his reasons, Medical Assessor Harrington, noted the claimant had undergone conservative treatment initially under the guidance of her GP. In addition, she was referred to Dr Petrelis who performed a left arthroscopic decompression and mini open rotator cuff repair on 12 December 2018. The claimant was noted to have been compliant with post-operative rehabilitation. In addition, it was noted the claimant had received treatment by way of chiropractic sessions, exercise physiology, hydrotherapy, medications, surgery and pain management with Dr Simon Tame.
He states in his reasons that the claimant “…has received extensive treatment which is now adequate in the circumstances. I do not believe the insurer would be liable for ongoing treatment.”
DOCUMENTATION
The Review Panel has considered all documents provided by the parties in the bundles lodged in compliance with directions made by the Review Panel.
Personal Injury Claim Form dated 21 June 2017
The claim form has an “x” marked on certain areas of a body pictogram. Those areas include both sides of the chest, neck, both sides of the lower back, the head, the right bicep area, the left knee, ankle and foot and the shoulders at the base of the neck. As an annexure marked “A”, the following injuries were listed as being suffered from the accident:
(a) left breast;
(b) right shoulder & arm
(c) bilateral wrists and hands;
(d) headaches;
(e) thoracic spine;
(f) pain in right axilla;
(g) psychological injury, and
(h) general bruising and abrasions.
Medical certificate of Dr Duvenage dated 31 May 2017
The diagnosis/description of injuries is listed as “L breast + R axilla headaches, tight neck, low back injury. Diagnosed with soft tissue injuries. Still lower back pain; and pain in R axilla + painful neck [illegible]”.
Clinical record of Charlestown Medical & Dental Centre
The notes provided begin in May 2007. Attendances prior to the accident document various unrelated ailments. The complaints include pain in the left hand and right elbow pain in September 2015.
The claimant first attended upon the practice after the motor accident on 8 October 2016. It is noted that there were unsecured pot plants in the back of the car that hit her in back. She complained of pain and stiffness of the left breast, right axilla, headaches, tight neck and lower back and left knee and foot, and both wrists.
On examination the doctor found no significant injuries and diagnosed them as soft tissue. He noted the neck to be “OK” with full range of motion. Neurological examination was noted as “OK”. She was advised to take simple analgesia.
The claimant next attends the practice on 31 December 2016 in respect of an unrelated issue. Such pattern continues until the claimant attends on 1 March 2017 with a note of ongoing pain in the right axilla. She was given a referral letter. On 10 April 2017 it was noted that pain had settled down but she was still sore and was due for follow up with surgeon. The motor accident was noted and ongoing pain (unspecified).
On 19 April 2017 the claimant returns and “longstanding back pain” is noted. It was advised the claimant should return to the surgeon as well as chiropractor for mobility improvement. Again on 28 April 2017 it was noted that the claimant has ongoing “pains” since the motor accident with pain across the lower back and down legs noted.
On 10 May 2017 back and sciatica issues are noted with the claimant continuing to see a chiropractor. It is noted that since the accident the claimant suffers from lower back pain with it referred down both legs.
On 31 May 2017 the claimant noted that she wanted to see an orthopaedic surgeon for accident related injuries. The doctor was also given forms to fill out for the subject claim.
The claimant was referred for an MRI scan and on review with her GP on 5 June 2017 the results were discussed and she was advised on posture and core. Also appears she was advised to lose weight. It is documented the claimant has had issued since the motor accident and has been seeing a chiropractor for “years.”
The first mention of left shoulder symptoms is made on 30 June 2017. The GP notes give a history of “lower back sore and L shoulder sore”. The pain was stated to be “mostly localised.” The motor accident is noted and it is stated that since the accident her left shoulder “locks up” and is “crunchy.” Pain with internal rotation and abduction is noted and when working above shoulders.
On 5 July 2017 an X-ray is said to show a supraspinatus tear and bunching. An ultrasound was ordered and the claimant was advised to “get ct guided cortixone [sic] back and neck and shoulder. To see physio.”
The claimant returned on 7 July 2017 after cortisone treatment. It was noted the claimant has a tear of the supraspinatus and was advised on diet and exercise. It was stated that it was doubtful that chiropractic manipulations were at all helpful and the claimant was told to concentrate of posture and see a physiotherapist.
On 11 July 2017 the claimant’s shoulder was said to have been very sore the day before and she had a massage that night.
On examination of the shoulder on 14 July 2017 left shoulder abduction was said to be limited with impingement positive. Examination of the lumbar spine revealed limitation of side flexion and was bilaterally stiff. A note of STM (soft tissue mobilisation) is made of the neck and shoulder. The record includes a note of the motor accident with tight shoulders, back and foot and “didn’t pay much attention to it.” The claimant was noted to have received treatment by way of chiropractic, physiotherapy and massage with no improvement in addition to cortisone injection on 6 July 2017. The shoulder was noted to feel restricted, and crunches a lot.
The claimant attends the practice regularly with ongoing complaints focussed on the back, neck and left shoulder. On 5 September 2017 the claimant is noted to have head pain and was requesting an X-ray of the skull noting that she had a motor accident “32 yrsago” and had a fractured skull and it felt the same. It was noted that the headache started after going to the physiotherapist who did a hard massage on the skull.
On 2 November 2017, lengthy consultation notes are made in respect of the subject motor accident. It was noted that the claimant sustained a left supraspinatus full thickness tear and had seen a surgeon who had offered to operate. It is stated the claimant initially reported the injury but did not seek assistance with her injuries. She was noted to have had an operation on a lump under her right arm in December 2016 and took some time to recuperate. It is stated that eventually in March 2017 she started seeing a chiropractor because of soreness in her neck, left arm, back, left knee and ankle. It was noted the claimant was not working and has two staff to cover her hours as it was painful to elevate her arms when she is cutting hair.
On 5 August 2018 a note is made that the claimant was involved in a motor accident the night prior when the car hit a kangaroo. She was noted to have neck pain.
On 13 November 2018 the claimant was noted to have tried to do a few haircuts and felt ok at the time, however felt increased pain for days afterwards. It was considered that the claimant was not fit to work as a hairdresser at the time.
The notes reveal the claimant had surgery in December 2018, with a note on 19 March 2019 that the claimant had increased shoulder pain since doing strengthening exercises.
The file includes a letter to Dr Hopcroft dated 31 May 2017 which notes the motor accident and since that time has had ongoing lower back pain and neck and shoulder discomfort (both left and right).
Also on file is a letter from GP, Dr Adamski, dated 19 December 2017 which is addressed to “whom it may concern”. It states as follows:
“I am writing to voice my protest with regard to NRMA’s decision not to accept liability for Julie Kozis’s left shoulder injury. It is usual that it can take several days for all injuries to become apparent after a motor vehicle injury. The fact that Dr Venter wasn’t aware of Julie’s left shoulder rotator cuff injury in the face of her other injuries that were causing her pain is not surprising.
Unfortunately shortly after the injury Julie had to deal with a number of conflicting health needs including a lump under her right arm which required surgery, abnormal CT scans of her which raised the question of a malignancy and required further investigation, chest pains which required a stress test. She had gynaecological problems, low iron and a colonoscopy. She had a total of 16 consultations in our surgery not counting the numerous investigations and specialist consultations it was not until June in 2017 that Julie was able to give her left shoulder the priority it required and Dr Duvenage recorded his concerns about her left shoulder and order an u/s and xray which revealed the injury to her left shoulder which she sustained in her MVA on 6/10/16.”
The file includes a facsimile from occupational therapist, Helen Bell dated 25 June 2018 which raises concerns regarding the claimant feeling suicidal a couple of weeks prior and wanting to throw herself under a bus. She was said to be no longer feeling that way but remained very distressed about non-resolution or alleviation of pain symptoms.
Helen Bell sent a further facsimile on 6 November 2018 which noted the claimant’s symptoms had settled well and had an improved range of movement and feeling more positive. It was noted that she was “attending to all domestic tasks as per pre-injury status, with the exception of cleaning windows, using pacing strategies, equipment and adaptive techniques as required.”
She was also said to have commenced resumption of her hair cutting on the afternoon of seeing Dr Petrelis on 25 October 2018. It was said that it was unknown at that stage whether she would proceed with shoulder surgery.
Report of Dr Hopcroft dated 31 July 2017
The report is addressed to the claimant’s GP. Dr Hopcroft notes the claimant was brought to the appointment by her lawyer. The report includes a history of the claimant suffering a major horse fall accident on 9 March 1985 at the age of 19, when she was catapulted off a horse into a telegraph pole, suffering a depressed fracture of the skull and intracranial haematoma.
Dr Hopcroft recommended exercises for the left shoulder and a referral to a shoulder specialist. In respect of the lumbar spine, regular hydrotherapy was recommended. In respect of the cervical spine, intermittent cervical traction and mobilisation was recommended.
On examination, the claimant was noted to have full range of movement of both shoulders, cervical spine and lumbosacral spine with straight leg raising to 70 degrees bilaterally and the deep reflexes symmetrical. On this basis, Dr Hopcroft stated that he believed the motor accident had “…simply aggravated her underlying pre-existing changes.”
This report was followed up with a letter from Rob Williams Solicitors dated 17 August 2017 that alleges the claimant was distressed by the consultation and the report. It was noted the claimant is in extreme pain two to three days a week. The letter states it attaches a statement and chronology and requests that Dr Hopcroft amend his report and “we respectfully ask that you either remove and destroy the said letter, dated 31 July or if unable to remove that a note be made that the letter is incorrect and has been amended.”
Report of Dr Petrelis dated 9 October 2017
The report notes the claimant is left handed and self employed as a hairdresser. The motor accident is recorded with a history that “she noticed her left shoulder was sore after that time and it has been progressively getting worse. She hasn’t been working for a few months because of her shoulder.”
On examination, the left shoulder elevation was not to 160 degrees, internal rotation T8, external rotation 45 degrees. “Jobes” test was noted as negative and “Hawkins” test positive. External rotation was noted as preserved with tenderness over the antero lateral aspect.
Dr Petrelis states the claimant has an acromial spur with full thickness tear. He recommended an arthroscope, decompression and cuff repair and tuberoplasty.
Dr Tame
In a report dated 14 March 2018 the claimant was noted to complain of low back pain radiating to the buttocks and anterolateral thigh with further radiation to the foot on the left side. An MRI scan of the lumbar spine was noted to have excluded any significant neural compression.
Also noted were complaints of neck pain worse on the right side than the left. It was noted the pain radiates to the suboccipital area and the shoulders. It was noted a CT scan of the neck showed possible foraminal stenosis of the C5/6 level. It was stated that neural compression of this level could produce pain in the shoulder area.
Dr Tame also noted the claimant to have developed persistent left shoulder pain since the accident. The subacromial injection was noted to have not helped and imaging studies demonstrating a rotator cuff tear. It was noted the claimant could abduct her shoulder to about 120 degrees and touch the midline of her back at the L4/5 level. The pain is noted to be felt over the deltoid area radiating anteriorly and also down towards the elbow. He states:
“Julie had no left shoulder pain or history of left shoulder problems prior to her motor vehicle accident. Since the motor vehicle accident, she has developed persistent left shoulder pain. Whether or not there was any pre-existing pathology in the shoulder prior to Julie’s accident, it was completely asymptomatic. Julie’s motor vehicle accident has resulted in Julie developing long-term shoulder pain, which she otherwise would not have developed in my view. Apparently Julie’s insurer has denied liability for her ongoing shoulder pain which in my view is ridiculous.”
The doctor described the claimant as motivated, however, frustrated at multiple medical opinions and the insurer not accepting liability for the left shoulder. He was of the opinion that a pain focussed exercise physiology program should be undertaken.
A number of further reports are provided by Dr Tame. In a report dated 14 September 2018 the claimant is noted to have ongoing mechanical shoulder symptoms. He noted Dr Sonnabend’s opinion that the claimant should trial a sling for week prior to surgery. Dr Tame states that it was clear the claimant’s left shoulder symptoms would not improve with conservative treatment.
In a report dated 29 March 2019 it is noted the claimant had shoulder surgery performed by Dr Petrelis four months prior. She could abduct her left shoulder to 90 degrees. It is stated that it was possible that the residual left shoulder pain may be related to the cervical spine pathology. He recommended an MRI to better evaluate the situation. However, in a report dated 11 June 2019 it was acknowledged that same had occurred in 2018. Dr Tame noted that the scan report excludes significant central or foraminal neural compression. From viewing the scan itself he found some reduced canal calibre and stated there could be some non compressive radicular symptoms and therefore may be some symptomatic improvement with a steroid injection.
He found that the claimant was progressing reasonably well following shoulder surgery with a gradually improving range of motion.
In a report dated 10 December 2019, Dr Tame notes persistent left shoulder and arm pain with abduction limited to 90 degrees, with similar restriction with internal rotation. The more recent MRI scan of the cervical spine was noted to show severe canal stenosis at the C5/6 level as well as prominent foraminal stenosis more on the left. He states it is difficult to know whether the cervical spine pathology was symptomatic or not.
Dr Tame requested approval for a steroid injection. In a report dated 27 May 2020 Dr Tame notes that the injection provided minimal help.
Report of exercise physiologist, Mr Phil Rees dated 9 July 2018
The claimant was referred for management of persistent lumbar spine pain. It was explained that progress at times as been hampered by “high levels of distress” related to the insurance process and “justification” of the left shoulder pain.
The claimant’s pain was reported as centred around her lumbar region, stemming across the top of her pelvis. She described stiffness around the lumbar spine but displayed a full range of motion. Shoulder examination showed mobility as reasonable, with weakness noted in external rotation and elevation beyond 120. Reasonably push/pull strength was displayed with limits in repetitive motions.
Report of Dr Petrelis dated 25 October 2018
Examination of the left shoulder demonstrated range of motion of 160 degrees, 45 degrees of external rotation, internal rotation of T12, with “Jobe’s” test negative and “Hawkins” test mildly positive.
Dr Petrelis maintained his recommendation to have surgery, by way of decompression and rotator cuff repair, however, given the delays a repeat x-ray and ultrasound should be performed.
Report of Dr Petrelis dated 3 June 2019
It was noted that it was six months post shoulder surgery. Dr Petrelis stated that he was happy where things ended up considering the size of the tear. Left shoulder range of motion was 160 degrees elevation, 45 degrees external rotation and internal rotation has improved to mid lumbar spine.
It was reported that if the claimant did a lot with her shoulders then symptoms flare up. Dr Petrelis noted the C5/6 changes present on the CT scan and there is a “possibility” a component of the neuralgic pain at different times is coming from the claimant’s neck.
It was noted that from the shoulder point of view, things were stable, and she would improve up to a year form the time of the surgery and at the time she was not able to tolerate work.
Statement of claimant dated 15 August 2021
It is stated that the claimant’s vehicle was written off after the accident.
The statement lists injuries sustained in the motor accident as follows:
(a) left breast;
(b) left shoulder and arm;
(c) bilateral forearms, wrists and hands;
(d) neck, thoracic spine and lumbar spine;
(e) general bruising;
(f) left knee ankle and foot;
(g) thoracic spine, and
(h) lumbar spine.
The claimant states that at the time of the accident and for three or four months she felt the condition would improve, but that did not happen. She struggled with her work as a hairdresser due to pain and with persistent pain in her neck and shoulders.
She explains that doctors were initially worried about a lump and pain in her breast and also her low back issue.
Ultimately, the pain in her neck and left shoulder with the inability to work at or above shoulder height caused the claimant to stop work as a hairdresser.
In respect of domestic assistance, the claimant states that prior to the accident she performed all the house cleaning. In addition she was attending the gym four to five days a week in addition to a dance class once a week.
She states that since the accident, due to the pain and restriction in her shoulder, back and neck she has not been able to meet the same levels of domestic duties as prior to the accident.
Since having shoulder surgery, the claimant states that she still has only been able to complete approximately 60% of the domestic duties with modification of activity.
Morisset Chiropractic Centre
The notes are very condensed and difficult to decipher. It can be ascertained, however, that the claimant had attended the centre prior to the accident. Amongst other things complaints include lower back pain and sacroiliac joint symptoms (30 April 2016).
Consultation notes of 31 March 2017 mention the motor accident with it noted the claimant has suffered pain “all over” her spine since. Rhomboid symptoms are noted. There is no mention of shoulder pain. Further consultations note ongoing symptoms in the claimant’s back.
Elite Performance Physiotherapy
An email is provided addressed to the claimant from Elite Performance dated 23 February 2018. It states that the claimant had been treated since 2016. The claimant attended on 4, 6, and 11 April 2017 for treatment of neck and shoulder issues that were caused by the motor accident. It is stated that the reason that “it” hadn’t been treated was because it was sore and tender to touch. It is stated:
“During my examination I found structures in her neck and shoulder that where limiting her range of motion and causing pain and was rescripted in certain positions due to the motore vechile incident. My initial thoughts where I thought there may be some sort of partial thickness tear within the supraspinatus muscle that helps to stabilize the shoulder. In this case it felt like it was on the anterior side of the tendon which made sense but there were other contributing factors that was also causing her symptoms. There was a dull ache that presented itself plus the strength side was also an issue due to these structures being over used.” [sic]
It is stated that the tear was not discovered until 5 July 2017 by ultrasound after a massage therapist told her that there was something wrong with her shoulder and she needed it investigated.
Medico-legal report of Dr Kleinman dated 15 November 2019
The report is addressed to the claimant’s lawyers. The doctor took a history ongoing pain in the neck, some tightness across the front of the chest, left shoulder pain and pain in the lower back.
It was noted that the claimant tries to do housework and her husband helps her with the heavier tasks.
Dr Kleinman diagnosed aggravation to degenerative changes in the cervical and lumbar spines in addition to a tear of the supraspinatus tendon. In terms of prognosis, he stated the claimant is going to complain of ongoing pain and stiffness in her neck and left shoulder indefinitely. In addition, pain will be complained of indefinitely in respect of the lower back.
In terms of domestic duties he considered the claimant would have difficulty performing any domestic duties which involved repeated bending, lifting and carrying heavy weights and working her left arm above shoulder level. It was stated that after the shoulder surgery, the claimant would not have been able to perform any domestic duties for six to eight weeks while her left arm was in a sling.
Medico-legal report of Dr Sonnabend dated 22 May 2018
The report is addressed to the insurer.
The claimant provided a history that in general terms she felt that her left shoulder was slowly deteriorating.
Dr Sonnabend stated that examination and imaging studies confirm a significant tear of the left rotator cuff sufficient to explain the shoulder pain. He went on to explain that the eburnation and hypertrophy of the greater tuberosity, seen on plain radiographs, suggests some chronic pathology involving the supraspinatus insertion, a not uncommon findings in hairdressers. He stated: “it is certainly possible that the pathology was asymptomatic until the accident of October 2016, and Mrs Kozis’ history suggests that that accident resulted in extension and symptomatic exacerbation of any pre-existing left rotator cuff pathology”.
Dr Sonnabend thought shoulder surgery was indicated but noted that the significant neck pain meant that she would find the post-operative sling immobilisation intolerable. He also felt that the subacromial steroid and local anaesthetic injection did not produce an alleviation of symptoms which suggest those symptoms are of a cervical rather than shoulder origin and that they would not be relieved by shoulder surgery.
Report of Dr Sonnabend dated 26 June 2018
This report is in response to an purported email from the insurer. It is apparent that a copy of a copy of a report of Dr Menogue was provided. Dr Sonnabend noted that his history obtained was different to Dr Menogue. It is stated that he obtained a history that the claimant did in fact undergo three physiotherapy sessions for her left shoulder in April 2017 but they exacerbated her pain and therefore she did not persist with shoulder physiotherapy.
He goes on to state:
“…given Mrs Kozis’ understandable pre-occupation with possible breast malignancy and associated breast surgery in the intervening period, I see no inconsistency in the presentation of her shoulder problem and have no reason to alter my assessment of Mrs Kozis’ left shoulder.”
Report of Dr Menogue dated 21 July 2020
In respect of the left shoulder injury issue of causation, the doctor notes there was no reference to any left shoulder injury in the first six to eight months post-accident. He therefore states that “I do not consider there is evidence to support a primary and isolated injury involving the left shoulder.”
Further he states:
“…there was no history that movement of the left shoulder resulted in left-sided neck pain, nor was there history of movement of the neck resulting in left shoulder pain.
Given the above parameters, there is insufficient evidence to establish a nexal connection between the neck and left shoulder and as such, the Nguyen principle cannot be used.”
RE-EXAMINATION
Ms Kozis attended as arranged. She was unaccompanied to the assessment. She had brought some imaging with her on that day, the reports were already on the file.
The dispute related to the need for domestic assistance and was a review of the original assessment performed by Medical Assessor Alan Home on 23 May 2023.
There had been a previous medical assessment from Medical Assessor Harrington on 14 December 2020 where it was computed there had been neck and left shoulder injuries arising from the accident and these had exceeded the 10% whole person impairment threshold.
It was noted that the shoulder was first mentioned in April 2017 by the chiropractor and physiotherapist but there was no mention by the GP until June 2017.
Ms Kozis advised that she is left-handed for handwriting although she cuts hair using her right hand, in her capacity as a barber/hairdresser.
Her previous medical history had included a significant head injury at age 19. She had been thrown from a horse and she had suffered an intracranial haematoma. She had undergone a craniectomy. She advised that she had made a good recovery from this injury. There had been no other health issues subsequently.
Ms Kozis had completed Year 10 at school, then worked as a cake decorator for several years. Following this she trained as a beauty therapist and worked in this capacity for a number of years.
She said she and her husband had had three different salons over the years. At age 30 she commenced an apprenticeship as a hairdresser. She had then worked as a lady’s hairdresser in their shop for about 13 years and in July 2011 they started a barbershop. After that she was mainly performing men's barber work, and only very occasionally ladies.
She said she was working on a full-time basis up until the time of the accident.
She was a bit vague in relation to her activities after the accident, saying she would visit the shop and serve customers and work on the till and she would do some buzz cuts with a clipper as she could do these one handed.
She had been off work for the surgery to the right axilla, she was unsure how long.
She said she currently cuts hair at the barbershop. Her and her husband work from 10.00am to 2.00pm and then 3.00pm to 5.00pm. However, she only works on Mondays.
She volunteered that in late 2022, there were some significant domestic issues. They had moved house and there were problems in the marriage and they also had other members of the family living with them at the time.
By the time of the subject accident she had been living in a single-storey, two-bedroom, one-bathroom house Belmont in. She said they moved to a country property in 2019 on 10 acres as she was having difficulty handling the noise in the city but by October 2022 they had moved back to the house in Belmont, which is where she is living now.
On the day of the subject accident, Ms Kozis had been driving a 2007 Honda Civic sedan. She said that prior to leaving home, she had a flat battery and needed to have this replaced. She had been on her way to the family barbershop to relieve her husband. She had been travelling along Groves Road in Bennetts Green. She had her seatbelt fastened. There were no passengers in the car. She had moved to the right side of the road waiting to make a turn, when she was hit from behind by a small Suzuki SUV. There was no front-end collision, so no air bag deployment. Her car was subsequently moved to the side of the road, then towed away and eventually written off for insurance purposes.
Ms Kozis recalled being thrown forward with the impact. She recalled that after the impact she had noted several of her fingernails were broken. She was able to get herself out of the car and she had then spoken with the other driver who advised that he had been distracted by a motorhome. Details were exchanged and a friend arrived and he drove her on to the family barbershop. She had reported the accident over the phone and then her husband had driven her to the police station later that day to make a report.
She said they had tried to see the GP, but they were too busy, so instead they attended the following day. She could not recall whether she had taken any analgesics prior to visiting the GP.
From the clinical notes it could be seen that she had visited Dr Barry Venter on 8 October 2016 and then again on 31 December 2016. It was pointed out to her that there had been no mention of any shoulder complaint at either of these visits. Ms Kozis said she had mentioned her shoulder in her statement. The statement was dated 23 April 2021 with a handwritten note dated 10 October 2016 referencing complaints of neck pain spreading to the shoulders.
Therefore, it appeared there had been no direct injury to the left shoulder arising from the accident, but there had been pain felt in the left shoulder girdle which had spread from the neck.
Ms Kozis said she had not paid as much attention to her accident-related injuries as towards the end of that year as she was offered the opportunity to go ahead with surgical excision of a longstanding lipoma from her right axilla. Unfortunately, it appears this surgical procedure was complicated and she had sustained some brachial nerve damage.
It was not until June 2017 that she was referred for ultrasound and X-ray of her left shoulder and then in July that year a subacromial steroid injection. On 12 September 2018, Dr Petrelis performed a left shoulder arthroscopy/acromioplasty and rotator cuff repair and biceps tendinosis at Warners Bay Private Hospital. She said she had physiotherapy treatment with Mr Paul Henderson and chiropractic treatment with Ms Kozislara Ingall. She had also seen a physiotherapist, Mr Koon Keith Ho, on referral from the general practitioner in July 2017 and she had seen an exercise physiologist.
She said a lawyer had come into their shop and her husband had told him that she was off work due to her accident related injuries. It seems that referral to Dr Paul Hopcroft in Newcastle was recommended.
Ms Kozis described her current complaints as including tightness and locking of her left shoulder. She indicated pain over the left trapezial region. Her neck is stiff and sore, with pain felt mainly in the midline and at times the neck feels as if it gets stuck. Movements of the neck are sometimes restricted to the left and sometimes to the right. There was no pain referral beyond the neck apart from to the left trapezial region and into the back of the head with precipitation of occipital to frontal headaches. She said her low back "hurts a lot" and feels "like broken glass". There is pain referral to the left leg, involving left buttock, anterior left thigh. She feels at times that her left leg gives way.
She said that since the accident she has had difficulty cooking and cleaning the bathroom. She manages to wipe the sink but can’t clean toilets, shower or bath. She doesn’t hang clothes on the outdoor line, but now uses an airer. She finds when cooking she cannot stir food for very long due to left shoulder pain. She would sometimes do some sweeping at home. She said they have wooden floors throughout apart from the two bedrooms, which are carpeted. She said she tried various vacuums over the years, but still has difficulty vacuuming the carpets.
She drives an automatic car but finds her sitting tolerance is limited by low back pain and at times her neck becomes stiff and she has difficulty checking the road. She said when driving she keeps her arms low on the steering wheel to reduce shoulder pain and she has a heated seat to reduce the back pain.
IMAGING
Plain X-ray lumbosacral spine dated 21 April 2017 had shown moderate scoliosis in the thoracolumbar spine with convexity to the left. Disc spaces at L2-L4 show narrowing on a concave side of the spinal curvature. There is a mild to moderate degree of osteoarthrosis between L1 and L5, no recent or old fracture, no spondylolysis or spondylolisthesis.
Plain X-ray pelvis dated 21 April 2017 had shown no abnormalities.
CT lumbar spine dated 3 May 2017 had shown L1/2, L2/3 and L3/4 spinal canal exit foramina are normal. At L5 there is no significant disc bulge. The spinal canal is normal. Minor narrowing of the exit foramina, particularly on the right, secondary to a prominent disc but no features suggesting impingement. No abnormality at L5/S1.
MRI lumbosacral spine dated 2 June 2017 had shown mild degenerative changes and high intensity signal suggestive of annulus fibrosis tear at L4/5 on the right.
CT cervical spine dated 30 June 2017 had shown mild to moderate disc height loss at C5/6 with mild to moderate posterior broad-based disc osteophyte complex protruding into the canal and foramina. Mild anterior canal narrowing at C5/6.
Plain X-ray left shoulder dated 30 June 2017 had shown no fracture or dislocation. Minor bony protrusion along the under surface of the greater tuberosity suggesting underlying chronic supraspinatus enthesophytosis.
An ultrasound of the left shoulder dated 5 July 2017 had shown normal appearances of the biceps tendon, supraspinatus – there is a full thickness tear in the mid-supraspinatus tendon measuring 14 x 11 millimetres. Infraspinatus intact. Subscapularis intact. Teres minor intact. Subdeltoid bursa. No thickening or fluid collection. AC joint unremarkable. Dynamic Study: there is bursal bunching at abduction.
An ultrasound guided left shoulder steroid injection was performed 6 July 2017.
A CT scan brain dated 22 August 2017 showed no abnormality.
A plain X-ray skull dated 5 September 2017 had shown previous presumed craniotomy on the right side. No definite features of a recent skull fracture.
An MRI cervical spine dated 18 April 2018 had shown degenerate C5/6 disc manifest. There is loss of height and posterior fibro-osseous bar formation. No superimposed soft disc protrusion is identified. There is no cord compression and no significant foraminal stenosis.
A plain X-ray left shoulder dated 14 November 2018: Minor inferior spurring in keeping with mild degenerative arthrosis. There is moderate degenerative change at the supraspinatus insertion with a small subacromial spur at the acromion.
An ultrasound of the left shoulder dated 14 November 2018 had shown a full thickness supraspinatus tear and impingement.
An MRI of the cervical spine dated 5 July 2019 had shown C5/6 broad based slight left-sided disc protrusion causing moderate to severe central canal stenosis as well as mild right foraminal stenosis and moderate to severe left foraminal stenosis.
CLINICAL EXAMINATION
Ms Kozis was tearful and distressed at times, alluding to prior major depressive symptoms with prior suicidal ideation.
On examination of the neck, there was generalised tenderness. Flexion and extension one-third normal, lateral flexion half normal, rotation normal range. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were 33cm both arms, 27cm both forearms. There was normal power, sensation and reflexes bilaterally.
On examination of the shoulders, movements were as follows:
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 110 ° 70 ° Extension 50 ° 30 ° Internal Rotation 70 ° 60 ° External Rotation 90 ° 70 ° Abduction 100 ° 90 ° Adduction 50 ° 40 °
Movements at elbows and wrists were normal range bilaterally.
On examination of the lower back, flexion was one-third normal, extension one-third normal, lateral flexion half normal bilaterally, rotation half normal bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equal, thighs measuring 53cm, calves measuring 44cm. There was normal power, sensation and reflexes. Lower limb joint movements were normal range and symmetrical without any crepitus or instability.
CAUSATION
Ms Kozis was involved in the subject accident on 6 October 2016. There was contemporaneous evidence for injuries to the cervical and lumbar spine. She was examined by GP, Dr Barry Venter on 8 October 2016 and then again on 31 December 2016. He has recorded complaints in relation to neck, low back, left breast, right axilla, headaches, left knee and foot and both wrists.
However, there had been no mention of any shoulder complaint at either of these visits. Ms Kozis had pointed out that she had mentioned her shoulder in her statement. The statement was dated 23 April 2021, with a handwritten note dated 10 October 2016 referencing complaints of neck pain spreading to the shoulders. However, this does not provide evidence of a separate shoulder injury. And therefore, the surgery performed subsequently was not as a consequence of subject accident injury.
Left shoulder symptoms are reported to the claimant’s physiotherapist in approximately April 2017. Subsequent imaging demonstrated a supraspinatus tear which was surgically treated.
The Review Panel concludes, on the balance of probabilities, that the left shoulder injury by way of supraspinatus tear was not caused by the motor accident. It is most likely that had the motor accident given rise to such pathology, symptomatology would have resulted in the acute phase. There is an absence of contemporaneous complaint in respect of the left shoulder and therefore the Panel does not accept that the accident caused the left shoulder injury.
The Review Panel accepts on the evidence, and following examination, that the claimant suffered soft tissue injuries to her cervical and lumbar spine as a consequence of the motor accident.
TREATMENT DISPUTE FINDINGS
Causation
Whether the physical injuries give rise to a need for domestic assistance from the date of the motor accident to 12 December 2018 is casually related to the injury sustained in the motor accident
The Review Panel find that the injuries caused by the motor accident to the cervical and lumbar spine have caused the requirement for past domestic assistance from the date of the motor accident to 12 December 2018. Any requirement for domestic assistance arising any left shoulder injury has not been caused by the motor accident.
Whether the physical injuries give rise to a need for domestic assistance from 13 December 2018 to 23 January 2019 is casually related to the injury sustained in the motor accident
The Review Panel find that the injuries caused by the motor accident to the cervical and lumbar spine have caused the requirement for past domestic assistance from 13 December 2018 to January 2019. Any requirement for domestic assistance arising from any left shoulder injury has not been caused by the motor accident.
Whether the physical injuries give rise to a need for domestic assistance from 24 January 2019 to the date of this medical assessment is causally related to the injury sustained in the motor accident
The Review Panel find that the injuries caused by the motor accident to the cervical and lumbar spine have caused the requirement for past domestic assistance from 24 January 2024 to the date of this medical assessment. Any requirement for domestic assistance arising from any left shoulder injury has not been caused by the motor accident.
Whether the physical injuries give rise to a need for domestic assistance from the date of this medical assessment and ongoing for the remainder of the claimant’s life expectancy
(0-33 years and every year in between) is causally related to the injury sustained in the motor accident
The Review Panel find that the injuries caused by the motor accident to the cervical and lumbar spine have caused the requirement for past domestic assistance from the date of this medical assessment and ongoing for the remainder of the claimant’s life expectancy. Any requirement for domestic assistance arising from any left shoulder injury has not been caused by the motor accident.
Reasonable and necessary
Whether 0-13.5 hours per week of domestic assistance in relation to the physical injuries from the date of the subject motor vehicle accident to 12 December 2018 is reasonable and necessary in relation to the injury caused by the motor accident
The Review Panel refers this question back to the Medical Services of the Commission for assessment by an occupational therapist.
Whether 0-17 hours per week of domestic assistance in relation to the physical injuries from 13 December 2018 to 23 January 2019 is reasonable and necessary in relation to the injury caused by the motor accident
The Review Panel refers this question back to the Medical Services of the Commission for assessment by an occupational therapist.
Whether 0-7.15 hours per week of domestic assistance in relation to physical injuries from 24 January 2019 to the date of this medical assessment is reasonable and necessary in relation to the injury caused by the motor accident
The Review Panel refers this question back to the Medical Services of the Commission for assessment by an occupational therapist.
Whether 0-7.15 hours per week of domestic assistance in relation to the physical injuries from the date of this medical assessment and ongoing for the remainder of the claimant’s life expectancy (0-33 years and every year in between) is reasonable and necessary in relation to the injury caused by the motor accident.
The Review Panel refers this question back to the Medical Services of the Commission for assessment by an occupational therapist.
The occupational therapist is to assess the need for domestic assistance in respect of the cervical and lumbar spine injuries only. Any requirement for domestic assistance arising from any left shoulder injury is not to be included in any assessment.
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