Jankovic v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 682
•19 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Jankovic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 682 |
| CLAIMANT: | Biljana Jankovic |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 19 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was a front seat passenger in a vehicle involved in a rear-end collision; claimant alleged the traffic was slow and the speed was about 30 to 40 km/h when the vehicle was hit from behind; no airbags in the vehicle; claimant alleged a posterior annular tear and left C6 nerve root impingement at C5/6 to the cervical spine; a rotator cuff tendinosis of the left shoulder; left paracentral and paraforaminal disc protrusion; right shoulder subscapularis supraspinatus and infrasupraspinatus tendinosis and subacromial bursitis; posterior annulus tear to the thoracic spine and disc protrusion with compression at C6/7; Medical Assessor (MA) determined that combined whole person impairment (WPI) was 0%; referral to Review Panel; Panel determined that taking all the objective evidence, the claimant had sustained WPI of 5%; Held – certificate of MA revoked and replaced by Certificate of Determination of WPI at 5%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Panel: 1. Revokes the certificate of Medical Assessor Sally Preston of 15 December 2022. 2. Certifies that the permanent impairment arising from the injuries sustained in the accident gave rise to whole person impairment of 5%. |
STATEMENT OF REASONS
INTRODUCTION
These Reasons arise out of an Application for Review of a determination of Medical Assessor Sally Preston on 15 December 2022.
The following injuries were referred to Medical Assessor Preston for assessment of whole person impairment (WPI):
• cervical spine – posterior annulus tear and left C6 nerve root impingement at C5/6;
• left shoulder – rotator cuff tendinosis;
• left paracentral and paraforaminal disc protrusion at ‘L5/L5’ [sic] and lateral recess narrowing at L5 and facet joint arthropathy and ligamentum flavum thickening at L5/S1;
• right shoulder with subscapularis supraspinatus and infraspinatus tendinosis and subacromial bursitis, and
• thoracic spine – posterior annulus tear and disc protrusion with cord compression at T6/7.
The determination of Medical Assessor Preston was that the degree of impairment caused by the accident resulted in zero WPI.
Medical Assessor Preston found that the following injuries were not caused by the accident:
• left shoulder – rotator cuff tendinosis, and
• right shoulder – subscapularis supraspinatus and infraspinatus tendinosis and subacromial bursitis.
THE ACCIDENT
Medical Assessor Preston took a history of the accident. It occurred on 7 March 2018, when Biljana Jankovic (the claimant) was a front seat passenger. The claimant provided that the traffic was slow, and she estimated that the vehicle was traveling at around 30 to 40 kmph when it was hit from behind by another vehicle. There were no airbags fitted.
The claimant further told Medical Assessor Preston that she was jolted backwards and forwards. Neither police nor ambulance were called to the scene.
The claimant further stated that she went to see a general practitioner (GP) at Cabramatta the same day because she felt pain in her back and shoulders.
DETERMINATION OF MEDICAL ASSESSOR PRESTON OF 15 DECEMBER 2022
Medical Assessor Sally Preston examined the claimant on 13 December 2022 and provided her Certificate on 15 December 2023.
Medical Assessor Preston took a history of the claimant’s birth in February 1975 in Bosnia, and of coming to Australia in 2004. She had worked in retail in Bosnia but has not worked in Australia.
The claimant reported that she had no pre-existing “specific” spine pain. She had a fall down stairs in 2012/13 which led to some “problem with the back” – mainly low back. There was no pre-existing history of shoulder problems.
The claimant told Medical Assessor Preston that she had Multiple Sclerosis (MS) diagnosed in 2006, attends a neurologist in Camperdown, and has infusions given on a six-monthly basis. The MS symptoms mainly affect her face and tongue.
The claimant recounted to Medical Assessor Preston the history of the symptoms following the accident. Since seeing Dr Thomas Tjeuw at Cabramatta, she was complaining of pain in all of her back and shoulders. She was referred for X-rays and prescribed medication. Since the accident she has been under the care of Dr Pukanic, has had physiotherapy, and was prescribed Celebrex. She had corticosteroid injections to her shoulders which had provided temporary relief, and she was referred to a spinal surgeon, Dr Simon McKechnie.
Medical Assessor Preston set out the results of her clinical examination at [14]-[17]. With respect to the cervical spine, where the range of movement was restricted and reported as painful, she commented that upper-limb neurological examination was normal, that the claimant found it difficult to determine whether there was a sensory difference on either arm, but there was no evidence of a dermatomal sensory loss in either arm. Upper and forearm circumference was symmetrical.
With respect to the thoracic spine, Medical Assessor Preston commented that palpation was reported as extremely painful. There was no dysmetria, muscle spasm, or guarding.
On examination of the lumbar spine, the claimant reported extreme tenderness to palpation. There was no dysmetria, muscle spasm or guarding. Range of movement in flexion and extension was to one-third normal.
There was no wasting or asymmetry of the shoulder girdle. Shoulder movements were largely unassessable because of reported discomfort.
Medical Assessor Preston commented on consistency at [18]:
“Inconsistency on the examination was a marked feature of the assessment. This was particularly noted with respect to range of movement in the shoulders. When indicating the site of her lumbar back pain, she was able to internally rotate her left shoulder to 80 degrees and point to a lumbar level of approximately L1. On formal examination, Ms. Jancovic [sic] reported that she could not rotate her shoulders and had virtually no internal and external rotation at all. Range of movement in both shoulders was quite variable on repeat testing.”
Medical Assessor Preston brought the discrepancy between shoulder movement between examination and during the history taken to the attention of the claimant.
Medical Assessor Preston had available the material referred to at [19] including the claimant’s statement of June 2020, medico-legal reports of Dr Bentivoglio and Dr Mastroianni, the clinical notes of Dr McKechnie, and a letter from him of 20 July 2020.
Medical Assessor Preston also had available the materials set out on pages 7-9, including the radiological and medical imaging which the claimant brought to the examination, listed on page 9.
Medical Assessor Preston set out her diagnosis and reasons at [21], saying that the claimant does have underlying degenerative changes in her cervical spine, thoracic spine and lumbar spine. The symptoms reported in the spine following the accident were, most likely, an aggravation of pre-existing degenerative change, and it was not clear that she had sustained any specific spinal injuries in the accident.
With respect to the shoulders, Medical Assessor Preston determined that the injuries referred for assessment were all imaging findings rather than specific diagnoses. She does have subacromial bursitis and rotator-cuff pathology, without discrete tendon tear. Clinically, she did not have features of rotator-cuff pathology or subacromial bursitis. In particular, impingement signs were negative. Examination findings were marked by inconsistency and did not suggest there was a particular injury in either shoulder related to the accident. It was likely that the symptoms experienced in her shoulders were related to neck and upper-back pain.
Medical Assessor Preston found zero percent WPI of the three areas of the spine. She had no clinical findings, no guarding or muscle spasm, no documented neurological impairment, and no significant loss of integrity. She had no objective evidence of radiculopathy, no dysmetria, and no symptoms suggestive of non-verifiable radicular complaints, which would place her in a higher impairment category.
Further, although the claimant clinically did have restricted movement in both shoulders which would normally be assessable per Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351, given the variability and inconsistency noted, the additional assessment was zero percent for each shoulder.
THE PANEL’S EXAMINATION OF THE CLAIMANT
On 27 September 2023, Medical Assessor Dixon and Berry examined the claimant with the assistance of an interpreter of the Serbian language.
The claimant entered the consultation room using a walking stick with a limp on the left side. She tended to walk with her back flexed forward and reported this was a comfortable position for her while being ambulant. She was 165cm tall and weighed 83kg.
She had a symmetrical range of motion of her cervical spine with flexion and extension decreased by one third and lateral rotation decreased by one quarter bilaterally and lateral flexion decreased by one third bilateral associated with some pain in the upper trapezius muscles. There was no neurological deficit in either upper limb. Her reflexes were symmetrical and there was no gross wasting. Her thenar power, intrinsic power, and grip strength was grade 5 out of 5 and there were no objective sensory changes.
There was stiffness of her thoracic spine with trunk rotation decreased by one quarter associated with interscapular pain and mild tenderness at the interscapular rea of the thoracic spine but no spasm and no neurological deficit on the trunk wall.
In the lumbar spine, there was stiffness of her lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm on the left with pain on back extension which was decreased by one half and lateral flexion to the left by one half and that to the right by one third. Her straight leg raise was 60 degrees bilaterally while sitting. Her reflexes were symmetrical, and her Babinski signs were negative. She did have sensory alteration in the lateral leg and sole of the foot consistent with an L5/S1 distribution. Her sciatic nerve root stretch tests were equivocal. She had 1cm of wasting of her left leg below the knee, 42cm on the left and 43cm on the right and there was no wasting of either thigh, 10cm above the upper pole of the patella measuring 53cm bilaterally.
The claimant brought imaging studies with her, and these included an MRI of the whole spine on 16 March 2018 and a later MRI of the whole spine on 14 June 2020
Panel’s summary
The claimant has had neck and back strain injuries in the subject motor vehicle accident on a background of MS over the years with some cord plaques in the cervical spine and evidence of extensive cervical and thoracic cord demyelination, consistent with MS.
The Panel determined the claimant’s WPI as follows:
• That for the cervical spine is Diagnosis-Related Estimate (DRE) I, 0% WPI from Table 73, Page 110, American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA IV).
• That for the thoracic spine is DRE I, 0% WPI from Table 74, Page 111, AMA IV.
• That for the lumbar spine is DRE II, 5% WPI from Table 72, Page 110, AMA IV.
This gives a total impairment of 5% WPI.
THE EVIDENCE
Clinical notes of Dr Thomas Tjeuw, GP
Dr Tjeuw, the claimant’s GP, examined the claimant on 7 March 2018, the day of the accident, and reported:
“c/o back pain along the back
c/o pain all back – from neck down to buttocks
sore ant. chest.
…
Very tender generally along the spine
even [with] light touch”
Dr Tjeuw referred the claimant for an MRI.
On 13 March 2023, the claimant attended the rooms of Dr Tjeuw again. Dr Tjeuw recorded:
“c/o pain ant. chest
Pain all back from neck (R. side) à lower back
c/o very heavy back
can’t straighten back when standing/walking
tender along the spine [on] palpation
no muscle spasm
…
Tender over sternum
no bruising”
Dr Tjeuw prescribed medication for pain relief.
Dr Tjeuw examined the claimant again on 20 March 2018 and recorded the claimant’s symptoms:
“pain + numbness from him to feet (L) leg
c/o pain all back from neck to lower back
has pain standing up from lower back up to chest area
…
Generally tender over back.”
Dr Tjeuw commented on the MRI report of 16 March 2018:
“MRI
C spine = no sig findings no NR impingement
T spine = mild degen changes no NR impingement
L/s spine = L5/S1 disc protrusion – no impingement, L4/5 (L) sided disc protrusion contacting left L4 NR
[Dr Tjeuw’s emphasis]”
Report of Dr Simon McKechnie, treating neurosurgeon, of 22 August 2018
Dr McKechnie examined the claimant with the assistance of an interpreter on 25 July 2018 and reported to the claimant’s GP, Dr Mike Pukanic, on 22 August 2018.
Dr McKechnie recorded the claimant’s symptoms following the accident:
“Following the accident she has complained of persistent neck pain radiating across both shoulders and arms, worse on the right side. She also complains of midthoracic and lower back pain. There has been no improvement with physiotherapy, Nurofen and Panadol.”
On examination of the diagnostic imaging, Dr McKechnie commented:
“A whole spine MRI demonstrates small C5/6, T6/7, L4/5 and L5/S1 disc protrusions. There is no significant thecal sac or nerve root impingement.”
With respect to treatment, Dr McKechnie recommended:
“…nonoperative treatment at this time. She should continue with core strengthening exercises and avoid heavy work and lifting. I have given her prescription to try Celebrex instead of the Nurofen, but I have explained the small risk of side effects. She could proceed with an injection into the right shoulder if she wishes.”
Medico legal expert opinion
Report of Dr John Bentivoglio, orthopaedic surgeon, of 13 July 2021
Dr Bentivoglio examined the claimant on 23 June 2021 and provided a report on 13 July 2021.
He recorded his findings on examination on page 5:
“Back
She demonstrated about two thirds normal range of movement present in her lumbar spine. She had straight leg raising limited by back pain to about 10° in both lower limbs. There was no muscle wasting present in her calves. She was just capable of walking on her heels and on her toes. There were no localising motor sensory or reflex abnormalities that I could detect in her lower limbs. She was capable of sitting upright on the examining couch with her lower limbs extended. Her toes appeared to be equivocally down going.
Neck
There was no paravertebral muscle spasm present. She demonstrated about two thirds normal range of movement present in her cervical spine. There was no muscle wasting present in her forearms. There were no localising motor sensory or reflex abnormalities that I could detect in her upper limbs.
Thoracic Spine
Her abdominal reflexes were intact. She did not have a rib hump present. She demonstrated about two thirds normal range of movement present in her thoracic spine.
Shoulders
She had normal alignment present in both shoulders. With her left shoulder, she had flexion to 100°, extension 25°, abduction 95°, adduction 35°, abducted external rotation 60°, abducted internal rotation 50°. With the right shoulder, she had flexion to 100°, extension 25°, abduction 90°, adduction 50°, abducted external rotation 60°, abducted internal rotation 40°.”
Dr Bentivoglio reviewed the diagnostic investigations including the MRI of 16 March 2018, and the later MRI of 14 June 2020.
Dr Bentivoglio provided his diagnosis and reasons on page 7:
“…on today’s physical examination, there is no evidence of any nerve root irritation or compression to suggest she would benefit from aggressive modalities of treatment for her neck and back complaints. I do not believe this lady sustained a fracture of the T7 vertebral body as the original MRI scan did not report this as being the case. The initial MRI scan taken of her cervical spine only showed evidence of discal damage at the C5/6 level of her cervical spine. MRI scan taken of her lumbar spine initially showed evidence of some degree of discal damage at the L4/5 and L5/S1 levels. It is unusual as there is very limited range of movement present in the thoracic spine for a person to sustain any discal damage and, as such, I would consider the minor abnormalities seen at the T6/7 level is not contributing to any of her symptoms.
With respect to the claimant’s shoulder injuries, Dr Bentivoglio concluded:
“With regard to her shoulders, her rotator cuff tendons are intact. She does have evidence of some degree of subacromial bursitis present in her shoulders, which I would normally expect would respond to CT-guided cortisone injections. The abnormalities seen in her shoulders would not explain the gross lack of movement she has in her shoulders. I would have to consider, therefore, that her multiple sclerosis is accounting for a significant proportion of the lack of movement present in her shoulders.”
Report of Dr Tommasino Mastroianni, consultant occupational physician, of 31 July 2019
Dr Mastroianni examined the claimant, assisted by an interpreter, on 31 July 2019 and provided a report the same day.
On examination, Dr Mastroianni recorded:
“She has difficulty walking on heels and toes and partially squats complaining of increased back pain. She prefers to stand slightly stooped saying that it is more comfortable and as she tries to extend her back, she complains of increased lower back pain.
I found no muscle guarding or muscle tenderness in the neck or thoracolumbar spine.
There was tenderness in the cervical spine, generalised discomfort in the thoracic spine and marked tenderness in the lower lumbar segments.
Neck and back movements were restricted.
Both shoulders were tender anteriorly and both shoulders were restricted.
Reflexes in both the upper and lower limbs was normal and symmetrical (biceps, triceps and supinator jerks, knee, ankle and hamstring jerks).
She has a normal grip.
She gets on and off the couch without difficulty.
Examination of the lower limbs reveals normal power and normal sensation.
Straight leg raise supine was 20°. Straight leg raise was 70° sitting. Nerve root tension signs negative.”
Dr Mastroianni considered that:
“[The claimant] sustained injury to the neck, back and shoulders in the motor vehicle accident described and injuries are not inconsistent with a rear end collision.
Clinically there is no evidence of radiculopathy affecting either the upper or the lower limbs.
Radiological investigations reveal intact rotator cuffs and tendonitis.
She has tiny disc protrusion in the cervical spine.
In the lumbar spine there is right posterolateral disc protrusion at L5-S1 and moderate sized disc protrusion at L4-5 contacting the exiting left L4 nerve root.”
He diagnosed:
“…whiplash associated disorder of the cervical spine, bilateral shoulder tendonitis and lumbar disc protrusion without radiculopathy.”
He considered that the injury was caused by the accident and was a non-threshold injury:
“…per Section 1.6 of the Act, the injury in my opinion does not satisfy the definition of soft tissue injury. It is not a minor injury as a disc protrusion involves rupture of fibrocartilaginous material (the disc) and as per Section 1.6 complete or partial rupture of tendons, ligaments, menisci or cartilage is not a minor injury.”
SUBMISSIONS
Claimant’s submissions of 30 January 2023
The Panel reproduces the relevant parts of the submissions:
“26. The certificate dated 15 December 2022 relates to an assessment of injuries to the Claimant’s cervical spine, thoracic spine, and lumbar spine. The PIC medical assessor conducted an assessment of the injuries to the Claimant’s cervical spine, thoracic spine and lumbar spine. The PIC medical assessor did record the active range of motion of the Claimant’s cervical spine and made a reference to a percentage of the range of motion. In relation to the lumbar spine, the assessor noted that range of movement in flexion and extension to what was one third normal range with minimal lateral flexion. It is unclear as to what the reference to minimal lateral flexion in fact means and that in itself may well give rise to there being dysmetria and it may well be that the PIC medical assessment certificate is incorrect in a material respect.
27. In relation to the assessment of the injury to the Claimant’s left shoulder and right shoulder, the PIC medical assessor found that:-
27.1 ‘with respect to the shoulders, the injuries referred for assessment are all imaging findings rather then specific diagnosis. She does have subacromial bursitis and rotator cuff pathology without discreet tendon tear. Clinically, she does not have features of rotator cuff pathology or subacromial bursitis. In particular, impingement signs are negative. Examination findings are marked by inconsistency and do not suggest that the there is a specific injury in either shoulder related to the motor vehicle accident of March 2018. It is likely symptoms experienced in the shoulder are related to neck and upper back pain. (claimant’s solicitor’s emphasis)’
28. The assessor further noted on page 11 within paragraph 2 that ‘she does have restricted movement in both shoulders. This would normally be assessable as per Nguyen. Given the variability and inconsistency noted, the additional assessment is 0% for each shoulder.’ (claimant’s solicitor’s emphasis).
29. With greater respect, there are two clear-cut incontrovertible and glaring errors which render the Certificate incorrect in a material respect:
•Firstly, on page 1 and also within paragraph 26 on page 10, the PIC medical assessor has failed to find that the injuries to the left shoulder and right shoulder are causally related to the subject accident and whilst she assesses a notional 0% whole person impairment, they should be included in the respective tables on page 1 and on page 10 at paragraph 26.
•Secondly, the PIC medical assessor has failed to modify her assessment of whole person impairment in accordance with Huni. The assessor found that the injuries to the left shoulder and right shoulder were causally related to the subject accident. It is submitted that the finding of ‘it is likely symptoms experienced in the shoulders are related to neck and upper back pain’ means that on the balance of probabilities, the injuries are causally related to the subject accident and as the assessor correctly noted on page 11 at paragraph 2, assessable pursuant to Nguyen.
30. It is submitted that Huni is clearly on point and the assessor failed to modify her assessment of whole person impairment in accordance with Huni.
30.1 In Huni v Allianz Australia Insurance Limited [2014] NSWSC1584 (14 November 2014), Garling J noted that:
‘78. What the medical assessor was required to do was to make a clinical judgment about the degree of permanent impairment of the whole person. There was an impairment in the plaintiff's left shoulder. So much is obvious from the medical reports and the medical history with which the medical assessor was provided. As well, the existence of such impairment was also obvious on clinical examination because there was, during each examination of the range of movement, a diminution in the range of movement and not to an insignificant extent’.
30.2 Garling J then further noted at paragraph 80 that:
‘80. In short, the medical assessor is not excused from proceeding to make any assessment of the impairment. In assessing that impairment, the medical assessor, by the application of the entire gamut of her clinical skill and judgment and by reference to history, examination and all other relevant facts, matters and circumstances, is obliged to reach a conclusion’.”
Insurer’s reply submissions of 16 February 2023
The Panel reproduces the relevant parts of the submissions:
“Alleged Error 1: Assessor incorrectly recorded her findings in relation to the cervical and lumbar spine
6. The Claimant refers to Assessor Preston's findings under sections 14 and 16 and alleges that:
(a) Assessor Preston incorrectly recorded percentages of the range of motion in the cervical spine;
(b) Assessor Preston recorded impaired ranges of motion in the lumbar spine and thus failed to diagnose dysmetria.
7. The Insurer refers to table 6.8 of the Motor Accident Guidelines ('MAGs') and highlights that under the definition for 'Non-uniform loss of spinal motion (dysmetria)', the MAGs state that: ‘… Medical assessors must record the range of spinal motion as a fraction or percentage of the normal range, such as cervical flexion is 3/4 or 75% of the normal range’ (insurer’s emphasis)
8. The Insurer submits that based on the above, Assessor Preston's has not erred by recording the Claimant's ranges of motion as a percentage.
9. The Insurer further refers to Assessor Preston's comments under section 18 of the Certificate: 'Inconsistency on the examination was a marked feature of the assessment. This was particularly noted with respect to range of movement in the shoulders. When indicating the site of her lumbar back pain, she was able to internally rotate her left shoulder to 80 degrees and point to a lumbar level of approximately L1. On formal examination, Ms. Jancovic reported that she could not rotate her shoulders and had virtually no internal and external rotation at all. Range of movement in both shoulders was quite variable on repeat testing.’ (insurer’s emphasis)
10. Assessor Preston's comments above demonstrate that the findings obtained upon examination were largely inconsistent. This sentiment is expressed throughout the Certificate, primarily under section 21 where Assessor Preston stated that: ‘Symptoms reported in the spine following the motor vehicle accident are most likely an aggravation of pre-existing degenerative change. It is not clear that she has sustained any specific spinal injuries in the motor vehicle accident in question.’ (insurer’s emphasis)
11. The Claimant alleges that Assessor Preston's failed to identify dysmetria based on her findings of impaired range of motion in the lumbar spine.
12. The Insurer again refers to table 6.8 of the Motor Accident Guidelines ('MAGs') and highlights that under the definition for 'Non-uniform loss of spinal motion (dysmetria)', the MAGs state that: ‘To qualify as true non-uniform loss of motion, the finding must be reproducible and consistent, and the medical assessor must be convinced that the individual is cooperative and giving full effort.’ (insurer’s emphasis)
13. Assessor Preston, in her assessment of the lumbar spine under section 15, reported that: ‘There was no dysmetria and no muscle spasm or guarding. Range of movement was to one third normal in flexion and extension but she reported being unable to rotate the spine in either direction and lateral flexion was only to a few degrees bilaterally.’ (insurer’s emphasis)
14. Based on the above, the Insurer submits that Assessor Preston's conclusion that the Claimant had no dysmetria in the lumbar spine are substantiated by:
(a) Her findings being marked by inconsistency in presentation, which is heavily documented in the Certificate; and
(b) Her observation of no dysmetria, muscle spasm, or guarding as reported under section 15 of the Certificate.
15. Accordingly, the Insurer submits that Assessor Preston was correct in her findings relating to the lumbar spine and there is no material error as alleged by the Claimant. Alleged Error 2: Failure to use correct approach to assess impairment in the Claimant's left and right shoulder.
16. The Claimant alleges that Assessor Preston failed to use the correct approach to assess impairment in the Claimant's shoulders on account of two allegedly contradictory findings made by Assessor Preston:
(a) section 21, page 9: ‘With respect to the shoulders, the injuries referred for assessment are all imaging findings rather than specific diagnoses. She does have subacromial bursitis and rotator cuff pathology without discreet tendon tear. Clinically, she does not have features of rotator cuff pathology or subacromial bursitis. In particular, impingement signs are negative. Examination findings are marked by inconsistency and do not suggest that there is a specific injury in either shoulder related to the motor vehicle accident of March 2018. It is likely symptoms experienced in the shoulders are related to neck and upper back pain.’ (as emphasised in the claimant's submissions)
(b) Section 26, page 11: ‘She does have restricted movement in both shoulders. This would normally be assessable as per Nguyen. Given the variability and inconsistency noted, the additional assessment is 0% for each shoulder.’ (as emphasised in the claimant's submissions)
17. The Claimant argues that the above demonstrates ‘two clear-cut incontrovertible and glaring errors which render the Certificate incorrect in a material aspect’.
18. The Insurer submits that the Claimant's submissions are incorrect as they fail to consider the context in which Assessor Preston reported her findings of the Claimant's shoulders. The Insurer reproduces Assessor Preston's comments under section 18 of the Certificate regarding inconsistency: ‘Inconsistency on the examination was a marked feature of the assessment. This was particularly noted with respect to range of movement in the shoulders. When indicating the site of her lumbar back pain, she was able to internally rotate her left shoulder to 80 degrees and point to a lumbar level of approximately L1. On formal examination, Ms. Jancovic reported that she could not rotate her shoulders and had virtually no internal and external rotation at all. Range of movement in both shoulders was quite variable on repeat testing.’ (insurer’s emphasis)
19. The Insurer highlights that this sentiment is expressed multiple times throughout the Certificate, notably on:
(a) Section 26, page 11: ‘She does have restricted movement in both shoulders. This would normally be assessable as per Nguyen. Given the variability and inconsistency noted, the additional assessment is 0% for each shoulder.’ (insurer’s emphasis)
(b) Section 21, page 11: ‘…Examination findings are marked by inconsistency and do not suggest that there is a specific injury in either shoulder related to the motor vehicle accident of March 2018.
It is likely symptoms experienced in the shoulders are related to neck and upper back pain." (insurer’s emphasis)
20. Based on the above, it is submitted that when considering the context of Assessor Preston's findings, namely that the Claimant's presentation was marked by significant inconsistency, the Assessor Preston's findings of no attributable impairment to the shoulders is correct and is not affected by any material error.
21. The Assessor has exercised her clinical judgement and has provided a clear path of reasoning as to why she assessed the Claimant's injuries to attract no permanent impairment.
22. The Claimant's submissions lack substance and clearly depict a Claimant who is dissatisfied with the Assessor’s determination.
23. This dissatisfaction in itself does not mean that there is material error present. Furthermore, the Claimant has failed to demonstrate and satisfy the requirements of a material error.”
LEGISLATIVE FRAMEWORK
CAUSATION
Guidelines
With respect to causation, the Motor Accident Injuries Guidelines 2018 (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
PANEL’S CONCLUSION
The Panel does not agree with the findings of Medical Assessor Preston, that there was no objective evidence of injury to the claimant’s spine in the motor vehicle accident. The Panel was able to compare the MRI of the whole spine of 16 March 2018, and the later MRI of the whole spine on 14 June 2020.
The earlier MRI showed a:
“…tiny posterior midline disc protrusion but no neural impingement and the spinal cord was normal. In the thoracic spine there was a T6/7 midline disc protrusion contacting the cord but no neural impingement. The thoracic spinal cord was normal. In the lumbar spine there was a small right posterolateral disc protrusion extending into the right exit foramen with degenerative change and with L4/5 there was a moderate sized left foraminal disc protrusion which contacted the left exiting L4 nerve root [but] (Panel’s parentheses) … There was no neural compression.”
By comparison, the later MRI of 14 June 2020:
“…showed a C5/6 posterior annular tear and mild disc bulge and multiple cord plaques documented with some cord swelling at C3/4 (these appear related to her MS which she has had treatment for many years). In the thoracic spine there was an annular tear and disc protrusion at T6/7 and similar changes at T7/8. In the lumbar spine there was L4/5 facet arthropathy and left paracentral ad para foraminal disc protrusion and foraminal narrowing on the left without L4 nerve root compression. There was lateral recess narrowing and the radiologist thought there was irritation of the left L5 nerve root in the lateral recess. There was a low-grade disc bulge at L5/S1 with bilateral facet arthropathy.”
The Panel determined that the certificate of Medical Assessor Preston should be set aside, and, in substitution, it determined that the claimant’s WPI, as a result of the accident, is as follows:
• cervical spine – DRE I, 0% WPI from Table 73, Page 110, AMA IV.
• thoracic spine – DRE I, 0% WPI from Table 74, Page 111, AMA IV.
• lumbar spine – DRE II, 5% WPI from Table 72, Page 110, AMA IV.
giving a total impairment of 5% WPI.
0
3
0