Johnson-Droscher v Allianz Australia Insurance Limited
[2024] NSWPICMP 146
•12 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Johnson-Droscher v Allianz Australia Insurance Limited [2024] NSWPICMP 146 |
| CLAIMANT: | Nicole Johnson–Droscher |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence O'Riain |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Wing Chan |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) assessment review under section 63; original Medical Assessor Truskett further assessment 0%; claimant was a passenger in rear end collision in January 2016; causation; 2014 accident with complete recovery; multiple assessments on permanent impairment; re-examined; claimant in 2022 accident; Held – 2022 accident would not impact how 2016 accident permanent impairment would rate; impairment in both shoulders and digestive system 6%; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd considered; WPI less than 10%; previous impairment certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent impairment The Panel revokes the certificate dated 23 October 2022 and issues a new certificate. · cervical spine; · thoracic spine; · lumbar spine; · right shoulder; · left shoulder; · lower digestive tract, and · upper digestive tract |
REASONS
BACKGROUND
Ms Nicole Johnson-Droscher (the claimant) was a rear-seat passenger in a Toyota Aurion on 14 January 2016.
The insured vehicle suddenly struck her vehicle from behind and [BG1] pushed it forward into the vehicle in front. Her vehicle was written off.
In addition, there was a 2014 motor vehicle accident that caused the claimant a low back injury. She had totally recovered from that injury. There was a 2022 accident, which is addressed below.
There have been a series of disputes in this claim between the insurer and the claimant about the permanent impairment rating. The Commission and the preceding entities have convened earlier medical assessments and review panels.
The claimant applied for Review under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) to review Medical Assessor Phillip Truskett’s further assessment dated 23 October 2022.
The President of the Personal Injury Commission (Commission) constituted this Review Panel (the Panel) on 21 December 2022.
Medical Assessor Truskett assessed that the 2016 accident caused injuries that inflicted permanent impairment on the claimant that he rated as 0%.
The President’s delegate referred the medical assessment to the Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the application’s particulars.[1]
[1] Section 63(2B) of the MAC Act.
The Commission has arranged for the Panel to assess:
· cervical spine;
· thoracic spine;
· lumbar spine;
· right shoulder;
· left shoulder, and
· upper and lower digestive systems.
STATUTORY PROVISIONS
The statutory and the Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Assessor’s findings
These are set out in Appendix B
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 24 March 2023 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided re-examining the claimant was required so Medical Assessor Gibson examined Ms Johnson-Droscher on behalf of the Panel on 29 September 2023.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Clinical examination
Ms Johnson-Droscher attended at Medical Assessor Gibson’s rooms as arranged. She was unaccompanied and had driven from Smithfield to be there.
Past medical history
There had been a motor vehicle accident in 2014 when she sustained a low back injury. She said that following this accident she had physiotherapy for six months, but there was no medication prescribed. She made a total recovery. She said her L4/5 disc was injured; however, CT scan lumbar spine of 8 April 2014 had shown L5/S1 central disc protrusion extending posteriorly and indenting the anterior aspect of the thecal sac without nerve root compression.
There was no other history of accident or injury referred to Medical Assessor Gibson.
Ms Johnson-Droscher uses Ventolin and Symbicort inhalers for asthma. She had polycystic ovary symptoms but has not received any specific treatment.
Family and social history
Ms Johnson-Droscher lives with her ex-partner and her three children, aged 6 months,
4 years and 6 years, in a three-bedroom house in Dundas. She said they have been living there for over a month. They were previously living in her brother's unit in Parramatta.She said that her ex-partner is helpful "when he wants to be." He does the vacuuming and mopping. She said her mother helps with childcare and that, apart from her ex-partner, she is her only real support. She and her partner share the dishwashing although she finds if she stands at the bench too long her low back pain becomes worse.
Ms Johnson-Droscher said that she would load the washing machine and dryer. She said she can do a little bit more if she takes the medication. The children have now been showering themselves which takes that task from her and her ex-partner.
She said one of children has a provisional diagnosis of ADHD.
History of the subject accident
Ms Johnson-Droscher had been seated behind her ex-partner in a Toyota Aurion, which was a model produced between 2006 and 2017. Her mother-in-law was seated beside her and her brother-in-law in the front seat.
She said they were travelling home from Wollongong after a day at the beach. They were driving along Elizabeth Drive to Green Valley. They had slowed in traffic at a red light when they were hit from behind by another vehicle and pushed forward into the car in front.
She did not strike her head or lose consciousness. She was able to get out of the car by herself. The car was towed and later written off.
She said at the time she was "aching a bit" but she was also feeling quite shocked. She recalls having had a sharp pain across the front of her chest.
Police and ambulance arrived. Her mother-in-law was transferred to hospital.
Ms Johnson-Droscher said the paramedics advised her to go to the hospital too, but she declined to do that.A friend of her husband drove her home. She said she then slept till the next evening. She visited her general practitioner (GP) the following day when she saw Dr Dachuan Guo at the Parramatta Medical Centre. He had recorded that she was complaining of pain in her neck, back and both shoulders, abdomen, and chest. He noted that her shoulder movements were normal. The abdomen was unremarkable.
Several days later she had attended a different doctor, Dr Hua at Kenyon Street Medical Centre in Fairfield. She said she was somewhat dissatisfied with Dr Guo and this practice was closer to home.
Dr Hua later noted in April 2016 there was exacerbated low back pain. When Medical Assessor Gibson asked her about this, she could not recall this exacerbation and certainly not any specific cause.
She was later referred to Dr Balsam Darwish, a neurosurgeon. He had examined her 8 February 2018 and noted "the next day she developed back pain radiating to both lower limbs, more on the right side, and neck pain and stiffness. She had physiotherapy without improvement." On examination, he found she had a normal gait, straight leg raises 80 degrees bilaterally, neurotension signs negative and normal neurology both lower limbs. He commented upon a CT scan of lumbosacral spine of 3 August 2017 which had reported right L5/S1 disc protrusion compressing right S1 nerve roots. On 12 June 2018, the GP noted that the MRI scan of lumbosacral spine 11 May 2018 had shown L5/S1 disc dehydration and annular tear but no nerve root compression. He prescribed Panadeine Forte and Mobic.
Ms Johnson-Droscher said that she had ten free sessions of physiotherapy per year, presumably through Medicare, although she paid for some herself. She had visited an exercise physiologist on five occasions, again under Medicare. She said she ceased these treatments when she fell pregnant. She had a few sessions of acupuncture but could not afford to continue. She was referred to psychologist Teresa in Fairfield and had seen a psychiatrist on at least one occasion and was prescribed duloxetine.
She confirmed that about a year after the accident she started to develop constipation and reflux symptoms. She was referred to a gastroenterologist at Campbelltown Hospital, Dr Sam Al-Sohaily and she had a colonoscopy and endoscopy at Campbelltown Hospital. There is a note the colonoscopy was unsuccessful due to inadequate preparation. This was apparent when the Panel examined those test scans.
Current treatment
Ms Johnson-Droscher now visits her GP, Dr Victor Hoang. She said he had recently changed her from OxyContin 30mg a day to OxyNorm 20mg two tablets twice daily. She continues to take duloxetine 60mg. She said there was some move to reduce to 30mg, but this was unsuccessful. She also takes iron and vitamin D supplements and ondansetron for nausea and vomiting. She also takes a medication for the reflux symptoms, possibly Somac.
She said the narcotic analgesics were commenced not long after the accident, initially Panadeine Forte. She had then taken tramadol and then Targin and then OxyContin. She said she had Endone "here and there."
Current complaints
Ms Johnson-Droscher described paracentral neck pain extending to the trapezius regions, which is present some of the time.
She said there is sometimes pain extending over the inner aspect of both arms to both the index and two lateral fingers. There is pain across the low back extending to both buttocks, also pain extending over the inner thigh as far as the feet, pins, and needles in both legs if she sits down for longer periods involving both legs globally.
There is pain across the top of both shoulders. She finds she frequently must sit up when in bed at night due to burning epigastric pain and acid reflux. She said the reflux was worse when she was pregnant. She was unsure of any specific foods that precipitate the symptoms.
She said she is constipated and could only open her bowels about once a week and there is episodic diarrhoea and occasional sharp pains in the abdomen.
Physical examination
Ms Johnson-Droscher was 169cm tall and weighed 52kg (BMI 18.2 underweight). She had a wasted appearance. She was teary. Her speech was soft, and she avoided eye contact. She had a cough due to a combination likely of bronchitis and asthma. She says she smokes approximately 20 cigarettes per day.
When Medical Assessor Gibson examined the claimant’s abdomen, she did not detect any abnormalities.
She had a normal gait and could walk on heels and toes. She could squat to half normal, complaining of pain in back and knees.
Medical Assessor Gibson examined the neck, and there was tenderness in the midline and paracentrally and over the trapezius regions bilaterally. Flexion and extension were ¾ normal range, rotation was to ¾ normal range bilaterally and lateral flexion was normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, so there was no asymmetrical muscle wasting. There was normal power, sensation, and reflexes.
On examination of both shoulders, the movements varied on repetition. The Medical Assessor used a goniometer to measure the ROM.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° 90° | 90° 60° |
| Extension | 60° 40° | 40° 30° |
| Internal Rotation | 90° 80° | 90° 70° |
| External Rotation | 90° 70° | 90° 80° |
| Abduction | 110° 90° | 90° 80° |
| Adduction | 20° 50° | 0° 40° |
When asked about the variability, she said that the pain had increased and so her movements had decreased. She added that the shoulder pain worsens with activity. She said that she had not taken her usual amount of medication today as she was coming in for the assessment.
On examining the claimant’s back, the Medical Assessor found it was tender in the midline, over the lower thoracic spine and lower lumbar region. Flexion and extension were three-quarters normal, lateral flexion three-quarters normal and rotation three-quarters normal. There was no muscle spasm or guarding, and no asymmetry of movements in relation to either thoracic or lumbar spines.
On examination of the lower limbs, circumferential measurements were equal, and there was no asymmetrical muscle wasting. There was normal power, sensation, and reflexes.
IMPAIRMENT ASSESSMENT
Shoulders
The Panel examination had revealed variability in range of motion of both shoulders when measured with a goniometer.
The Guidelines clause 1.50 states that “Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed.” And at 1.50.5 “If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel considered all the available documentation. They noted that her GP examined
Ms Johnson-Droscher on 15 January 2016 and he noted the car accident two days previously and “…now painful - back/neck/shoulders/abdo/chest...” On examination midline tenderness of spine, with reduced lumbar flexion and on examination of both shoulders she was “...tender on area between shoulders and neck...”. However, shoulder movements were normal range. There was no swelling and no bruising. He had referred her for imaging of her neck and back, but no other imaging was recommended.There was no evidence of any direct injury to either shoulder, but there was a suggestion of referred pain from the neck to the shoulder girdles bilaterally.
She then has no imaging of either shoulder in the period since the subject accident, now in the vicinity of about seven years.
There were multiple medicolegal reports in the years after the subject accident that recorded her shoulder movements were normal.
Dr Sikander Khan (29 March 2017), qualified by Ms Johnson-Droscher’s legal representative, had noted in relation to the shoulders that “The pains from the back radiate to both shoulders and along the inside of her arms.” On examination “… normal contours with no rotator cuff wasting and normal acromioclavicular joints. Movements of both shoulders were of normal range although painful at the extremes of abduction and internal rotation.”
There was no defined diagnosis of specific shoulder pathology.
The Panel accepted there were shoulder pain complaints but were of the view these were more than likely related to the neck, rather than there being any primary subject accident-related shoulder pathology. In the alternative, had there been a soft tissue injury to the shoulders due to the subject accident, given the clinical records, this would have been of a minor nature.
Either way, the Medical Assessor could not use the goniometer measurements because of the variability. The Panel exercised clinical acumen to assess the impairment and found that any soft tissue injury to shoulders due to the accident or limitation secondary to the neck would not produce an impairment of greater than 2 % in either shoulder. This assessment is in line with the Nguyen principles[2].
[2] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351
Cervical [Cervicothoracic] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. The Panel did not detect the clinical findings listed in the Guidelines. Referring to the Guidelines the Panel assesses the cervical spine injury at DRE Impairment Category I, being 0% permanent impairment.
Lumbar [Lumbosacral] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. The Panel did not detect the clinical findings listed in the Guidelines. Referring to the Guidelines the Panel assesses the lumbar spine injury at DRE Impairment Category I, being zero per cent permanent impairment.
Thoracic [Thoracolumbar] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. The Panel did not detect the clinical findings listed in the Guidelines. Referring to the Guidelines the Panel assesses the thoracic spine injury at DRE Impairment Category I, being zero percent permanent impairment.
Digestive system
Medical Assessor Gibson is qualified to assess permanent impairment in the digestive tract. The Panel noted the claimant used anti-inflammatory agents continually after the subject accident, and before she underwent the endoscopy. There was endoscopic evidence of chronic gastritis. This would fulfill the criteria at AMA4 Chapter 10, Table 2 for Class 1 impairment. The Guidelines clause 1.247 state “Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides).”
The Panel used the higher end of the range and assessed 2% WPI.
In relation to the constipation (lower digestive tract) episodic pain and diarrhoea and the normal colonoscopy. This sentence does not make sense The Panel noted that s1.248 states “Colonic and/or rectal disease caused by the use of opiate medication must be assessed as 0-2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Assessment of constipation alone results in 0% WPI.”
The Panel concluded that there was 0% WPI in the lower digestive tract.
The Panel assessed the subject accident caused injuries that resulted in six per cent permanent impairment.
The permanent impairment table is set out at Appendix E.
Panel deliberations
The Panel met again on 30 October 2023.
The Panel decided to adopt Medical Assessor Gibson’s examination report and her impairment assessment as evidence. This report is set out at Appendix E.
There were no pre-existing impairments to deduct.
The Panel discussed whether the claimant was consistent in her presentation.
Medical Assessor Gibson confirmed that she asked the claimant about how her presentation varied while testing the variable shoulder movements. The claimant answered that the pain had increased and therefore her movements had decreased. She also added that the shoulder pain worsens with activity. She told Medical Assessor Gibson that she had not taken her usual amount of medication that day as she was coming in for the assessment.
There were no other examples of inconsistencies.
The insurer provided Dr Sethi’s report dated 22 June 2022 in response to the Panel’s inquiry about the claimant’s injury to the digestive system.
On 25 October 2023 the Panel sent an inquiry via the portal to confirm whether there was any evidence apart from Dr Berry's report dated 3 March 2022 that support the claimant’s digestive system permanent impairment condition.
The Panel referred to the directions made in a report on 28 March 2023, which asked the parties among other things for submissions on re-examination.
There had been no further submissions apart from the review application submissions. It appeared the only evidence was in Dr Berry's report, which speaks of her condition as being unresolved.
At the time of the 30 October 2023 meeting the Panel did not have access to the claimant’s submissions in response to the inquiry on 25 October 2023. These were submitted to the Panel via the portal on 31 October 2023.
The Panel also found at that time a GP’s clinical note which referred to a motor bike accident on 12 September 2022, where the claimant was said to have injured her neck, left hand and abdomen. Except for a referral letter to the Prince of Wales Emergency department dated 13 September 2022, this was not mentioned anywhere else in any submissions. The claimant also did not refer to it when Medical Assessor Gibson examined her.
The Panel wrote to the parties on 2 November 2023 to ascertain whether this clinical note referred to the claimant and if so whether it had any significant impact on the conditions the Panel is examining.
The claimant’s submission and some evidence on this 2022 accident arrived 8 February 2024. The claimant submitted that she "sustained gravel burns to her left hand and abdomen area. The claimant also sustained a minor aggravation (the Panel's emphasis) of her neck injury which resulted from the " 16 September 2022 accident. The undated photographs of the skin burns showed progressive healing of the skin burns on her left hand (Annexure B of the claimant’s recent submissions).
The general practitioner clinical notes dated 23 September 2022 mentioned the burns with a finger sprain, but no mention of any neck complaint. Hence, the 2022 accident caused a brief aggravation of her neck condition.
The insurer submitted on 12 February 2024 that it wants to examine the 2022 accident more closely. The insurer wants the claimant to answer the insurer’s request for further and better particulars dated 7 September 2023, by close of business 1 March 2024.
The insurer also asked for a timetable to inform the PIC and the claimant about whether it requires further evidence and to provide further submissions about the 12 September 2022 accident.
The Panel exchanged emails and met again on 8 March 2024 to consider the 12 September 2022 accident.
The Panel considered Medical Assessor Gibson’s examination and the medical evidence supporting the accident-related injuries. The Panel considered the parties’ late submissions and decided to refuse the insurer’s request for further directions to investigate the 2022 accident. The 2022 accident described injuries that would not have impacted on how it assessed permanent impairment from the 2016 accident.
This is because the Panel applying its clinical judgment accepted the neck aggravation was transient and the other injuries were different to those caused by the 2016 accident. There was only the initial note in the Wetherill Park notes about the neck and the rest of the treatment for that accident related to burns.
The Panel finally considered the question of whether the 2016 accident described could have injured the claimant as she claims, resulting in soft tissue injuries to different parts of her spine, her shoulders and requiring treatment such as pain medication, which could contribute to a digestive system condition.
The Panel disagrees with Medical Assessor Truskett’s certificate dated 23 October 2022 because the subject accident’s mechanism was sufficient to cause the described injuries and the claimant’s prescribed use of pain medication to treat those injuries satisfied the Panel that the accident materially caused those injuries and her digestive condition.
The Panel finds that the 2016 accident caused the injuries. Reasons include:
(a) Ms Johson-Droscher sought treatment soon after the accident;
(b) there were no intervening events as she just went home after the accident and rested until she saw her GP;
(c) how she consistently described her injuries;
(d) and because the clinical history recorded in notes and reports supports her claim.
Further, Medical Assessor Gibson’s examination and testing yielded different outcomes to the earlier assessments. The claimant’s credit was not a relevant factor in this Panel’s findings.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
· cervical spine;
· thoracic spine;
· lumbar spine;
· right shoulder;
· left shoulder;
· upper digestive tract, and
· lower digestive tract.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine;
· thoracic spine;
· lumbar spine, and
· lower digestive tract.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· right shoulder 2%
· left shoulder 2%
· upper digestive tract 2%
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 6%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Phillip Truskett’s further assessment dated
23 October 2022.
Accordingly, the Review Panel will revoke this certificate and issue a new Permanent Impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
Review Panel
Personal Injury Commission
APPENDICES
APPENDIX A
Statutory Provisions
Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary on 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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
APPENDIX B
Original Assessor’s findings
The Commission referred the permanent impairment dispute on 13 May 2022 to Medical Assessor Truskett for further assessment because the claimant provided additional material, which showed it was arguable that the claimant’s condition had deteriorated since a Panel consisting of Medical Assessors Couch, Buckley, and Fitzsimons issued its medical assessment certificate dated 8 March 2020.
Medical Assessor Truskett certified on 23 October 2022 that the 2016 accident caused the following injuries:
cervical spine soft tissue injury;
thoracic spine soft tissue injury;
lumbar spine soft tissue injury;
right shoulder soft tissue injury, and
left shoulder soft tissue injury.
He certified that the 2016 accident did not cause a digestive system injury.
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
Medical Assessor Truskett did not comply with the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines (Guidelines) requirements when undertaking his assessment, particularly on causation and impairment assessment. For example, Medical Assessor Truskett wrote on page 7 of his certificate that loss of sensation in the entire right upper limb, lateral flexion to the left side and right side of the cervical spine was two-thirds of the normal flexion, and rotation left to right was two-thirds normal of a normal rotation.
Despite what he found, he did not find any current impairment and/or subtract any pre-existing or subsequent impairment in accordance with any identifiable objective evidence of same, which has resulted in a material error on causation and impairment assessment in breach of cls 1.31-1.34 of the Guidelines.
Further, Medical Assessor Truskett’s findings are substantially inconsistent with the claimant’s treating evidence, including radiological investigations and medical records from before and after the 2016 accident, as summarised below. Additionally, Medical Assessor Truskett has also made inconsistent findings about the claimant’s range of movement (ROM) for the upper limbs. The Medical Assessor did not use a goniometer to assess ROM which resulted in inconsistent and unscientific ROM measurements contrary to the AMA4 Guides.
Medical Assessor Truskett did not formulate his causation findings and impairment assessment in accordance with the test laid out in clauses 1.31-1.34 of the Guidelines with reference to what caused the injuries, which is a material error.
The earlier medical assessment certificate dated 8 March 2020 assessed that the 2016 accident caused a permanent impairment of 9%. The Medical Assessors agreed the claimant was clear and straightforward in telling her story, in contrast to Medical Assessor Truskett’s comments on the claimant’s credit.
That Panel decided the 2016 accident caused permanent impairment as follows:
cervical spine 5%;
right shoulder 2%, and
left shoulder 2%.
Medical Assessor Truskett unlike the earlier Review Panel, did not consider, or properly consider, the complaints to her treating Drs Hua and Truong soon after the 2016 accident about cervical and bilateral radicular upper limb pain symptoms which establishes causation and the existence of the claimant’s ongoing impairment when read with the treating and medico-legal evidence.
Medical Assessor Truskett did not assess the claimant’s upper extremity impairments using the principles in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 (Nguyen).
Medical Assessor Truskett speculates on what caused the cervical spine, bilateral upper limb and gastrointestinal injuries and impairments. This speculation contradicts the medical evidence, and breaches the principles enunciated in NRMA Insurance v Brown [2019] NSWSC 1236, see [76].
Medical Assessor Truskett did not tell the claimant his opinion about how the injuries occurred, which breaches the Guidelines.
Properly assessing the claimant’s cervical spine and lumbar spine would have resulted in a DRE category II finding in relation to each of those levels of the spine, consistent with
Dr Berry’s assessment findings dated 3 March 2022, with additional assessments of the claimant’s upper limbs at 2% whole person impairment (WPI) each which, save for the lumbar spine are wholly consistent with the earlier Review Panel’s finding as outlined, with the additional findings in relation to the claimant’s gastric impairments. This would result in a greater than 10% permanent impairment finding.
Regarding the claimant’s upper digestive tract gastric impairments, Medical Assessor Truskett’s was speculating in his findings on page 10 of his certificate, because on the available evidence and the symptom the claimant demonstrates there is enough to satisfy the causation test. The condition is consistent with taking painkilling medications following the 2016 accident. It is irrelevant that she did not exhibit gastrointestinal symptoms at the time of the 2016 accident.
Insurer’s submissions
The insurer opposed the referral to a review Panel.
A full reading of Medical Assessor Truskett’s certificate reveals that he extensively reviewed causation after recording the claimant’s history as to her complaints before and after the 2016 accident, conducting a clinical examination, and reviewing all the relevant medical evidence.
Medical Assessor Truskett’s discussion incorporates a more specific discussion as to whether the 2016 accident caused a bowel injury.
On making the claimant aware of alleged inconsistencies the insurer acknowledges the injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.[BG2]
Medical Assessor Truskett’s comments as to the claimant’s credibility were consistent with the information obtained through the medical material, as set out below:
Dr Rogers’ report dated 3 May 2017 opined that the claimant’s symptoms were “not consistent with non-verifiable radicular complaints because the symptoms are bilateral and do not follow the distribution of a specific nerve root”;
Medical Assessor Steadman found the claimant’s “presentation features inconsistent with physical conditions” when he examined the claimant on
4 September 2019;
the MAS Review Panel Certificate dated 8 March 2020 recorded that the claimant’s “apparent difficulty with quite simple physical movements during this examination was not consistent with the social media footage sent to the Panel”, and
Dr Virgona’s report dated 26 January 2021 noted inconsistent presentation and the social media footage showing the “claimant interacting with others, chatting, apparently euthymic mood, normal range of emotion, no obvious distress, no obvious physical issues, restrictions or pain behaviour; applying make-up and engaged in the process”.
APPENDIX D
Documentation
The Review Panel considered the following documentation:
Medical Assessor Truskett’s certificate issued on 23 October 2022;
the claimant’s review application and attached documents;
the insurer’s reply and attached documents;
the Presidential delegate’s reasons issued 21 December 2022 referring this matter to a Review Panel;
all the documents which were provided to Medical Assessor Truskett before the assessment under review, and
Myhealth Wetherill Park clinical notes covering the claimant’s medical history from before and since the 2016 accident. These were provided to the Commission on 21 September 2023 after Medical Assessor Gibson examined Ms Johnson-Droscher.
APPENDIX E
Permanent Impairment Table
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical Spine | Chapter 3, Page 103 Section 3.3h Table 70, Page 108 Table 73, Page 110 | Yes | 0% | 0% | 0% |
| 2 | Thoracic spine | Chapter 3, Page 106 Section 3.3i Table 70, Page 108 Table 74, Page 111 | Yes | 0% | 0% | 0% |
| 3 | Lumbar Spine | Chapter 3, Page 101 Section 3.3g Table 70, Page 108 Table 72, Page 110 | Yes | 0% | 0% | 0% |
| 4 | Right Shoulder | Chapter 3, Page 41 Section 3.1j Figure 38, Page 43 Figure 41, Page 44 Figure 44, Page 45 Motor Accident Authority Guidelines effective from 1 June 2018, Paragraph 1.40 Nguyen principle | Yes | 2% | 0% | 2% |
| 5 | Left Shoulder | Chapter 3, Page 41, Section 3.1j, Figure 38, Page 43 Figure 41, Page 44 Figure 44, Page 45 Motor Accident Authority Guidelines effective from 1 June 2018, Paragraph 1.40 Nguyen | Yes | 2% | 0% | 2% |
| 6 | Upper Digestive tract | Chapter 10 Page 239 Table 2 Class 1 | Yes | 2% | 0% | 2% |
| 7 | Lower Digestive tract | Chapter 6 Page 241 Table 3 Class 1 | Yes | 0% | 0% | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
* %WPI = percentage whole person impairment
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