Karim v Allianz Australia Insurance Limited
[2022] NSWPICMP 5
•13 January 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Karim v Allianz Australia Insurance Limited [2022] NSWPICMP 5 |
| CLAIMANT: | Mariam Karim |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL: | Principal Member John Harris Dr Alan Home Dr Leslie Barnsley |
| DATE OF DECISION: | 13 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- The claimant suffered injuries in a motor vehicle accident in 2017; the dispute related to the assessment of permanent impairment of the left shoulder and the spine; Held- the claimant was re-examined by the two medical assessors on the Review Panel and presented in a consistent manner with good range of movement in the spine and left shoulder; the Panel was satisfied that the claimant suffered injuries to the left shoulder, neck and low back and referred pain from neck to the thoracic spine; the suggested variation in movements to other doctors did not detract from the consistent presentation in the above findings; furthermore, the Panel is not required to choose between competing medical opinions and is required to form its own opinion; Insurance Australia Group Ltd v Keen; the claimant’s permanent impairment of each area of the spine was 0% based on the physical examination; the impairment of the left shoulder was 2% based on direct trauma and neck symptoms effecting range of movement; original medical assessment revoked. |
Medical Assessment – Permanent Impairment
Review Panel Certificate
Issued under Part 3.4 of the Motor Accidents Compensation Act 1999
following a review under section 63 as to
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%
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:
The Panel revokes the certificate dated 10 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%:
· Left shoulder – soft tissue injury;
· Cervical spine – soft tissue injury;
· Thoracic spine – referred pain related to the cervical spine injury, and
· Lumbar spine – soft tissue injury.
BACKGROUND
Ms Mariam Karim (the claimant) suffered injury in a motor accident on 25 March 2017. Ms Karim was a passenger in a vehicle when she struck from the side by another vehicle.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Ms Karim any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor James Bodel and dated 11 March 2021. The details of that assessment are set out later in these Reasons.
The application for referral of a medical assessment to a Review Panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 63(7) of the MAC Act.
On 27 August 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, clause 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 Personal Injury Commission (the Commission).
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
All members of the Panel had no previous involvement with this matter. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties which required respective bundles of documents to be filed.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Bodel concluded that Ms Karim suffered a 13% permanent impairment as a result of the motor accident. The Medical Assessor found a 5% impairment of the lumbar spine, an 8% impairment of the left upper extremity and 0% impairments of the thoracic and cervical spines. In relation to the left upper extremity the Medical Assessor found a “probable rotator cuff injury”.
MATERIAL BEFORE THE REVIEW PANEL
The Panel were provided with a bundle of documents from the insurer.[8] The claimant advised that all relevant material had been included in the insurer’s bundle.
Clinical notes
[8] 1,032 pages.
The clinical notes prior to the motor accident refer to various health symptoms such as flu, gastroenteritis, high fever and tonsilitis. There were no pre-accident symptoms to the body part associated with the injuries claimed in the motor accident.
The clinical note of the general practitioner dated 27 March 2017 records the following:[9]
“Pain Neck, low back, L shoulder and L elbow pain post MVA.
She was in the passenger seat where a car hit their vehicle from the L side.”
[9] Insurer’s bundle, p 852.
The doctor noted left forearm bruises and requested x-rays for the lumbar spine, cervical spine, left shoulder and left elbow.
On 9 April 2017 the general practitioner again noted left shoulder, elbow back and neck pain.[10] The general practitioner then issued a medical certificate noting injury to those body parts.[11]
[10] Insurer’s bundle, p 852.
[11] Insurer’s bundle, p 804.
Subsequent clinical notes refer to the doctor prescribing panadeine forte for pain.
The hospital admission summary recorded the following:
“17 year old woman presenting after MVA. Patient was passenger in a car which was travelling approximately 40-50 kmh when another car turned onto the street approximately 10kmh and hit the passenger side. Airbags deployed on passenger side. Passenger was wearing seatbelt. Patient hit head of side of door. ? LOC for 3 seconds. Patient mobilising. No neck pain. Patient complaining of pain along her left side – left shoulder, left ribs, left hip.”
Tenderness to the left shoulder was noted although there was no cervical and lumbar spine tenderness. However, triage notes referred to left lateral neck pain radiating to the left scapula and left lateral lower limb pain.
The notes record that Ms Karim had left the hospital prior to undergoing x-rays.[12]
[12] Insurer’s bundle, p 358.
An MRI scan of the cervical spine dated 23 June 2017 reported a posterior bulge at C5/6. The lumbar spine MRI scan was reported as mild bulges at the lowest three levels.[13]
[13] Insurer’s bundle, p 346.
A report from Bankstown physiotherapy dated 4 November 2017 noted treatment from 25 September 2017 based on complaints of neck pain, left shoulder pain and lower back pain.[14]
[14] Insurer’s bundle, p 1,030.
Mr Medhat Metry is the treating psychologist and provided a report dated 10 February 2019[15]. The psychologist referred to the back, neck and left shoulder injuries sustained in the motor accident and diagnosed a post-traumatic stress disorder and depressive disorder. He noted that that the physical pain continued to represent a significant stressor.
[15] Insurer’s bundle, p 275.
Qualified opinions
Dr Andrew Keller, Occupational Physician, was qualified by the insurer and provided a report dated 1 May 2018.[16] Dr Keller noted ongoing complaints of pain in the left shoulder, neck and back.
[16] Insurer’s bundle, p 805.
The doctor noted inconsistent movements in the cervical spine and symmetrical restriction of motion in both shoulders. He felt that Ms Karim was “maximising her disabilities and could find no objective evidence for any persisting injuries to the cervical or lumbar spine, or in the shoulder joints.”
Dr Keller accepted the benefits of physiotherapy for three months after the motor accident. He opined that there was no evidence of persisting injuries and there was a possible strain to the cervical spine and lumbar spine and no evidence of any injury to either shoulder joint.
In an “impairment assessment” report dated 1 May 2018[17], Dr Keller stated that it was not possible to say that Ms Karim was not suffering pain in the neck and back but that the presentation “was so inconsistent that it is not clear to me that I can make an objective diagnosis of any persisting musculoskeletal injury that can be assessed for whole person impairment”.
[17] Insurer’s bundle, p 815.
Dr Angelo Virgona, Psychiatrist, was qualified by the insurer and provided a report dated 19 March 2019.[18] The doctor noted that Ms Karim suffered from chronic pain which dominated the clinical picture and diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood.
[18] Insurer’s bundle, p 818.
Dr Christopher Oates, Occupational Physician, was qualified by the claimant’s lawyers and provided a report dated 30 January 2018.[19]
[19] Insurer’s bundle, p 262.
Dr Oates noted full range of movement in the right shoulder and restricted movement in the left shoulder. The doctor diagnosed soft tissue injuries to the cervicothoracic and lumbar spines with radiating symptoms to the left upper and left lower extremities. The assessment of the left upper extremity was based on restricted range of movement secondary to cervical spine discomfort.
Dr Ben Teoh, psychiatrist, was qualified by the claimant’s lawyers and provided a report dated 8 November 2018. The doctor diagnosed a chronic adjustment disorder with anxiety.
Ms Karim’s statements
Ms Karim provided a statement dated 25 August 2017[20] and stated that she was in year 12 and was doing quite well at school prior to the accident but had since lost interest.
[20] Insurer’s bundle, p 365.
Ms Karim stated that she sustained injuries to her neck and low back in the motor accident.
In a further statement dated 30 January 2020, Ms Karim stated that she suffered low back pain, neck pain and left shoulder pain in the motor accident.[21] The claimant stated she takes pain medication each day and suffered from a psychological injury.
[21] Insurer’s bundle, p 367.
A claim form dated 30 March 2017 listed injuries to the lumbosacral spine, neck, left shoulder and left elbow.[22]
[22] Insurer’s bundle, p 797.
School documents
In December 2016, the high school issued Ms Karim with official warnings that she was in danger of not meeting the course completion criteria for the Legal Studies course standard English course.[23] The documentation includes other warnings to Ms Karim for not meeting course completion criteria and behavioural issues.
SUBMISSIONS
[23] Insurer’s bundle, pp 1,022-1,023.
The insurer’s initial submissions prior to the medical assessment referred to inconsistencies observed by Dr Keller and the differences in findings on examination between Dr Oates and Dr Keller.[24]
[24] Insurer’s bundle, p 1,032.
The insurer also referred to findings of the CT scan of the lumbosacral spine dated 3 August 2018 which were reported as normal. It noted the relevance of the physical symptoms in the context of the allegations of psychological injury.
The insurer in its review submissions referred to inconsistencies between the claimant’s histories of her school performance and the school records. It also noted substantial absences from school for various ailments and the inconsistent history that she was doing quite well prior to the motor accident.
The insurer noted inconsistent range of movements as recorded by Dr Oates in January 2018, Dr Keller four months later and by Medical Assessor Bodel.
The insurer referred to absences of reference to left shoulder injury at paragraph 7 “in that statement”[25] and the statement by the sister. It submitted that there was nothing in the clinical notes of treatment of the left shoulder.
[25] Insurer’s submissions, 1 (e) (i).
The insurer referred to the report of Dr Keller dated April 2018 which “raises concerns about the claimant’s presentation and inconsistencies”.[26]
[26] Insurer’s submissions, 1 (g).
In its review submissions, the claimant asserted that the review is “without merit”. It submitted that the Medical Assessor did not err in not considering school reports but opined that this did not add to the level of understanding of the physical assessment.
The clinical findings of the Medical Assessor were performed substantially later than the assessments of Dr Oates and Dr Keller in circumstances where there had been a history of deterioration.
The claimant noted the contemporaneous notes which included hospital notes, the clinical note of the general practitioner and the claim form which provided “ample evidence” for the Medical Assessor to conclude that there had been injury to the left shoulder.[27]
[27] Claimant’s review submissions, [14]-[19].
RE-EXAMINATION
Ms Karim was examined by Medical Assessors Home and Barnsley on 16 December 2021. The joint report of the Medical Assessors is as follows:
“Review of reports
The MAS Certificate of Dr Bodel notes injuries to the cervical spine, left shoulder (Nguyen principle), lumbar spine and thoracic spine. He documented clinical findings of symmetrical restriction of neck motion without dysmetria. This is concordant with the Panel’s findings at the current assessment. In the thoracic spine, he found slight symmetrical restriction of motion. This is also concordant with this Panel’s findings. Although Dr Bodel found evidence of lumbar spine dysmetria, this was not reproduced at the Panel’s assessment today. Dr Bodel found restricted motion at the left shoulder. The degree of restricted motion at the left shoulder was less at the current assessment than that documented by Dr Bodel.
The medical assessors reviewed the report of Dr Oates dated 30 January 2018. Dr Oates found restricted dysmetria in the cervicothoracic region and in the lumbar spine region. This was not reproduced at the current assessment. Dr Oates found mild restriction of active left shoulder motion, similar to the current findings.
The report of Dr Keller dated 1 May 2018 details marked restriction of cervical spine flexion that was inconsistent. The Panel found that the range of active motion at the cervical and lumbar spine was symmetrical and there was no evidence of inconsistency. The range of shoulder motion found by the Panel was somewhat greater than that documented by Dr Keller. The Panel notes that the assessments of Dr Oates and Dr Keller were undertaken in May 2018, some three years ago.
The medical assessors inquired about her scholastic performance and attendances. Her history is consistent with the school record.
Investigations· MRI cervical spine, 23 June 2017 – there is normal cervical spine alignment, no facet joint subluxation and no fracture. No cord signal alteration. C2/3 to C4/5 normal. At C5/6, a broad-based disc bulge visualised. Moderate right foraminal stenosis. Left exit foramen is patent. At C6/7, no abnormality. At C7/T1, no abnormality.
· MRI lumbar spine, 23 June 2017 – there is mild posterior disc annulus bulging at L3/4, L4/5 and at L5/S1.
· CT scan lumbar spine, 3 August 2018 – no abnormality detected.
The claimant presented the following further investigations to the Panel today and these were considered:
· Ultrasound bilateral shoulders, 14 October 2021 – bilateral mild to moderate subacromial bursitis, slightly thicker on the left shoulder. Possible bilateral mild supraspinatus tendinosis without tear.
· Technetium bone scan, 22 September 2021 – there is no scan evidence for significant spondylosis involving the vertebral column nor active facet joint arthritis in the cervical and thoracic spine. Low grade findings of bilateral plantar fasciitis.
· MRI lumbar spine, 27 October 2021 – at L4/5, disc desiccation with a posterocentral annulus tear and disc protrusion without neural impingement. No evidence of spondyloarthropathy.
· MRI sacroiliac joints, 27 October 2021 – there is bone oedema of the left and right sacroiliac joints, particularly on the right side. There is articular surface irregularity consistent with erosions. There is sclerosis of the iliac margin of the right sacroiliac joint. The findings are consistent with bilateral sacroiliitis and the presence of bone oedema is consistent with active inflammation.
History
Ms Karim states that on 25 March 2017, she was the front-seat passenger in a VW sedan driven by a female friend. The car turned into South Terrace in Punchbowl and was struck on the front passenger side by a car coming from a side street on the left. There was panel damage to the front and rear doors. She recalls it was necessary for her to alight from the driver’s side door. She recalls that airbags deployed at the time of impact. She does recall subsequent bruising to the arms from the airbags.
She was taken to Bankstown Hospital with early symptoms of left shoulder pain, pain in the left ribcage and she also recalls pain across her lower back. She left the Bankstown Hospital prior to imaging being undertaken. She recalls a dispute with one of the nurses. Whilst she was at the hospital, police took a statement.
Subsequently, she developed neck pain, persisting left shoulder pain and lower back pain.
She recalls that she subsequently came into the care of her general practitioners and was subsequently seen by doctors at both Isra and A-Z Medical Centres for the management of her complaints. She recalls a period of physical therapy of approximately 12 months’ duration, incorporating passive treatment directed towards her neck, left shoulder and lower back. She recalls temporary benefit only from the physical therapy.
She also attended a clinical psychologist.
She received treatment with multiple analgesic medications. After the first 12 month period, there was little treatment.
Three months ago she came into the care of a new general practitioner, Dr Barlow. She was referred to Dr Reiter, rheumatologist. She has undergone screening for inflammatory conditions. She has also undergone further imaging, which was brought to the assessment today. This included Technetium bone scan performed in September 2021, ultrasound of both shoulders performed in October 2021 and MRI scans of the lumbar spine and sacroiliac joints performed in October 2021.
She reports the current use of Targin 10/5 twice daily, Endone 5 mg approximately twice weekly, tramadol, which she takes approximately once fortnightly, Valium 10 mg nocte, Cymbalta 120 mg mane. She takes Panadeine Forte, two tablets daily.
Periodically she undertakes home exercise, as previously instructed by her physiotherapist.
Current symptoms
She describes intermittent neck pain present about second daily. The pain is felt in both sides of the neck, a little more severe on the right than the left. She reports associated global headache with nausea which she describes as migraine attacks. She reports that the headaches occur once fortnightly. They are relieved by analgesia.
At the right shoulder, she describes pain extending from the neck to the trapezius (indicated). There is similar pain at the left shoulder. There is some pain with extreme elevation of the shoulders. There are no consistent distal complaints of paraesthesia or numbness.
She prefers to sleep supine.
She describes some radiation of pain from her neck into the upper most part of the back. There are no symptoms of mid-back pain. There is no pain with deep respiration, coughing or sneezing.
She describes bilateral low back pain, slightly more severe on the left, exacerbated by prolonged periods of sitting, standing and walking. There is no back pain with coughing and sneezing. There is no bladder dysfunction.
She reports a constipated bowel habit, which she manages with Movicol. There are no complaints of lower limb paraesthesia or numbness.
She describes pain in the heels of both feet associated with prolonged standing.
She is right hand dominant. She describes a sitting tolerance of one hour and a similar tolerance for driving. She stands and walks through much of the day during the course of her employment as a pharmacy assistant. However, she describes exacerbation of back pain when standing constantly for 20 minutes, such that she prefers to sit at frequent intervals. She describes mild stiffness in lower back motion.
There is no disability for crouching and kneeling. She describes some difficulty getting up from a deep crouching position due to back pain.
She is woken from her sleep several times per night. She is independent for activities of self care. She is able to lift and carry light weight. She estimates a capacity to lift up to 2 kg.
She is single, living with her parents, younger sister and older brother. She has seven siblings in all. She undertakes vaping but does not smoke cigarettes. She helps out with very light domestic chores at her home but does not engage in household cleaning. She shops for odds and ends.
She said that at the time of the accident, she was commencing Year 12 studies. She eventually completed her studies. She said that she was not particularly interested in school and is uncertain of the outcome of her marks. Prior to the accident, she was also working as a casual pharmacy assistant. She recommenced work as a pharmacy assistant three months ago. She was initially hoping to be employed three days but has since increased to five days per week due to COVID-19 illness affecting the head pharmacist.
Past history
She had a history of psoriatic scalp dermatitis in 2016. She suffers from asthma managed with medication.
Examination
On examination, a 21 year old standing 167 cm, weighing 72 kg. She is co-operative throughout the assessment. She was examined in a gown.
Cervical spine
On examination of the cervical spine, there is normal spinal curvature. There is no muscle spasm. Cervical flexion and extension are performed to normal range. Right and left rotation is symmetrically performed to normal range. Lateral flexion is symmetrically performed to two thirds the normal range. There is no muscle guarding evident.
Upper extremity
Neurological examination of the upper extremities reveals no muscle wasting. The circumference of the arms are symmetrical at 29 cm. There is normal upper limb power in all myotomes. There is normal sensibility throughout. The deep tendon reflexes are brisk and symmetrical.
At the right shoulder, there is no muscle wasting. Active motion is measured by goniometer methods as follows: flexion 160˚, extension 50˚, abduction 140˚, adduction 50˚, external rotation 70˚ and internal rotation 50˚.
At the left shoulder, flexion 160˚, extension 50˚, abduction 150˚, adduction 50˚, external rotation 90˚ and internal rotation 50˚. There was tenderness elicited to palpation over the anterior aspect of the left shoulder overlying the anterior glenohumeral joint. There is normal MRC grade 5 power of resisted movements across the rotator cuff.
Thoracolumbar spine
On examination of the thoracolumbar spine, there is normal spinal curvature. There is no muscle spasm. Thoracolumbar flexion and extension are performed to normal range. Right and left thoracic rotation are symmetrically performed to two thirds the normal range. Right and left lateral flexion are symmetrically performed to normal range. There is no muscle guarding. There are no clinical features of thoracic radiculopathy.Lumbosacral spine
There is normal spinal curvature. There is no muscle spasm. Lumbosacral flexion and extension are performed to normal range. Lumbar rotation and lateral flexion are performed symmetrically to normal range. Straight leg raise is performed to 60˚ bilaterally. Lasègue’s sign is negative. Neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is no muscle wasting. The circumference of the thighs is symmetrically measured at 44 cm. The calves are symmetrically measured at 35 cm. There is normal sensibility throughout the lower extremities. The deep tendon reflexes are symmetrically present and brisk. Plantar reflexes are downgoing. There is tenderness elicited to palpation overlying both sacroiliac joints. There is tenderness elicited to palpation overlying the plantar fasciae at both feet.
Consistency
The claimant was consistent throughout the clinical assessment.
Diagnosis and causation
The Panel found the motor vehicle accident was consistent with causing the injuries set out below. The Panel has considered Sections 6.6 and 6.7 of the SIRA Guidelines in relation to causation. The Panel finds that the motor accident is more than a negligible cause of the diagnoses set out below.
Cervical spine
The Panel found that the claimant has sustained a soft tissue injury to the cervical spine. There are no clinical features of radiculopathy. There are no non-verifiable radicular complaints. There is early documentation of neck pain in the medical file. There is reported radiation of pain to the trapezius muscles bilaterally, which has continued.
Thoracic spine
In the thoracic region, the claimant reports pain extending to the upper thoracic back. The diagnosis is muscular pain related to the whiplash associated disorder. The Panel found no evidence of local thoracic spine injury.
Lumbar spine
In the lumbar spine, the claimant suffered a soft tissue injury. There is early documentation of back pain. There has been a persistent complaint of back pain since the accident. The Panel is satisfied the claimant sustained a soft tissue injury to the lumbar spine. The claimant also presents with clinical features of bilateral sacroiliitis, related to an underlying spondyloarthropathy. The latter is manifest by the clinical and features of bilateral sacroiliitis and bilateral plantar fasciitis. There are features of active inflammation at the sacroiliac joints on recent imaging.
Left shoulder
The claimant sustained a soft tissue injury to the left shoulder. The claimant was involved in an accident in which she was struck on the left side. There is early documentation of left shoulder pain. The panel concludes that the claimant suffered a soft tissue injury to the left shoulder but further, that she has suffered referred muscular pain from the neck, limiting shoulder elevation.
Whilst we noted mild restriction of motion at the right shoulder, we consider this is due to the subsequent development of bursitis and should not be used as a baseline for impairment on the injured left side.
Assessment of impairmentStatement about Permanent Impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Motor Accident Permanent Impairment Guidelines 2017.
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (p.315) as follows:
'Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.'
In our view the impairment in this case meets the definition of permanency outlined above.
Cervical spine
The clinical presentation is consistent with a DRE Cervical Category I impairment rating. There are complaints of intermittent neck pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 103.
Thoracic spine
The clinical presentation is consistent with a DRE Thoracic Category I impairment rating. There are complaints of intermittent upper back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 106.Lumbar spine
The clinical presentation is consistent with a DRE lumbar Category I impairment rating. There are complaints of intermittent low back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 102.
Left shoulder
Impairment is determined using the methodology set out in SIRA Guides (December 2020) and the AMA 4, Chapter 3.Impairment of the shoulder is determined using range of motion methods, using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively, as set out in the table below.
Shoulder Movements Active ROM Measured
LEFT °Upper Extremity Impairment
AMA Guides (4th Ed)Flexion 160 1% (Fig 38, pg 43) Extension 50 0% (Fig 38, pg 43) Abduction 150 1% (Fig 41, pg 44) Adduction 50 0% (Fig 41, pg 44) Internal Rotation 50 2% (Fig 44, pg 45) External Rotation 90 0% (Fig 44, pg 45) Total UE Impairment 4% UEI
A 4% upper extremity impairment rating converts to a whole person impairment rating of 2% using Table 3, AMA4, page 20 to convert upper extremity impairment to whole person impairment.
Body Part or System AMA Guides/ MAA 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 AMA4 Chapter 3
Page 103YES 0% 0% 0% 2. Thoracic spine AMA 4
Chapter 3
Page 106YES 0% 0% 0% 3. Lumbar spine AMA4
Chapter 3
page 102YES 0% 0% 0% 4. Left shoulder
Fig 38, 41, 44, AMA 4, Pg 43, 44, 45, YES 2% 0% 2% * %WPI = percentage whole person impairment
Conclusion – Permanent Impairment
The degree of permanent impairment caused by the accident: 2%
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[28]
[28] Section 63(3A) of the MAC Act.
The Panel adopts the reasons of the Medical Assessors and adds the following reasons.
Causation - legal principles
Clauses 1.5 – 1.7 of the Guidelines provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 claims assessor) in considering such issues.
1.6 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 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.”
In Peet v NRMAInsurance Ltd[29] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[30] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D.”[31]
[29] [2015] NSWSC 558 (Peet).
[30] [2012] NSWSC 560 (Owen).
[31] Owen at [27].
More recently in Hunter v Insurance Australia Ltd[32] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [52] herein) which incorporated “common law principles of causation”[33].
[32] [2021] NSWSC 623 (Hunter).
[33] Hunter at [16].
Ms Karim complained of various injuries within a short period of the accident including to the left shoulder which on an early account, suffered direct trauma. The insurer’s contrary submission that there was no left shoulder injury is incorrect. However, the recent scan evidence did not show a tear as suggested by Dr Bodel and the clinical presentation to the Medical Assessors was not suggestive of such pathology.
We are satisfied that Ms Karim suffered injury to the neck, lefts shoulder, neck and back.
The insurer referred to the various medical reports and noted inconsistent presentation to those doctors. However, Ms Karim’s presentation to the Medical Assessors on the Panel was consistent and showed a good range of movement. We do not consider that the variation in movements to other doctors detracted from the consistent presentation in the above findings.
Furthermore, the Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen.[34] The above clinical findings made by the Medical Assessors and adopted by the Panel show that we have adopted that approach.
[34] [2021] NSWCA 287 at [40], [41], [45].
We finally observe that the insurer’s submissions on the suggested inconsistency between Ms Karim’s account of her education and the school records do not cause us to reject the observed clinical findings of the Medical Assessors. Similarly, given the consistency of presentation, we do not consider the psychological condition referred to by various doctors to have affected the claimant’s presentation.
Conclusions
Ms Karim suffered injuries to the left shoulder, neck and back. The certificate of the Panel is set out at the commencement of these Reasons.
0
4
0