Kewin v AAI Limited t/as AAMI
[2025] NSWPICMP 635
•22 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Kewin v AAI Limited t/as AAMI & Anor [2025] NSWPICMP 635 |
CLAIMANT: | Stephen Kewin |
FIRST INSURER: | AAI limited t/as AAMI |
SECOND INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 22 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant was driving a work vehicle as a courier on the date of injury; Medical Assessor (MA) certified that referred injuries to cervical spine, lumbar spine, left wrist and hand, and right elbow are threshold injuries caused by the subject accident; MA found that injuries to both shoulders were not caused by the accident; bio-mechanical engineering evidence as to mechanism of accident and causation of injuries; Held –Review Panel did not accept claimant’s evidence as to circumstances of accident and mechanism of right elbow injury; Review Panel found accident-related injuries to cervical spine, left wrist and hand are threshold injuries; Review Panel found injuries to the lumbar spine, both shoulders, and right elbow were not caused by subject accident; symptoms likely caused by underlying degenerative conditions; all are otherwise threshold injuries; certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 29 November 2024 and issues a new certificate determining that: (a) the following injury caused by the motor accident: · cervical spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left wrist – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left hand – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; is a THRESHOLD INJURY for the purposes of the Act. (b) the following injuries referred for assessment have been assessed and determined to be not caused by the motor accident: · lumbar spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left shoulder – orthopaedic injury, aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury; · right shoulder – orthopaedic injury, aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury; · right elbow – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. A decision as to whether these injuries are a THRESHOLD INJURY is not required. However, the Panel is satisfied that each of those injuries relevantly is a threshold injury, for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Stephen John Kewin (the claimant) was driving a work vehicle as a courier on the date of injury. He was stationary on the Hume Highway, at Ashfield, waiting to turn right in an angle into Thomas Street, when his vehicle was rear-ended by a semi-trailer loaded with two shipping containers. His vehicle was pushed across the intersection and struck a safety wall. The claimant says the force of the impact was sufficient to break his driver’s seat and seatbelt. The airbags did not deploy. The insured driver extricated the claimant from his vehicle. An ambulance attended. He was taken to Royal Prince Alfred Hospital and treated in the emergency department before being discharged. The claimant presented to his General Practitioner a few days later.
The claimant says that he suffered the following injuries in the accident:
(a) injury to the neck;
(b) injury to the back radiating to both legs;
(c) injury to the left shoulder, left wrist and left hand, and
(d) injury to the right shoulder and right elbow.
The claimant says that he suffers from a number of consequential impairments.
AAMI (the first insurer) issued a liability notice on 7 May 2024 denying liability for common law damages on the basis that the insured person did not breach his duty of care to the claimant and was at-fault for the motor accident. The first insurer also denied liability on the basis that the claimant’s injuries are threshold injuries only pursuant to s 1.6 of the Motor Accident Injuries Act 2017 (the MAI Act) and Part 1, cl 4 of the Motor Accident Injuries Regulations 2017. GIO (the second insurer) affirmed the denial of liability on the basis of threshold injuries by a Certificate of Determination dated 3 June last.
The claimant has not returned to work since the subject accident and is now a full-time carer for his mother.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about whether the injury caused by the motor accident is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred to Medical Assessor Robert Kuru for assessment.
Medical Assessor Kuru certified on 29 November 2024 as follows:
The following injury caused by the motor accident:
· Cervical spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes
· Lumbar spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes
· Left wrist – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes
· Left hand – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes
· Right elbow – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes
is a THRESHOLD INJURY for the purposes of the Act.
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· Left shoulder - orthopaedic injury aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury
· Right shoulder - orthopaedic injury aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury
A decision as to whether these injuries are a THRESHOLD INJURY is not required for the purposes of the Act.
OTHER ASSESSMENTS
Medical Assessor Adam Rapaport certified on 29 May 2024 as follows:
The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:
· Soft tissue contusion injury with abrasion to the left hand
· Soft tissue whiplash injury to the cervical spine
An assessment of degree of permanent impairment of these injuries is therefore not required.
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· Left shoulder pain with aggravation and acceleration of degenerative change
· Right shoulder pain with aggravation and acceleration of degenerative change
· Right and left elbow injuries with acceleration of degenerative changes
· Left wrist soft tissue injury with aggravation and acceleration of degenerative changes
· Soft tissue injury to the lumbar spine with aggravation and acceleration of degenerative changes
An assessment of the degree of permanent impairment of these injuries is therefore not required.
THE REVIEW
The claimant sought a review of Medical Assessor Kuru’s certificate, on the ground that the medical assessment was incorrect within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied upon the particulars set out in the application and supporting documentation.
The claimant brought the application within the time prescribed by s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that there is reasonable cause to suspect that Medical Assessor Kuru’s assessment is incorrect in a material respect due to:
(a) failure to conduct the assessment in accordance with the provisions of the Motor Accident Guidelines (Guidelines);
(b) failure to engage with the evidence provided; and
(c) failure to provide adequate reasons.
Detailed particulars are given in support of each of those submissions. They can be briefly summarised as follows:
Right elbow injury
The Medical Assessor failed to identify the claimant’s right elbow common extensor origin intrasubstance tear, an injury which falls outside the definition of a “threshold injury” under the Act. The claimant refers to the reports of Associate Professor Paoloni who refers to reports of right elbow MRI that showed such a tear. The claimant also referred to a clinical record entry by his GP (at page 58 of the claimant’s bundle) which confirms right elbow intrasubstance tear on MRI. The claimant suggests that the tear was caused by his right elbow and forearm being trapped by his seatbelt.
Radiculopathy
The Medical Assessor failed to perform the assessment for radiculopathy correctly pursuant to the Guidelines. The claimant’s submissions then set out the five signs of radiculopathy prescribed by cl 5.8 of the Guidelines. The claimant says there is no reference to any measurements being undertaken of upper or lower limb circumference, no references to test for muscle weaknesses, and no tests as to whether the claimant exhibits sensory loss. With three criteria of radiculopathy not having been assessed, and only two criteria needing to have been demonstrated to satisfy the criteria for radiculopathy, the claimant cannot be satisfied that the determination reached by the Medical Assessor is free from error. The claimant submitted that the Medical Assessor did not perform his assessment of radiculopathy in accordance with the criteria set out in the Guidelines.
The claimant’s review application was opposed by the insurer on various grounds. The insurer observed that the claimant took issue only with the Medical Assessor’s assessment of his right elbow injury and his assessment of radiculopathy.
Right elbow injury
Firstly, the insurer notes that, in his application for assessment of threshold injury dated
30 July 2024, and his submissions of the same date, the claimant made no mention of an alleged right elbow common extensor origin substance tear. The insurer also notes that the claimant’s IME Dr Bodel, in his report dated 11 April 2022, did not diagnose such a tear, but rather “lateral epicondylitis”.Secondly, the insurer notes that the claimant did not include any tear of the right elbow in his application for assessment permanent impairment, and that Medical Assessor Rapaport did not assess any such tear.
The insurer submitted that the alleged right elbow tear is outside the terms of the medical dispute, as framed by the parties’ submissions, relying upon Mandoukos and Elammar. The insurer submitted that the practical effect of the claimant’s failure to provide submissions asserting that he suffered a right elbow common extensor origin substance tear, as a result of the subject accident, is that Medical Assessor Kuru was not required to consider that alleged injury.
As to the Medical Assessor’s alleged failure to reference material relating to a MRI scan, Associate Professor Paolini’s reports and specific extracts from GP clinical notes, the insurer submits that whether or not such material is specifically referenced in the certificate does not amount to a material error in accordance with the decided authorities, to which the insurer refers.
Radiculopathy
The insurer’s primary submission is that Medical Assessor Kuru clearly determined that radiculopathy was not present with respect to the cervical spine or the lumbar spine as he specifically confirmed in his findings. The insurer submitted that the Medical Assessor was under no obligation to specifically mention each of the clinical signs for radiculopathy and that it was sufficient for him to confirm that the claimant did not demonstrate any evidence of radiculopathy.
Insurer’s further submissions dated 28 March 2025
The insurer submits that none of the medical experts qualified by either party, nor any of the Commission Medical Assessors in the Whole Person Impairment (WPI) dispute and threshold injury dispute, has diagnosed a right elbow common extensor original substance tear caused by the subject accident. The insurer also referred to the evidence of Mr Griffiths, biomechanical engineer, who considered there was no realistic conceivable means by which an injurious load could have applied to the claimant’s elbow, in the circumstances of the accident.
Relying upon that evidence, the insurer submitted that the Review Panel could not be satisfied that any such pathology is causally related to the accident.
The insurer also referred to the delay in any reported symptoms of the elbow post-accident. The insurer submitted that a frank injury, being a tear, as supposed to a condition such as epicondylitis, should have been reported at about the time of the subject accident.
The insurer submitted that the right elbow intrasubstance tear is related to the claimant’s degenerative/over-use tennis elbow, and is not pathology that is accident related.
President’s delegate, Ashley Payne, issued a Determination of an Application for Review of a Medical Assessment on 7 February 2025 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect medical assessment was incorrect in a material respect. The basis of that decision was stated to be, the Medical Assessor’s failure to provide adequate reasons, including a failure to engage with the evidence, in relation to the right elbow intrasubstance tear.
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all the injuries referred to Medical Assessor Kuru, unless the parties otherwise agree.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 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.”
See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on
28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to
s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.a comprehensive description of the injured person’s current symptoms;
d.a careful and thorough physical and/or psychological examination;
e.diagnostic tests available at the assessment.
Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
Document Name
Date
Page No
Claimant’s review submissions
19.12.2024
1
See previously.
PIC submissions
30.07.2024
6
The claimant submits that all of the physical injuries sustained in the accident, as well as the psychological injury (Depression, Shock, Anxiety), is not a threshold injury.
Liability Notice – after 26 weeks
07.05.2024
8
Application for Internal Review
13.05.2024
13
Internal Review Outcome
03.06.2024
15
Affirmed the reviewable decision that all physical injuries fall within the definition of “threshold injury” for the purposes of the Act and that statutory benefits cease at 26 weeks after the accident.
Application for personal injury benefits
02.11.2021
26
Report of Dr James Bodel, orthopaedic surgeon, to the claimant’s lawyers
11.04.2022
32
Under the heading “HISTORY RELATING TO THE INJURY,” Dr Bodel describes the motor accident as follows:
“His vehicle was fitted with a head restraint and he was wearing his seatbelt. He was stationary with his right hand indicator on, waiting to make a right hand turn. Suddenly, he was hit from behind by a semi-trailer which had 20-foot shipping containers on the back of the trailer. He was hit in the rear and on the left hand side of the rear. The force of impact was so severe that the back of his seat broke off and the seatbelt also was damaged and he was essentially then “unrestrained”. He was pushed forward at some considerable force and hit a concrete wall but the airbags were not deployed. The Police and the Ambulance attended.”
Dr Bodel tabulates his findings upon examination for shoulder, elbow and wrist movements. Under the heading “Diagnosis,” Dr Bodel says as follows:
“The diagnosis here is a soft tissue whiplash associated disorder of the cervical spine and a musculoligamentous injury to the lower part of the back. He has rotator cuff pathology in both shoulders, lateral epicondylitis in the right elbow, a restricted range of wrist movement because of musculoskeletal injuries to the left wrist but no neurological abnormality. He has also suffered a significant psychological disturbance.”
Dr Bodel says the general prognosis remains very guarded. He does not anticipate the need for surgery. He opines that the claimant is totally incapacitated for work. He does not anticipate any further significant recovery over time.
Dr Bodel assessed WPI under the AMA Guides to the Evaluation of Permanent Impairment 5th Edition and the WorkCover Guidelines 4th Edition as follows:
DRE Cervical Category II
7%
DRE Lumbar Category II
5%
Left upper extremity
14%
Right upper extremity
5%
Dr Bodel finds 28% WPI utilising the WorkCover methodology which is not directly comparable to the assessment methodology under the Act. In any event, WPI is not a matter for the Panel’s determination.
| 39. | Premier Orthopaedics & Sports Medicine | Clinical notes | 40 |
| Report dated 2 July 2019 by Associate Professor Justin Paoloni to Dr Janelle Rifi |
“Thank you for your kind referral of this 57 year old right hand dominant man who was a courier and who presents with a history of a motor vehicle accident in November 2018. He was the driver rear-ended by a semi-trailer and was transported by ambulance with full spinal precautions. He had initial cervical and lumbar back pain, right elbow pain, and left wrist and hand pain. He continues to have right lateral elbow pain with gripping or lifting activities, but he has not had swelling, mechanical symptoms or instability. He has no distal paraesthesia. He also has left dorsal wrist pain, left base of thumb pain and left index knuckle pain. He denies previous injuries, does not have neck pain, has no significant medical history, or family history of rheumatic disease. Reports of right elbow MRI show common extensor origin intrasubstance tear. X-ray left hand is reported as showing 1st carpometacarpal (CMC) joint osteoarthritis changes.
There is pain at end: ROM right elbow movements. He has tenderness through the lateral epicondyle and ECRB tendon 0-1 cm from the insertion and pain with provocative testing including gripping and resisted wrist extension. There is no elbow joint line tenderness. Left wrist has scapholunate tenderness and radial right-sided negative pinkle styne testing. Watsons Scaphoid Shift and TFCC grind testing is negative. There is 1st CMC joint and 2nd MCP joint tenderness but no pain with resisted movements or gripping.
He has right lateral epicondylitis, left wrist synovitis, left 1st CMC and 2nd MCP joint synovitis.”
Elmore Medical Centre
Clinical notes
46
The insurer relied upon the following material which the Panel has considered:
Doc No
Name of Document
Date
Page No
RB2
Insurer’s further submissions
28.03.2025
3
· The insurer notes that in his application for assessment of threshold injury dated 30 July 2024, and in his submissions of the same date, the claimant made no mention of an alleged right elbow common extensor origin substance tear.
· The insurer observes there was no tear diagnosed by Dr Bodel, in his report dated 11 April 2022, upon which the claimant relies. The insurer observes that Dr Bodel assessed “lateral epicondylitis”.
· The insurer also notes that Dr Rimmer diagnosed the claimant with “resolved lateral epicondylitis right elbow”. (R8 and R9).
· The insurer relies upon the Certificate of Medical Assessor Rapaport dated
28 May 2024 (R13) and observes that Medical Assessor Rapaport was not asked to assess any tear of the right elbow. The insurer notes that Medical Assessor Rapaport determined that the claimant did not suffer any injury to the right elbow as a result of the subject accident.
RB4
Insurer’s submissions made to the President’s delegate
29.01.2025
6
See previously.
RB8
Report of Dr Stephen Rimmer, orthopaedic surgeon, to the insurer’s lawyers
10.05.2022
35
Dr Rimmer was not provided with diagnostic scans but refers to the relevant reports of those scans as follows:
X-ray left hand dated 14 May 2019 reports degenerative osteoarthritis of the first carpometacarpal joints.
Ultrasound right elbow dated 14 May 2019 reports tendinopathy common extensor tendon.
MRI scan of the right elbow dated 14 May 2019 reports severe common extensor origin tendinopathy.
MRI scan of the left wrist dated 2 August 2019 concludes degenerative osteoarthritis at the first carpometacarpal joint.
Dr Rimmer makes the following diagnosis:
· resolved musculoskeletal strains cervical spine;
· resolved musculoskeletal strain lumbar spine;
· resolved lateral epicondylitis right elbow; and
· resolved aggravation degenerative osteoarthritis first carpometacarpal joint left wrist/hand.
Dr Rimmer opines that, from a physical perspective, the claimant’s prognosis is good. He confirms the listed right elbow and left hand/wrist injuries are as a result of the motor vehicle accident.
Dr Rimmer assesses 0% WPI of the cervical spine, 0% WPI of the lumbar spine with 0% WPI of the right elbow and 0% WPI of the left wrist.
R9
Further report of Dr Rimmer
14.12.2023
42
Dr Rimmer’s findings upon examination are that the cervical spine lumbar spine and right elbow were essentially normal. He gives the following updated diagnosis:
· resolved musculoskeletal strain cervical spine;
· resolved musculoskeletal strain lumbar spine;
· resolved lateral epicondylitis right elbow; and
· resolved aggravation degenerative osteoarthritis first carpometacarpal joint left wrist.
Dr Rimmers says that the claimant’s prognosis from a physical perspective is excellent and repeats his previous overall assessment of 0% WPI.
RB10
Report of Michael Griffiths, Bio-Medical and Mechanical Engineer and crash investigation specialist, to the insurer’s lawyers
02.08.2022
94
In a covering letter, Mr Griffiths states that, despite not being provided with any pre-incident medical records, “the currently available information provides sound documentation that the ongoing abnormal pathology of the claimant is of a degenerative and/or overuse nature, not acute in its origins”.
In the body of his report, Mr Griffiths says he has never encountered damage to a seatbelt from a rear impact. He opines that, in a rear impact (as in this case), there would not have been any loading of the seatbelt because forces on the claimant would have been rearward, not forward. Mr Griffiths accepts the alternative version of events provided by the insured driver which is evidenced by the offset nature of the damage seen on the rear of the claimant’s vehicle.
Mr Griffiths exhibits photographs of the claimant’s vehicle and photographs of a vehicle similar to the insured truck. He provides a detailed analysis of the crash dynamics based upon the statements made by the claimant and the insured driver. Mr Griffiths then provides a tabular summary of post-incident pathology by date and anatomical region. He observes that medical imaging some six months after the accident reported abnormal pathology consistent with overuse and degeneration, but no abnormal pathology consistent with an acute injury. He then gives a review by anatomical region and states that none of the medical records provided report any abnormal pathology of the back or right elbow. He deduces there may have been some transient neck pain, on the day of the incident, but this has not continued.
Under the heading “Feasibility of a mechanism of injury to the right elbow,” Mr Griffiths says as follows:
“Any forces applied to the claimant’s right elbow would have been rearward, and with a magnitude proportional to the weight of the limb. There is no realistic conceivable means by which an injurious load could have been applied to the elbow”.
Under the heading “Conclusions,” Mr Griffiths says as follows:
· As best as can be determined from the limited medical records supplied, the alleged long-term injuries are in the anatomical regions of his right elbow and his left hand.
· The reports of abnormal pathology in the right elbow described conditions of tendinopathy (lateral epicondylitis) associated with small tears. As described earlier, these are conditions which occur when tendons are overloaded, usually by repetitive motion, from which it is deduced that this would be associated with some recreational or occupational activity.
· In the case of his left hand, the symptoms are attributed to the degenerative osteoarthritis. In terms of any long term outcome, there is no possible means by which this single event could have caused degenerative osteoarthritis.
In a lengthy supplementary report dated 2 August 2022, Mr Griffiths references additional medical documentation provided to him, essentially repeats his earlier findings and concludes that the additional documentation supplied provides further substantiation of:
· the pre-existing degenerative nature of the abnormal pathology described; and
· the inconsistency of the implied crash dynamics and occupant kinematics.
RB12
Report of Dr John Korber, radiologist, to the insurer’s lawyers
08.03.2024
118
Dr Korber reviewed left hand X-ray dated 23 November 2018 and cervical spine CT dated 23 November 2018. Dr Korber says there is no recent fracture of the 5th metacarpal and no evidence of fracture in the hand or wrist. In the cervical spine, there is no evidence of acute injury with neither disc herniation nor fracture seen. Dr Korber does not comment in relation to the right elbow as no relevant diagnostic evidence was provided to him.
Clinical Records and Reports
RB14
NSW Ambulance Report
23.11.2018
134
RB15
Final report of Royal Prince Alfred Hospital
23.11.2018
139
RB16
Certificate of Capacity
23.11.2018
154
RB17
Certificate of Capacity
21.12.2018
157
RB18
Certificate of Capacity
21.12.2018
160
RB19
Records of Royal Prince Alfred Radiology
22.12.2023
163
Criminal Records
RB20
Records from Justice Health
16.04.2021
166
RB21
Records of NSW Police
14.06.2022
301
RB22
Records of NSW Police
23.01.2024
319
Liability Evidence
RB23
Statement of the insured driver
03.03.2022
340
EXAMINATION REPORT
The report of the Medical Assessor Michael Couch is as follows:
“Claimant: Stephen Kewin
Examination: 20 May 2025 over a period of 100 minutes
Assessor: Michael Couch
Mr Kewin arrived quite early for his appointment and explained that he had been driven some three and a half hours from Sussex Inlet to Sydney by his stepfather. He said that for some time he had been living with his mother and stepfather and acting as her carer, because she suffers from quite advanced dementia. The Assessor commenced by clarifying with Mr Kewin the purpose of the Panel re-examination. The following history was obtained directly from Mr Kewin – where there has been reference to documentation provided to the Panel, this has been stated.
Education and Occupational History
Mr Kewin stated that he grew up in Milperra in south-western Sydney and attended East Hills Boys High School. Over the years he had done various jobs, including working as a sales representative and a security officer and bodyguard. He said that in at least one position, he had been in charge of security.
Later in the interview, he described a quite violent upbringing, describing his father as a violent alcoholic and adding that his mother used to beat him with a stick. He said that he also had been a “violent alcoholic, until stopping drinking completely six years earlier. (His history of involvement with the Justice system and incarceration was noted from documentation provided to the Panel, but Mr Kewin was not questioned further about this).
On questioning, Mr Kewin denied any previous significant motor vehicle accidents or injuries in such. He said that he had practiced mixed martial arts for many years, including various competitions, and had suffered some injuries at this, including fracturing his left ring finger “about six times”. He also recalled falling awkwardly on the corner of a tea-chest some 30 years earlier and fracturing a right-sided rib.
History of the Motor Accident
Mr Kewin said that at the time of the accident on 23 November 2018 (some six and a half years earlier), he had been working as a courier driver. He was driving a 27-year-old Toyota Hilux westward along Liverpool Road near the Ashfield shopping strip. He said that he was stationary at traffic lights, waiting to turn right at a fork junction into Thomas Street. He said that a following semi-trailer failed to brake and struck the rear of his utility at perhaps 50-60 km/hr. (He suggested that the driver of the truck was distracted looking at an attractive young woman on the footpath. The other driver’s descriptions of the accident will be reviewed below.)
Mr Kewin added that the Hilux that he was driving was in poor condition and that the owner had previously “made me drive 10 months on bald tyres”. Mr Kewin said that on impact his seatbelt released, stating “on the instant of impact, the seatbelt let go – I saw a silver bit flying across my body…it locked onto my right elbow and then it slid down to the wrist.” He also said that his driver’s seat broke completely free from the utility body and that his feet ended up in the passenger footwell. He recalled “lying back, getting stabbed in the back by the gearstick and handbrake”.
Mr Kewin said he recalled having to disentangle his right hand from the seatbelt to reach the door handle. He tried to open the driver’s door twice, but failed, and the driver of the truck came and opened the door for him. He added that the truck driver “panicked and grabbed my right arm and ripped me out onto the road and also hurt my neck”.
Mr Kewin said that his utility was towed away and written off and added that it had been pushed forward and struck a concrete retaining wall on the far side of the road. An ambulance attended and took him to Royal Prince Alfred Hospital Emergency Department (RPAH).
History of Symptoms and Treatment following the Motor Accident
Mr Kewin stated that he recalled a lot of blood on his left hand. He said that when his vehicle hit the concrete retaining wall, his left hand had struck the dashboard. He also stated “I hit the roof twice after the impact and then I hit the dashboard”.
The ambulance officer’s report stated:
“Ct 56yo male pt, restrained driver of a light utility vehicle struck from the rear at approximately 40 km/hr by a B-double semi-trailer. OA pt seated on sited of road, having self-extricated from vehicle prior to amb arrival. OE pt GCS 15, well perfused, speaking in full sentences. Pt states he was struck from behind by a big truck, has full recall of events, denies LOC. Pt states he looked in the mirror and noticed the approaching impact. Pt complains of generalised lower neck and shoulder pain, consistent with hyperextension from impact. Pt also presents with left-handed knuckle abrasion. Pt otherwise uninjured. Vitally stable with nil change enroute.”
The ED discharge referral from RPAH is from Dr Les Schmalzbach (Emergency Department Registrar). He stated that a hard cervical collar had been applied during transit to the hospital. Under Past History, there was mention of a possible neck injury in motor vehicle accident at the age of 5, not requiring treatment, and “? Old changes noted on C-spine XR aet 45”. Treatment for hypertension was noted.
On examination, the doctor noted midline tenderness at C6 in the cervical spine, with some pain on lateral rotation and no abnormal neurological signs. In the left hand he noted tenderness over the head of the second metacarpal without deformity and some dried blood on the dorsum of the hand, with a probable tiny laceration over the knuckle. No other abnormalities were found on full physical examination.
X-ray of the left hand was reported to show moderate degenerative change at the first CMC and ring finger PIP joints, and a fracture of the fifth metacarpal neck, but no fracture over the second metacarpal (where Dr Schmalzbach found tenderness on examination). Some dorsal soft tissue swelling of the hand was noted (Dr Schmalzbach considered that the reported fracture of the fifth metacarpal neck was probably old and noted that it did not correlate with the clinical picture). CT of the cervical spine showed mild degenerative changes with mild to moderate narrowing of the neural exit foramina at C4/5 and C6 but no fracture.
Mr Kewin was given his antihypertensive medication, a tetanus booster, and a small wound on the left hand was cleaned and dressed. The comment was made: “He is well and we are discharging him – for simple analgesia. We are happy to review as needed. Could CT report be checked please”.
At this Panel re-examination, Mr Kewin painted a rather different picture. He was asked what body area was bothering him most and replied “my whole body – my left hand, back and neck…I signed myself out to get to the bank…I went home and spent the next three months in bed”. He recalled that he was living in Lakemba at that time and also mentioned that he thought he had been pretty fit for his age, and that “I had run to work that day – I’ve not run since”.
He said that his left hand had not been splinted at all and that “they said it was going to be months until the swelling goes down and we can see what is wrong”. He was asked about the report of a fracture of the fifth metacarpal and replied “I don’t think it was from the accident, it could be an old break”. He said he had been aware of several previous hand fractures, adding that when he was a child his mother used to beat him with a 2-foot length of 1-inch dowelling and that his father was “a lot worse!”.
Mr Kewin also recalled initially having pain in his neck and back, commenting that “I was in shock – months later I remembered other things from the accident”. He said that the right elbow had also been painful from the time of the accident but thought this might have been masked by other painful areas.
Describing further treatment for injuries possibly sustained in the accident, Mr Kewin said that the PRP injections to the right elbow by Dr Paoloni, Sports Physician, had definitely helped, especially the third one, which had been about two years earlier. He also said that he had had some injections to his left hand. Mr Kewin said that he had not returned to work at all since the accident some six and a half years earlier, stating that his low back pain was the most limiting factor, but also his left hand.
He said that two years earlier he had moved to Sussex Inlet to stay with his mother and stepfather and care for his mother, who has advanced dementia. He said that it was difficult to leave the house, because he did not trust his stepfather with his mother, and that on one occasion recently, “I got home and found him choking her”. The Assessor asked him who was with his mother while he attended this appointment in Sydney, and he said that his sister was there.
Details of any Relevant Injuries or Conditions sustained since the Motor Accident
When asked, Mr Kewin initially said that he had definitely not sustained any further injuries. He was reminded of the report of a fall in 2019/2020. He then recalled falling at a friend’s house and fracturing his left distal radius – apparently this was treated at Wyong Hospital with a simple plaster cast.
Current Symptoms
Mr Kewin said that the body areas which were bothering him both were his back, neck and left hand. He described symptoms in more detail as follows:
1.Low Back Pain
He described pain, indicating the whole thoracolumbar and lumbar area with his hand. He described constant pain – “non-stop – day and night”. (While describing this, he described his notion that his back muscles had been “completely destroyed by the gearstick”). Back pain is aggravated by bending, stretching or twisting and prolonged postures – he said that he has to keep moving around for some relief. Pain can radiate down to the left calf, but he also stated “and it goes up to my head and behind my eyes”.
2.Neck
Mr Kewin described pain, mainly on the left side. This radiates to the left posterior shoulder. The pain is constant, and all head and neck movements are painful.
3.Left Hand
When describing symptoms in the left hand, Mr Kewin removed a well-used soft neoprene and Velcro-fastened brace. He described pain in the dorsum of the wrist, pointing to this area. Pain is constant. He described weak grip and limited ability to use the left hand. He said that he would not lift a plate of food with his left hand. He also said that the left hand is a different colour to the right – on inspection it did appear to be very slightly redder than the right hand.
4.Right Elbow
Mr Kewin pointed to the region of the olecranon and the medial epicondyle. He denied any paraesthesia in the right upper limb.
5.Right Shoulder
(Right and Left shoulder injuries had been referred to Assessor Kuru for assessment. Mr Kewin had not mentioned either shoulder up to this point of the interview). When the Assessor asked Mr Kewin about his shoulders, he said that he had been sore all over for the first three months after the accident. He had apparently not had any physiotherapy for his shoulders – he said that the physiotherapist had only treated his left hand. On questioning he gave further details:
(a) Right shoulder – Mr Kewin indicated pain from the right ear to the trapezius, radiating out laterally to the shoulder joint. He said that the muscle was very tense and it was painful to elevate his arm.
(b) Left shoulder – Mr Kewin stated that the left shoulder “seems OK”. He localised some pain more medially to the lateral neck, but then said that pain could radiate to the left trapezius and to the shoulder joint. He described pain on elevating the arm above horizontal.
Present Activities
As noted above, Mr Kewin said that he had not returned to work at all since the accident six and a half years earlier. He receives a carer’s pension because he is caring for his mother. He is living with his mother and stepfather in their own home in Sussex Inlet. He said that his principal role is to supervise his parents and to stop his mother going out and wandering. He said that she had quite advanced dementia and had also suffered a head injury when much younger. He said that she thought that she would need residential care soon, although she does still know him. Mr Kewin’s sister, who lives nearby, usually helps their mother shower. She can dress herself. Sometimes Mr Kewin needs to help her with toileting.
His parents receive Veterans’ Affairs benefits and the Department sent someone to look after the yard and lawn. A cleaner also attends. Mr Kewin said that he does not have a car but he can drive his father-in-law’s car, and will sometimes drive to the local shops or Nowra. Shopping is mostly delivered to the home. His married sister lives 500 metres away from their parents and there are no other siblings. He said that his father-in-law had driven him from Sussex Inlet to Sydney for this appointment. Mr Kewin also added that because he needed to supervise his parents, he had “hardly left the house for 18 months”.
Clinical Examination
Mr Kewin attended alone. He presented as a tall quite thin man, at height 182 cm and weight 75 kg, giving a BMI in the healthy weight range at 23. He had a grey beard and grey hair. He had extensive solar damage to exposed areas of the skin and skin was also very dry.
The initial impression was of a genuine and straightforward presentation but he was a somewhat vague and discursive historian. His description of the subject accident was fairly clear although it does differ from some the other driver’s account (see below). He did give a slightly unusual description of some of his injuries – for example suggesting that he had ended up with his back on the gearstick/handbrake, which had damaged his back muscles.
He made a good effort generally, but effort was reduced when testing left upper limb power. Mr Kewin did report unusually widespread tenderness over the whole spine and was restless and withdrew to palpation, particularly over the thoracic spine. Mr Kewin was able to sit during a detailed interview. He undressed to the waist for examination of his upper body and to boxer shorts for examination of the low back and lower limbs. He showed no apparent difficulty climbing off the examination couch, to sit and lie supine.
Cervical Spine
As noted above, Mr Kewin reported moderate tenderness over the whole length of the spine and appeared restless and withdrew to palpation. Tenderness seemed to be maximal over the thoracic area. Trapezius muscles were tense and tender, the right more so than the left. Posture of the cervical spine was within normal limits. AROM of the cervical spine was carefully observed. Flexion was half of normal and extension minimal – when asked to look up, his leant his whole body backwards. Rotation was half of normal bilaterally and lateral flexion one-third of normal bilaterally.
Upper Extremities
As noted above, his skin was very dry – Mr Kewin said that it had always been like that and he thought he had inherited this tendency from his mother. (There was also marked hyperkeratosis of the soles of the feet, with fissuring). There was also extensive solar damage to the exposed areas of the upper limbs. Both hands were quite red in colour. The upper arms measured 30 cm in girth on the right, 29 on the left (Mr Kewin is right-handed). Both forearms measured equally at 25 cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical.
Grip strength in the right hand was strong and within normal limits. Grip strength appeared to be very weak in the left hand but effort was poor. There was no wasting of the intrinsic muscles in either hand. Intrinsic power was normal on the right and effort reduced when testing on the left. Light touch sensation was preserved in both upper limbs and Tinel’s provocation test for carpal tunnel syndrome was negative at both wrists. Power of elbow flexion and extension (pushing and pulling was normal bilaterally – it was noted that Mr Kewin exerted effort on the Assessor’s hand with the distal forearm rather than the hand, explaining that his wrist/hand was sore). (Thus there were no signs of cervical radiculopathy).
AROM of the shoulders was carefully measured with a goniometer with repetition, as tabulated:
Right
Left
Flexion
130°
90°
Extension
60°
40°
Abduction
110°
90°
Adduction
40°
30°
Internal Rotation
100°
100°
External Rotation
90°
90°
Mr Kewin’s responses to impingement testing was equivocal. (The Assessor also noted that the completely normal rotations bilaterally would be unusual in significant rotator cuff disease).
The elbows were normal to inspection. On palpation, Mr Kewin described tenderness over the lateral epicondyle of the right elbow and reported pain in this area on resisted wrist extension (consistent with lateral epicondylitis or tennis elbow). AROM of the elbows was measured with a goniometer as tabulated:
Right
Left
Flexion
150°
150°
Extension
0°
(full)
0°
Pronation
90°
70°
Supination
70°
70°
Mr Kewin reported marked tenderness to palpation over the dorsum of the left wrist and also generally over the left middle finger – the proximal interphalangeal joint (PIP) was enlarged and tender to palpation – Mr Kewin put this down to old fractures. He was also tender over the base of the left thumb. When asked to make a full fist, Mr Kewin said that he could not do this. As noted above, grip strength was very weak, but effort appeared to be poor (possibly limited by pain).
AROM of the wrist was measured with a goniometer as tabulated:
Right
Left
Flexion
70°
20°
Extension
50°
40°
Radial Deviation
20°
20°
Ulnar Deviation
30°
0°
Lumbar Spine
With Mr Kewin standing, posture of the lumbosacral spine was within normal limits. As noted above, he reported some tenderness over the whole length of the spine – this included the lumbar spine but was more marked in the thoracic area. AROM was observed with Mr Kewin standing with knees straight. Flexion was about one-quarter of normal, reaching his fingertips only to the mid-thighs. Extension was minimal. Lateral flexion was half of normal to the right and one-third of normal to the left, with more pain reported. The lumbar paraspinal muscles were palpated while Mr Kewin stood and slowly moved his bodyweight from one foot to the other. When he balanced on the right foot, the right lumbar muscles relaxed fully. When he stood on the left foot, there appeared to be incomplete relaxation, suggesting a degree of guarding.
Lower Extremities
Measured 10 cm proximal to the patella, the right thigh measured 40 cm in girth and the left 39. Both calves measured equally at 36 cm. Ankle jerks were normal and symmetrical. The Assessor was unable to obtain either knee jerk. Both plantar responses were flexor (normal). Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal bilaterally. Light touch sensation was preserved in both lower limbs.
Straight-leg-raising in the supine position was restricted to 30 degrees bilaterally with a complaint of low back pain. However there was no evidence of positive neural tension, and sciatic stretching by passive ankle dorsiflexion did not provoke radicular symptoms. Functionally, Mr Kewin could take a few steps with weight on his forefeet and heels off the floor and then weight on his heels and forefeet off the floor. When the Assessor demonstrated a squat to him, Mr Kewin said that he could not attempt this.
Review of Imaging
Imaging of the cervical spine and left hand is discussed above. The following was also available to the Panel:
·31 August 2015 – X-ray both hands (addressed to a GP in Toronto on the Central Coast):
“Both wrist joints normal. Moderate articular cartilage loss seen in the triscaphe joints bilaterally. There is also osteoarthritis in the left first CMC joint and in the proximal IP joint of the left ring finger. Other joints are well preserved.”
·31 August 2015 – X-ray both hips:
“Left hip joint space is normal. Mild narrowing seen in the superior aspect of the right hip joint. No avascular necrosis or recent fracture.”
In a report from Dr Stephen Rimmer, Orthopaedic Surgeon, dated 10 May 2002, he summarised imaging provided to him:
“X-ray left hand dated 14 May 2019 reports degenerative osteoarthritis of the first carpometacarpal joint”.
“Ultrasound right elbow dated 14 May 2019 reports tendinopathy common extensor tendon”.
“MRI scan of the right elbow, dated 14 May 2019 reports severe common extensor origin tendinopathy.”
“MRI scan of the left wrist, dated 2 August 2019 reports degenerative osteoarthritis of the first carpometacarpal joint.”
A/Prof Justin Paoloni, Sports Physician in a report to Dr Rifi, dated 5 August 2019 wrote:
“Reports of right elbow MRI showed common extensor origin intrasubstance tear.
MRI left wrist shows severe first carpometacarpal (CMC) joint osteoarthritis, moderate scaphotrapezio-trapezoid (STT) joint osteoarthritis and wrist triangular fibrocartilage complex (TFCC) perforation”.
Among the Justice Health and Forensic Mental Health network documentation provided to the Panel, there is report of CT of the left wrist without contrast, dated 1 October 2020.
“Findings: There is a healed, posteriorly angulated distal left radial fracture with material periosteal reaction, more marked posteriorly. There is mild posterior subluxation of the lunate. Are there any scaphoid joint has normal alignment (sic). The distal radioulnar joint is preserved. No evidence of distal ulnar fracture or other acute fracture is seen.
There is osteoarthritic change at the first CMC joint characterised by the complete loss of joint space, subchondral sclerosis, geode formation and osteophytosis.
Conclusion: Chronic healed posterior angulated distal left radial fracture”.
Review of Documentation
Records from the attending ambulance officers and RPAH are summarised above.
The Panel was provided with more than 1200 pages of documentation. The following parts are considered especially relevant.
Statement dated 3 March 2023 from Rohan Malcolm, aged 34, truck driver, apparently provided for GIO Insurance.
This description differs from the account given to Assessor Couch at this re-examination. He stated that he was driving his Freightliner Argosy with one container trailer containing two empty containers at 40 km/hr. He stated that he was approaching the intersection between Liverpool Road and Thomas Street and that cars were overtaking him on the left and coming back into his lane. He stated:
23.“This Toyota Hilux overtook me on the left and he came into my lane straight in front of me and he was going to turn right into Thomas Street. There was traffic coming towards him and he did not have time to get around and just jammed his brakes on. I can’t remember if he had indicated but when he came up the inside and drives straight in front of me and suddenly stopped, I had no time at all to stop and I did brake but not sufficiently enough.
24.I only had time to react and looked into the rear view mirror to make sure there was no-one else coming up on my left and I swung left to try to avoid him, but the front right side of the bull-bar of the truck caught the left rear taillight of the Hilux and his car rolled forward a bit and he stopped.
25.I stopped in the left hand lane and put my hazard light on. I do not remember all the details now, because it was a long time ago, but I was sitting there and then I went up to him, to make sure he was alright. He said he was okay and I don’t remember all what he said but I do remember making sure he was alright and not injured and he was just sitting in his car.
26.I waited for the police to come. I don’t know who called them. When the police arrived they told me they only took a statement if someone was injured or there was a lot of damage and they breath-tested me and it was negative. The police left and I have never heard from them since.”
During the Panel re-examination, Mr Kewin spontaneously commented on the truck driver’s account of the accident, saying that because his utility was old and poorly maintained and he considered it unsafe, he could not possibly have suddenly overtaken the truck as described and pulled in front of it.
In the insurer’s submissions, dated 20 August 2024 on Page 16, there is a photograph of the rear of a white utility, YPY-4TR. This has some netting draped over the left half of the tailgate and a moderate indentation just to the right of the tailgate handle, with an almost vertical line extending from top to bottom of the tailgate. The bumper bar and numberplate just below the tailgate also appear to be deformed. There also appears to be damage to the near side rear corner of the utility with body work bending outwards and absent/broken taillights on that side.
To the Panel, this damage appeared to be consistent with a moderately heavy impact. However, the Panel does not know if the deformation of the tailgate occurred in this accident or not-the broken left taillight is consistent with the truckdriver’s statement. The near vertical line would possibly be consistent with impact from the truck’s front bull-bar. The vehicle also appears to be stopped on the left side of the road, rather than lodged against a concrete retaining wall on the far side of the road.
In the insurer’s submissions, close to this photograph, is noted:
“17. The insurer submits the above demonstrates minimal damage, with the accident clearly that of a rear-impact. Therefore there ought to be questions raised as to ‘how the claimant could plausibly have sustained the hand and elbow injuries alleged’.”
(With respect, the Panel suggests that the deformity seen of the utility tailgate, if it occurred in this accident, was rather more than minimal.)
Central Coast GP records
X-rays of both hands and both hips from August 2015 are referred to above. Following this, in September 2015, Dr Chalapathy of Toronto Doctors referred Mr Kewin to Mr Stuart MacKenzie at John Hunter Hospital, enclosing the above-mentioned X-ray results and stating:
“Thank you for seeing this patient who is complaining of a lot of arthritis pain in his hips and hands…”
A Centrelink medical certificate from the same doctor, dated 2 September 2015, certified Mr Kewin totally unfit for work on a permanent basis, because of pain in both hands, wrists and hips.
At what appears to be his first attendance at Wyong Village Medical Centre on 24 October 2016, Dr Khalil stated that Mr Kewin was living with a friend in Wyong and that his son was in jail after attacking him. He recorded:
“Joint pain all over. More on the neck/Rt shoulder/Lt hand. Both hips. Both hands. Pain s/Lt thumb. Memory problems since fight with the son. Did not lose consciousness.” He was prescribed the anti-inflammatory, Voltaren.
Records from Belmore Medical Centre
Mr Kewin appeared to first attend there in July 2018, apparently attending with his wife with a URTI and mention of circulation problem in his legs. He attended again on 21 August 2018 with sinusitis and dental decay.
The first entry after the subject was with Dr Islam on 29 November 2018 (six days after the crash):
“Reason for contact: Workers' compensation. Note – attended to RPA after the motor vehicle accident. O/e mild restricted ROM in his neck. L dorsal hand is mildly swollen. Hand grip weak.”
Tenderness in the hand was present. A SIRA certificate of capacity/certificate of fitness was issued by Dr Islam on the same date, diagnosing “MVA – neck strain; bruised L hand”. It stated that he was a courier driver and had been struck by a semi-trailer from behind, and that injuries were consistent with the patient’s description of cause. He was certified unfit for work for the next week.
The first mention of the right elbow was by Dr Rifi one month after the crash, on 28 December 2018, when he recorded:
“He tells me that he also injured right elbow laterally in the same accident, on impact seatbelt broke (he told the owner of the Toyota Ute, the car he was in when the accident happened, told his boss four weeks earlier that the seatbelt needed to be changed as was supported/bolted in the floor but the end of the belt was taped with sticky tape), this caused his right elbow to hit side of door. Very painful lateral epicondyle, dorsiflex clenched fist causes exquisite tenderness lateral elbow (right-handed).” He was prescribed Naprosyn tablets and Voltaren Emulgel to apply to the elbow.
On 1 February 2019, Dr Rifi recorded,
“Still gets pain left wrist, right elbow, discussion reg using Panamax, seeing physio, trial RTW, light duties, automatic rather than manual car, etc…”
He was apparently given a WorkCover certificate to return to work for four hours twice a week.
Four months after the accident, on 13 March 2019, Dr Rifi mentioned contact from Konekt Rehab Services. Dr Rifi recorded:
“Neck still painful and lower back annoys him but ‘I can deal with that’. Most of his discomfort now is where the seatbelt trapped his right elbow and forearm, the car was in 45 degree angle at the time of the accident, hit the concrete wall and the seatbelt caught his right arm and swung the arm against the chassis of the car and so far the right elbow hurts him. Left base of thumb is still tender to palpation…”.
Dr Rifi added that he was willing to return to work and was still certified fit to work four hours, two days a week, but his employer did not have suitable duties.
Associate Professor Justin Paoloni, Sports Physician – 2 July 2019.
Dr Paoloni wrote to Dr Rifi, mentioning initial cervical and lumbar back pain, right elbow pain, left wrist pain and hand pain. He stated that he continued to have right lateral elbow pain with gripping or lifting activities and pain in the dorsum of the left wrist, at base of thumb and left index knuckle. He stated that:
“Reports of right elbow MRI show common extensor origin intrasubstance tear. X-ray left hand reported as showing first carpometacarpal (CMC) joint osteoarthritic changes.”
He recommended left wrist MRI scan and platelet rich plasma (PRP) injections to the right elbow.
More recently a SIRA certificate of capacity/certificate of fitness from Dr Islam, dated 20 January 2021 certified Mr Kewin completely unfit for work for the following months because of: “MVA/neck strain; chronic L hand pain and R-sided epicondylitis”.
Previous PIC Certificate from Assessor Adam Rapaport, dated 29 May 2024
The same list of injuries was referred to Assessor Rapaport, as to Assessor Kuru. He certified that the only injuries caused by the subject motor vehicle accident were a soft tissue contusion injury with abrasions of the left hand, and soft tissue whiplash injury to the cervical spine. He stated that they had resolved and therefore no assessment of Permanent Impairment was required. He determined that the remaining injuries to both shoulders, both elbows, left wrist and lumbar spine were not caused by the accident.
Panel Conclusions Following Re-Examination and further discussion at two further Teleconferences
1. Stephen Kewin is a now 63-year-old man who describes a difficult and violent upbringing. He describes a variety of previous jobs and self-described himself as a “violent alcoholic” in the past. He is divorced and single and for the past few years has variously lived in the NSW Central Coast, western Sydney and more recently in Sussex Inlet, where he is the carer for his mother, who suffers from dementia.
2. A full lifetime occupational history has not been made available. The Panel notes that in 2015 he was certified unfit for work for Centrelink purposes, because of arthritis in his hands, wrists and hips. Subsequently he apparently worked as a courier driver in Sydney prior to the subject accident in November 2018. He has not worked since then.
3. Mr Kewin himself described the rear-end crash when his utility was hit by a much larger semi-trailer, as quite violent. If his description is correct, the Panel considers it is possible that his right elbow was injured by the failed seatbelt and/or striking the inside of the vehicle. The description by the truck driver is quite different and suggests a fairly minor rear-end collision, with Mr Kewin not obviously appearing to be injured afterwards. The photograph of the utility seen by the Panel suggests a moderate rear-end impact, consistent with the bull-bar of the truck striking and bending the tailgate-if the tailgate was in fact damaged in this accident. A police report would have been very helpful to the Panel. The Factual Report dated 17 March 2022 from MCM Corporate Risk Services did not add further useful information about the crash
4. After considerable discussion, and in the absence of an independent contemporaneous decription of the accident (such as from Emergency Services), the Panel preferred the truck driver’s description of the accident and damage to Mr Kewin’s utility
5. The report of Michael Griffiths, Bio-Medical and Mechanical Engineer of Road Safety Solutions dated 1 June 2022, in relation to Mr Kewin’s decription of the accident, stated: “the photograph depicting the limited extent of the damage to the rear of the utility does not depict the energy exchange of sufficient magnitude to cause the vehicle movement and damage described”. Mr Griffiths also stated that he had never encountered damage to a seatbelt from a rear impact. Later he concluded: “There is no realistic conceivable means by which an injurious load could have been applied to the elbow”
6. The two Medical Assessors on the Panel considered possible causation mechanisms for a common extensor tendon tear in an accident. These would either be a strong direct blow to the lateral elbow, or forced passive flexion of the wrist. Even if the Panel accepted Mr Kewin’s description of movements after the crash (which it does not),, the Assessors did not consider that such forces would have been applied
7. The Medical Assessors also point out that lateral epicondylitis (“tennis elbow”) is very common in the general population, and even more so in midlle-aged manual workers. Further, an intra-substance tear of the common extensor tendon seen on imaging is frequently part of this degenerative condition. The description of “tear” does not imply an acute injury or trauma.
8. There is clear documentation from RPAH, and six days later from Dr Rifi GP, of a whiplash injury to the cervical spine and a soft tissue injury and minor abrasion to the left hand/wrist. Dr Rifi first mentioned the right elbow one month after the accident. The records suggest that whatever causation, the elbow became quite persistently troublesome, and he was subsequently treated by A/Prof Paoloni, Sports Physician. MRI is said to show an intrasubstance tear of the common extensor tendon.
9. None of the other injuries (lumbar spine, right and left shoulders) appear to be mentioned by treating practitioners. The Panel considers it more probable than not that symptoms in these areas and abnormal signs found at the Panel re-examination are due to underlying degenerative change rather than being caused by the accident. In any case, injuries to the lumbar spine, right shoulder and left shoulder would be classified as threshold.
10. Cervical spine – the Panel accepts causation for a whiplash injury to the cervical spine. At the Panel re-examination, signs were consistent with whiplash associated disorder Grade II (WAD-II). There was no evidence of radiculopathy and this is a threshold injury.
11. Left wrist and hand – the clinical signs and imaging point to an aggravation of pre-existing (and documented) degenerative osteoarthritis in the hand and wrist. The history of a distal radius fracture subsequent to the accident in 2020 is also noted. These injuries, while possibly still causing symptoms, are threshold injuries.
12. Right elbow – the main issue here is causation. The Panel also notes that lateral epicondylitis (tennis elbow) is a very common condition in the general population, and an intrasubstance tear of the common extensor origin may form part of the underlying degenerative enthesitis.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Panel adopts the examination findings and reasons of Medical Assessor Couch with which Medical Assessor Barnsley agrees.
[6] Section 7.26(6) of the Act
The Panel is not required to choose between medical opinions and is required to form its own opinions.[7]
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31
As regards the biomechanical engineering evidence, the Panel accepts that it is a matter of common sense that the nature and speed of the impact may affect the extent of the injuries sustained. See per Principal Member John Harris in Allianz v Sarofim.[8] Whilst biomechanical engineering experts may purport to express opinions as to causation of injuries, in the circumstances of the particular case, the issue of causation of injury ultimately is a matter for the Panel.[9]
[8] Insurance Australia Insurance Limited v Sarofim [2024] NSWPICMA 346
[9] Motor Accidents Authority of NSW v Mills [2010] NSWCA 82
The Medical Assessors have explained the basis for their assessments and findings.
For the reasons stated, the Panel is satisfied, as a matter of medical determination, and as a matter of non-medical factual determination, that the claimant did not suffer injury to the lumbar spine, left shoulder, right shoulder, and right elbow, in the subject accident. The Panel notes that Medical Assessor Rapaport made similar findings.
CONCLUSION
For the above reasons, the Panel concludes the Certificate dated 29 November 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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