Mallia v Allianz Australia Insurance Limited
[2023] NSWPICMP 364
•31 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mallia v Allianz Australia Insurance Limited [2023] NSWPICMP 364 |
| CLAIMANT: | Josephine Mallia |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Lesley Barnsley |
| DATE OF DECISION: | 31 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 3 October 2020; the dispute related to the assessment of permanent impairment of injuries to the cervical spine, lumbar spine and both shoulders; claimant re-examined; panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; Held – claimant assessed at 7% permanent impairment for the physical injuries; original assessment revoked. |
| DETERMINATIONS MADE: | CERTIFICATE The Review Panel revokes the certificate dated 21 September 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%: · right shoulder; · cervical spine, and · left shoulder. |
STATEMENT OF REASONS
INTRODUCTION
Josephine Mallia (the claimant) suffered injury in a motor accident on 3 October 2020 near Campbelltown. The claimant was travelling home on a bus with her loaded shopping trolley. She pressed the buzzer indicating that she wished to alight at the next stop. The bus driver belatedly applied the brakes forcefully as he was passing the claimant’s designated stop. The claimant was standing in the disabled sitting area close to the front of the bus. As the brakes were applied forcefully, the claimant was thrown backwards, onto the floor of the bus, striking her head in the process. The claimant complained of pain in her neck, right shoulder and the top of her head.
Allianz (the insurer) insured the owner and/or the driver of the bus for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act2017 (the MAI Act).
The issue presently in dispute is the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including the degree of permanent impairment of the injured person that has resulted from injury caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor, pursuant to s 7.20 of the MAI Act and pursuant to s 7.26 of the MAI Act, on review by a Review Panel.
The dispute was referred to Medical Assessor Adam Rapaport who issued a Medical Assessment Certificate dated 21 September 2022. Medical Assessor Rapaport concluded that the following injuries WERE caused by the motor accident:
· supraspinatus tear – right shoulder;
· musculo-ligamentous – soft tissue injury to the cervical spine, and
· soft tissue to the lumbar spine.
Medical Assessor Rapaport found that the claimant did not suffer a cervical disc prolapse caused by the motor accident. He also found that the soft tissue injuries to the cervical spine and the lumbar spine had resolved. Medical Assessor Rapaport found 8% whole person impairment from the right shoulder resulting from the motor accident.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original Certificate for the medical assessment for which the review is sought.
The claimant sought a review of Medical Assessor Rapaport’s Certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. They are as follows:
· Medical Assessor Rapaport records dysmetria in the cervical spine but fails to find 5% whole person impairment (DRE II), which is mandated by Table 6.7 of the Motor Accident Guidelines (the Guidelines);
· Medical Assessor Rapaport failed to document the range of motion in the lumbar spine, contrary to the Guidelines, resulting in his misapplication of the MAI Act and Guidelines;
· Medical Assessor Rapaport failed to provide adequate reasons for finding that the cervical spine injury has resolved, contrary to the history taken from the claimant, and
· Medical Assessor Rapaport failed to properly record the range of movement in the right shoulder, which should have been 15% UEI or 9% WPI, rather than 8% WPI, as found.
The claimant’s application for review was opposed by the insurer. It addressed each of the matters raised by the claimant. Neither party challenged the findings made by Medical Assessor Rapaport on causation of the accident-related injuries found.
President’s delegate Tami O’Carroll issued a Determination of an Application for Review of a Medical Assessment on 20 December 2022 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:
“On examination of the cervical spine, at page 5 of the Certificate, the assessor records:
Forward flexion of the cervical spine was 3/4 and cervical spine extension was 2/3.
The assessor goes on to find that musculo-ligamentous soft tissue injury to the cervical spine was caused by the accident, but at page 9 of the Certificate, the assessor states this injury has resolved. It does not appear that the assessor set out the part of reasoning that led him to that opinion. The assessor does not comment upon the findings on clinical examination as set out above or the history of ongoing symptoms reported by the claimant.”
Considering the above and having regard to the particulars set out in the Application, the President’s delegate was satisfied there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The terms of the Permanent Impairment (Review) to be conducted by the Panel are as follows, injuries:
· Body area: shoulder;
· Injury description: right shoulder – full thickness tear and soft tissue injury;
· Body area: lumbar spine;
· Injury description: lumbar spine – soft tissue injury;
· Body Area: cervical spine, and
· Injury description: cervical spine disc prolapse/soft tissue injury.
STATUTORY PROVISION
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Medical Assessor. (s 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 proceeding solely based on the written application (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. (s 7.26(6) of the MAI Act).
All members of the Panel had no previous involvement with the claimant or with this matter.
The claimant was assessed by Dr Jonathan Herald at the request of the claimant’s solicitors. The claimant was assessed by Dr Murray Hyde-Page for the insurer. Both medical specialists found 10% whole person impairment in the right shoulder arising from the motor accident. The Panel invited the parties to indicate if that assessment of the right shoulder was accepted for the purpose of the review. As neither party replied to that invitation, the Panel proceeded to assess the claimant’s right shoulder, as well as the cervical and lumbar spines.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following medical material:
· report and whole person impairment assessment dated 23 September 2021 by Dr Jonathan Herald;
· Certificates of Capacity (various States) provided by Dr Magdy Girgis;
· Allied Health recovery request (various States) provided by Minh Pham, and
· report dated 12 October 2020 of right shoulder ultrasound and cervical spine X-ray provided by Dr Michael Liu.
The insurer relied upon the following medical material:
· clinical notes of Royale Medical Centre;
· clinical notes of Sa-Cordero Medical Practice, and
· report dated 30 November 2021 by Dr Murray Hyde-Page, orthopaedic surgeon.
The Panel has read all that material. Relevant portions are referred to in the RE-EXAMINATION section of these Reasons.
RE-EXAMINATION
The re-examination was conducted by Medical Assessors Chris Oates and Les Barnsley on 15 June 2023 in person at the Commission’s Medical Suites. The findings and reasons of the medical assessors are set out below:
“JOSEPHINE MALLIA
Ms Mallia attended unaccompanied on 15 June 2023 and was assessed by Medical Assessor Barnsley and Medical Assessor Oates, as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Ms Mallia is 72 years old and in receipt of an aged pension. She lives alone in a Housing Commission home unit in Campbelltown. She has three living adult children, all of whom live nearby.
Prior to passing onto the aged pension, she was on a disability support pension from 1993, after developing severe anxiety and depression when her 20-year-old son died at work, as a result of a gas cylinder explosion.
She is on medication for high blood pressure, high cholesterol, type 2 diabetes mellitus. She has had no previous injuries to the neck, shoulders or back. She does have symptomatic arthritis in the base of the right thumb. She had a hysterectomy about 19 years ago. She had four children but lost one as an adult following an accident. She had been on an anti-depressant medication before this time and the dose was increased after this event. She currently takes Deptran for anxiety at night.
She is right hand dominant.
History of the motor accident
Ms Mallia said on 3 October 2020, she was a passenger on a local bus and had a shopping trolley filled with groceries. She was on her way home and pressed the call button to get off at the next stop. The bus driver forcefully applied the brakes whilst she was standing waiting to alight. She had been sitting in the disabled seat close to the front of the bus and was intending to leave the bus through the front door.
When the brakes were forcefully applied, she was thrown backwards towards a corner “hump” near the front seat, where she became wedged. Her shopping trolley and groceries were thrown down the central aisle of the bus. As she was thrown backwards, she hit her head and ended up on her back on the floor of the bus. She was dazed but was not knocked out.
She was helped to her feet by other passengers, who gathered her groceries and replaced them in the trolley which they put on the footpath. Once she was safely off the bus, she phoned her daughter who came from a nearby suburb and drove her home.
History of symptoms and treatment following the motor accident
The accident occurred on Saturday of a Labour Day weekend. She noticed immediate right shoulder, neck, back and head pain but doesn’t recall any lacerations or bleeding. She did have a lump come up on the back of her head. She noticed tingling down the right arm to the forearm. No police or ambulance attended the accident.
She saw her then GP, Dr Corderio, Campbelltown, on the Tuesday following the long weekend. Subsequently, she said she had a dispute with the practice manager, who was doctor Cordeiro’s wife, and she stopped attending that practice. She subsequently saw Dr M Girgis, general practitioner at the Royale Medical Centre, Campbelltown.
The GP ordered an ultrasound scan of the right shoulder and x-ray of cervical spine, which were done on 12 October 2020. The ultrasound showed a high-grade partial-thickness tear of supraspinatus tendon and the x-ray of cervical spine showed multi-level degenerative changes.
Ms Mallia stated she had headaches for about two months after the accident. She was treated with Mobic and Panadeine Forte. She had a course of physiotherapy with multiple treatments to the cervical spine and shoulder, which did not aid in her recovery. She also saw a chiropractor, Ms C Doe, for six months for further physical therapy and the chiropractic did not help much either.
She continued on medications thereafter.
Her GP, Dr M Girgis, then ordered an MRI scan of the right shoulder but this did not proceed because Ms Mallia suffers from claustrophobia.
She estimates she last saw Dr Girgis regarding the accident in April 2021.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
She has intermittent pain in the apex of the right shoulder, particularly when she tries to use the right arm actively. It will radiate down the arm to the mid-forearm. She has good days and bad days, averaging about 2-3 symptomatic bad days per week. She feels pain in the shoulder when hanging washing on the line and mopping the floor, vacuuming and sweeping. She has difficulty lifting her arm above shoulder height.
She has constant discomfort in the centre of the back of the neck but the severity varies and again she has good days and bad days. The neck is made worse with vacuuming. She has intermittent tingling from the right shoulder to the distal forearm about once a month. It does not travel into the hand.
She has low back pain, with about three pain days per week and the other days pain-free, to the left of the mid-line from L3 to L5. She can’t bend down much and can’t stretch. She doesn’t have any radiating symptoms to the lower extremities. The back pain radiates to the left hip. She also notices pain in the base of the right thumb.
Current and proposed treatment
She continues Mobic 15mg one daily. She did try doing exercises from the physical therapy practitioners but they made the pain worse, so she ceased. The GP she currently attends, Dr Hasn, does not know anything about the accident. She attends him for general medical problems.
CLINICAL EXAMINATION
General presentation
She was able to sit comfortably and rise to the erect position, and stand on her toes but had difficulty standing on her heels. Trendelenburg test was negative bilaterally.
She showed overt pain behaviour with pain inhibition, that is limiting active movements for fear of causing more pain.
Cervical spine (cervicothoracic)
There was no guarding or muscle spasm. The complaints radiating to the right upper extremity did not follow a spinal nerve root distribution and are not considered to be non-verifiable radicular complaints. There was no dysmetria. Active flexion and extension were both one-half normal range, rotation two-thirds of normal range bilaterally, and lateral flexion one-third normal range bilaterally.
Reflexes were brisk and symmetrical, power was normal in the lower limbs, and sensation was said to show global partial decrease to light touch in the entire right arm, which is non-dermatomal. There were no CRPS features.
There were osteoarthritic changes at the right 1st metacarpophalangeal joint and bilateral carpometacarpal joints of the thumb at the DIP joints, with Heberden’s nodes in the right second and third digit.
Upper arm girth at 10cm above the elbow crease: right 29cm, left 30cm. Forearm girth at 10cm below the elbow crease: right 25cm, left 24cm – consistent with stated right-hand dominance.
Lumbar spine (lumbosacral)
The lordosis was preserved. There was tenderness L3 to L4 centrally. There was no guarding or muscle spasm. There was no dysmetria. There were no non-verifiable radicular complaints. Active flexion and extension were both one-half normal range. Lateral flexion was one-half normal bilaterally.
Reflexes were brisk and symmetrical and plantar responses were both flexor. Sensation was normal in the left lower limb and in the right lower limb was said to show a stocking global distribution loss on the right lower limb which was non-dermatomal. Power; right equals left.
Straight leg raising 50° bilaterally with negative stretch test bilaterally. Calf girth: right 33cm, left 34cm at 10cm below the inferior patellar pole. Thigh girth: right equals left equals 42cm at 10cm above the superior patellar pole.
Upper Extremity
The height of the trapezial ridge was lower on the right compared with the left, with some right supraspinatus muscle wasting and decreased right scapular movement on right shoulder abduction.
Tinel’s sign was negative at both wrists.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion 60°, 70°, 40°
(said to be limited by shoulder pain)
150°, 130°, 150° Extension 50°, 60°, 50° 60°, 60°, 60° Adduction 0°, 20°, 0° 50°, 20°, 20° Abduction 90°, 90°, 90° 110°, 150°, 110°(said to be limited by neck pain) Internal rotation 50°, 80°, 60° 90°, 90°, 90° External rotation 50°, 30°, 50°
(with arm by side)
30°, 50°, 70°
(with arm by side)
(said to be limited by neck pain)
Comments on consistency
There was significant inconsistency in active range of movement in the right and left shoulders in most planes of movement. The Medical Assessors asked the claimant for an explanation and she said it was because of variable amounts of pain. The Assessors asked whether she was worried about being hurt by the physical examination and she said she was not.
SUMMARY OF RELEVANT RADIOLOGICAL AND MEDICAL IMAGING AND OTHER INVESTIGATIONS
12 October 2020 – Right shoulder ultrasound – Suspected high-grade partial tear of supraspinatus tendon but remainder of rotator cuff normal. No significant subacromial bursal thickening. Possible degenerative irregularity of AC joint.
12 October 2020 – Cervical spine x-ray – Multi-level mild to moderate bilateral neural exit foraminal narrowing secondary to uncovertebral osteophyte encroachment with signs of degenerative cervical spondylosis. No fractures.
The Medical Assessors reviewed the films and agreed with these reports.
OPINION
Diagnosis
Right shoulder – soft tissue injury, specifically partial thickness supraspinatus tear – demonstrated on ultrasound scan.
Lumbar spine – soft tissue injury.
Cervical spine – soft tissue injury, with exacerbation of pre-existing asymptomatic mild to moderate degenerative changes – the latter were demonstrated on X-ray.
The panel note that the list of injuries referred for assessment included the phrase “Cervical Spine disc prolapse/soft tissue injury”. The Panel considers that the correct diagnosis for this lady’s cervical spine injury is soft tissue injury to the cervical spine. The diagnosis of cervical disc prolapse is only able to be determined through cross sectional imaging such as CT or MRI scanning. The Panel were not provided with any such imaging. Moreover, the diagnosis of cervical disc prolapse, even if confirmed on imaging studies, does not alter the WPI assessment of a cervical spine injury in the absence of a matching radiculopathy. Specifically, the relevant guides in section 6.120 and 6.121 state:
“The assessment should include a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual’s current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports.
While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs.”
Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category.
There is no evidence of a cervical disc prolapse. This lesion is demonstrated on CT or in more detail on an MRI scan, neither of which Ms Mallia has had. A plain X-ray diagnosed degenerative disc disease but it cannot show soft tissue detail such as disc prolapse. Additionally, there is no evidence on examination of cervical radiculopathy or non-verifiable radicular complaints which could occur if a cervical disc prolapse was present and causing cervical nerve root irritation.
Causation
After reviewing the evidence, the Panel decided that the accident was a cause of injury to the right shoulder, lumbar spine and cervical spine because these conditions are referred to on the PICF dated 22 October 2020 and the accompanying medical certificate dated 23 October 2020.
There was no history given by the claimant or evidence on file of any pre-existing injury or symptoms affecting the injured parts.
The injuries sustained are consistent with the mechanism of the accident described as a heavy fall on to the right side of the body, including a head strike when there was sudden deceleration of the bus in which the claimant was standing, whilst waiting to alight.
The clinical examination findings and history taken at the Panel re-examination indicate that the cervical spine, lumbar spine and right shoulder are still intermittently symptomatic.
Impairment
The clinical examination findings of the cervical spine show clinical differentiators which place her in DRE Category I giving 0% whole person impairment.
Specifically, there is no dysmetria, no non-verifiable radicular complaints, no radiculopathy, and no guarding.
For the lumbar spine, the examination findings show clinical differentiators which place her in DRE Lumbosacral Category I giving 0% whole person impairment.
There is no dysmetria, no non-verifiable radicular complaints, no guarding or spasm, and there is no lumbar radiculopathy.
Assessment of impairment arising from the shoulders:
The Panel noted that there were considerable inconsistencies between the three measurements of shoulder movements recorded with the goniometer and documented in the table above. The Panel therefore considered the following sections of the Motor Accident Guidelines.
6.50 (d) If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation.
6.50 (e) if Range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion into considering what weight to give other available evidence to determine if an impairment is present.
6.24 A condition may be present that is not covered in these Guidelines or the AMA 4 guides. If objective clinical findings of such a condition are present, indicating the presence of an impairment, then assessment by analogy to a similar condition is appropriate. The medical assessor must include the rationale for the methodology chosen in the impairment evaluation report.
The Panel used the analogous condition of impairment from joint crepitation of the acromioclavicular joint, because this condition is the closest condition which would cause similar impingement restrictions.
An ultrasound scan of the right shoulder shows a partial thickness tear of the supraspinatus tendon. This lesion could cause a similar effect on limiting active elevation and rotation range of motion through impingement.
At the right shoulder, AMA 4th Edition Guidelines to the Evaluation of Permanent Impairment, Table 19 severe joint crepitation is 30% joint impairment. In table 18, the maximal AC joint impairment is 25% upper extremity. 30% of 25% is 7.5%, rounded to 8% UEI, equivalent to 5% WPI. (Table 3, page 20).
The left shoulder ROM was said to be limited by neck pain, and is potentially assessable under Nguyen, but owing to inconsistent active ROM is assessed by an analogous condition, similar to the right side.
AMA 4th Edition Guidelines to the Evaluation of Permanent Impairment, Table 19 mild crepitation is 10% joint impairment, noting the lesser restriction on the left side on examination of active ROM. 10% of 25% is 2.5%, rounded to 3% UEI, equivalent to 2% WPI.
Combined WPI
Body Part or System
AMA4 Guides/ Guidelines References (chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1
Right shoulder
AMA4 Ch3 T.3, p.20; T.18, p.58; T.19, p.59
Guidelines versión 9.1. 6.24, 6.40, 6.41, 6.50, 6.57
Yes
5
0
5
2
Cervical spine and Left shoulder (Nguyen)
AMA4 Ch3, 3.3h p.103 T.73, p.110 DRE I
T.3, p.20; T.18, p.58; T.19, p.59
Yes
2
0
2
3
Lumbar spine
AMA4 Ch3, 3.3g p.102 T72 p.110 DRE I
Yes
0
0
0
Combining 5% by 2% by 0% (cervical spine) by 0% (lumbar spine) gives 7% WPI.
Note – I have included the left shoulder in with the cervical spine in the above table, because the impairment arises from there, rather than a discrete shoulder injury.”
FINDINGS
The Panel conducts a new assessment of all the matter with which the medical assessment is concerned. (s 7.26(6) of the MAI Act). The Panel adopts the extensive reasons of the joint examination findings of the two Medical Assessors.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Limited v Marsh [2021] NSWCA 31. The Medical Assessors have explained the basis of their assessment which are different from those provided by other specialists. The medical assessment of permanent impairment is undertaken at the time of the examination. In that respect, the previous assessments are outdated and do not reflect current symptomatology.
CONCLUSION
For these reasons, the Panel concludes that the Certificate issued by Medical Assessor Rapaport is revoked. The new Certificate is attached at the commencement of these Reasons.
0
2
0