Malta v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 333
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Malta v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 333 |
| CLAIMANT: | Salvatore Malta |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was a driver in a stationary car hit from behind; injuries reported to neck, spine left knee and right shoulder; Motor Accident Injuries Act 2017; Held – claimant’s injuries caused by the motor accident and give rise to a permanent impairment which is not greater than 10%; soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, and rotator cuff injury to the right shoulder; claimant’s left knee injury not caused by the motor accident; claimant first complained of left knee some three or four months after the motor vehicle accident; claimant’s delay in left knee presentation not medically consistent with soft tissue injury from direct trauma of the subject accident; original medical certificate set aside; review panel issued a new certificate. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 6 April 2022. · cervical spine – soft tissue injury; · right shoulder – rotator cuff tear, and · scaring to right shoulder. The Panel finds the following injuries were not caused by the motor accident and do not give rise to a permanent impairment: · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury, and · left knee – soft tissue injury. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 9 March 2018 Mr Salvatore Malta (the claimant) was the driver of a Toyota car which was stationary at the intersection at Enfield. Mr Malta’s car was hit from behind. Mr Malta reported that he was wearing his seatbelt and that the airbags in his car did not deploy. Police and ambulance services did not attend the accident. Mr Malta was able to drive his car home when it was later repaired.
Mr Malta reports that he sustained the following injuries in the accident:
(a) cervical spine;
(b) thoracic spine;
1. (b) lumbar spine;
2. (d) right hand, wrist, elbow and shoulder;
3. (e ) left knee, and
4. (f) psychological injuries.[1]
[1] Claimant's bundle AD page 1.
Mr Malta has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
NRMA Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Malta under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Malta as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
The dispute as to permanent impairment was referred to Medical Assessor Ian Cameron. He assessed Mr Malta on 29 March 2022 and issued a certificate dated 6 April 2022.
Mr Malta has sought a review of the certificate of Medical Assessor Cameron.
REVIEW PROCEDURE
[2] Section 7.20 of the MAI Act.
An application for review of the Medical Assessment of Medical Assessor Cameron was lodged on 27 April 2022 within 28 days of the date on which the certificate of owas made available to the parties on 6 April 2022.
On 7 June 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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 new 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 (the Commission). Accordingly, the President’s Delegate referred the matter to this Panel to assess.
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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
RELEVANT LEGAL AUTHORITY
[3] Rule 128 of the PIC Rules.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
In summary, the Guidelines require that Medical Assessors be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. When assessing injuries it is necessary to verify both of the following. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination. This therefore involves a medical decision and a non-medical informed judgement. The Medical Assessor, or Panel, need to be persuaded that there is a medical and factually plausible causal link between the accident and the resulting impairment.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
6. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
7. 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
8.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
9.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
10. This, therefore, involves a medical decision and a non-medical informed judgement.
11. 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.”
In Norrington v QBE Insurance (Australia) Ltd[4] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[4] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[5] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
12.“…busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”
[5] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[6] where the Court stated at [64]:
13.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[6] [2016] NSWCA 229, McGiffen.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[7] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe, Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
ASSESSMENT UNDER REVIEW
[7] [2021] NSWSC 804, Kinchela.
This medical dispute was referred to Medical Assessor Cameron who assessed Mr Malta and issued a certificate dated 6 April 2022.[8] The injuries referred for assessment were as follows: cervical spine, thoracic spine, lumbar spine, right shoulder, left knee and scarring.
[8] Claimant’s bundle AD1 p 54.
Medical Assessor Cameron found that the following injuries were caused by the motor accident: cervical spine – soft tissue injury, right shoulder – soft tissue injury and scarring – right shoulder. He also found that the following injuries were not caused by the motor accident: thoracic spine – soft tissue injury, lumbar spine – soft tissue injury and left knee soft tissue injury.
Medical Assessor Cameron found the following:
· cervical spine – soft tissue injury 0% WPI;
· right shoulder – soft tissue injury 4% WPI, and
· scarring – right shoulder 0% WPI.
Medical Assessor Cameron assessed a total of 4% of permanent impairment caused by the motor accident.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties dated 8 June and 8 August 2022 and 5 April 2023 requiring each party to file an indexed, paginated bundle of documents and for Mr Malta to attend a medical examination on 17 May 2023. In response to these Directions the solicitor for the claimant and insurer both uploaded to the portal their bundles of documents and Mr Malta attended his medical examination with the Panel.
Pre-accident treatment medical evidence
Prior to the motor accident on 9 March 2018 Mr Malta reported a number of prior injuries and medical conditions.
Mr Malta reported numerous injuries and an extensive number of medical conditions, such as heart disease and digestive problems, however unless relevant to the issues before the Panel, this medical history has not been recounted.
There is a report dated 10 May 1999 from Ann Gibbons physiotherapist at Concord Hospital. She reported that an examination of Mr Malta revealed pain to his right shoulder increased since his car accident in January 1999. She recorded right shoulder pain at 120° abduction and end of range horizontal flexion.[9]
[9] Insurer’s bundle AD2 p 305.
Mr Malta reported to his treating general practitioner (GP) at the Priority Medical Centre a prior motor vehicle accident on 9 November 2012 when he was a driver of a car which was hit from behind. He reported at the time pain in the neck and back, seat belt marks and bruising on the right side of his chest and the right side of his neck.[10]
[10] Insurer’s bundle AD2 p 42.
Mr Malta also reported a home invasion in January 2012 where three men assaulted him injuring his head neck and chest.[11]
[11] Insurer’s bundle AD2 pp 42-45.
Mr Malta underwent an MRI of his cervical spine on 13 October 2015. He complained of neck pain since January 2012 which was worse since November 2012 after a motor vehicle accident which caused numbness in both arms.[12] The MRI scan showed mild to moderate degenerative spondylosis at the C4/C5 and the C5/C6 level with moderate bilateral foraminal stenosis uncovertebral hypertrophy.
[12] Insurer’s bundle AD2 pp 45-47
Mr Malta consulted Dr Omer Mohmand on 7 January 2016. He reported to the doctor of his ongoing neck and back pain which made it difficult to sleep for many years since his prior motor vehicle accident on 9 November 2012.[13]
[13] Insurer’s bundle AD2 pp 51-52
Post-accident treating medical evidence
Later on the same day as the accident, Mr Malta attended the Wangee Medical Centre. He reported to Dr Matter that he was suffering from neck pain only. All reflexes and movements were normal. Dr Matter diagnosed the claimant with myoligamentous injury strain of the neck.[14] The Wangee Medical Centre advised that due to a computer virus it had difficulty in accessing its patient data records from before 23 February 2018.[15]
[14] Claimant’s bundle AD1 pp 21-26.
[15] Claimant’s bundle AD1 p 20.
Mr Malta was also a regular patient at the Burwood Road Medical Centre. Shortly after his accident Mr Malta went to the Burwood Road Medical Centre. On 12 March 2018 he reported neck pain only. He was referred for a CT of the cervical spine. The records do not refer to left knee, right shoulder or other symptoms during that consultation.[16]
[16] Insurer’s bundle AD2 p 69.
On 14 March 2018 Mr Malta went to the Burwood Road Medical Centre. He reported neck pain dizziness and mild headaches. On examination Dr Zhang found neck and shoulder pain, tenderness in the cervical spine and posterior shoulders. On examination Dr found the range of movement of both shoulders and neck was normal.
On 21 May 2018 Mr Malta again attended the Burwood Road Medical Centre. He reported both neck and right shoulder pain.
On 30 June 2018 Mr Malta went to the Burwood Road Medical Centre. He reported to Dr Hislop problems with his left knee which started after the car accident and having difficulty walking. He also reported neck pain right shoulder pain.[17]
[17] Claimant’s bundle AD1 p 8.
On 2 July 2018 Dr Kamuaran reported X-ray of the left knee with osteoarthritis and effusion.[18]
[18] Insurer’s bundle AD2 p 66.
On 31 July 2018 Mr Malta went to the Burwood Road Medical Centre. He reported to Dr Zhou for a very long consultation. Mr Malta was noted by the doctor to have pre-existing degenerative arthritis. After the accident he reported increased neck pain and stiffness. Dr Zhou noted the CT cervical spine on 12 March 2018 showed mild to moderate changes in the joints and osteo arthritis. X-rays of the right shoulder was unremarkable apart from mild degenerative changes to the AC joints. His ultrasound showed a small insertional tear of the supraspinatus tendon. Patient developed pain in the left knee about one month ago. Dr Zhou noted “… patient reports to me that the left knee pain may not related to the MVA in March.”[19] Dr Zhou also noted that Mr Malta still feels pain in his neck and right shoulder and also his left knee.
[19] Insurer’s bundle AD2 p 65.
Dr Zhou also noted that Mr Malta saw Dr Griff Richards a rheumatologist who provided an ultrasound-guided steroid injection of the right sub acromial space.
On 11 July 2018 Dr Richards reported his opinion that the claimant’s swollen left knee was an episode of pseudo gout particularly as symptoms had come on acutely.[20]
[20] Insurer’s bundle AD2 p 65 and letter dated 31 July 2018 at AD 2 at page 173 and report dated 11 July 2018 at AD 2 at page 191.
On 16 August 2018 Mr Malta consulted Dr Richards who administered a cortisone injection into his right shoulder.[21]
[21] Insurer’s bundle AD2 p 202.
On 11 February 2019 Dr Jeffery Petchell examined and reported on the claimant’s right shoulder injury.[22] Dr Petchell examination recorded a significantly reduced range of motion to the claimant’s right shoulder compared to his left shoulder. Dr Petchell found motion in the right shoulder was: flexion 100°, abduction 90°, external rotation 60° and internal rotation to
L 2. The range of motion he found the left shoulder was: flexion 160°, abduction 100°, external rotation 60° and internal rotation to T 12.[22] Claimant’s bundle AD1 p 40.
On 23 May 2019 Dr Petchell operated on the claimant’s right shoulder. He performed a right shoulder arthroscopic acromnioplasty, distal clavicle extension and cuff repair.
Records from the Burwood Medical Centre show that the claimant had a right rotator cuff repair on 23 May 2019 and he continued to complain of difficulties with his right shoulder and was prescribed shoulder exercises and stretches to reduce his right shoulder impingement.[23]
[23] Insurer’s bundle AD2 pp 54-55.
The claimant attended physiotherapy at the Burwood Medical Centre for 21 visits in 2019. A physiotherapist Andrew Rohowyj noted that the claimant’s shoulder motion and flexion gradually improved over that period of treatment. The last consultation on 31 October 2019 showed a right shoulder flexion of 135° and abduction of 125°,[24] His opinion was that given the delay in the improvement of his range of motion it was unlikely that Mr Malta would return to work as an upholsterer.
[24] Insurer’s bundle AD2 pp 265-266 and claimant’s bundle AD1 p 32.
Medico-legal evidence
Medical Assessor Nel Wijetunga
Mr Malta was assessed by Dr Wijetunga, orthopaedic surgeon on 21 February 2019.
Medical Assessor Wijetunga was asked to assess the cervical, thoracic, lumbar spine, right shoulder, left wrist, left hand, right wrist, right hand, left knee. His medical assessment certificate found that Mr Malta’s neck whiplash associated disorder is a minor injury and his right shoulder aggravation of underlying degenerative changes, partial or complete rupture is not a minor injury for the purposes of the MAI Act.
Medical Assessor Wijetunga also found that the claimant’s thoracic and lumbar spine, left wrist and hand, right wrist and hand, left knee were not caused by accident.
When asked about the history of his symptoms or pain Mr Malta’s response to Medical Assessor Wijetunga was recorded as follows:
17.“Mr Malta was vague about the onset of left knee pain. Initially, he recalled its onset several weeks after the motor vehicle accident. It was brought to his attention that his claim form which he completed on 4 June 2018 did not list left knee pain. He responded in saying his knee pain must have onset after that at the time he consulted Dr Richards. It was also brought to his attention that the Allied Health Recovery Request completed in August 2018 did have knee pain reported. He responded that this was most probably the time when his knee pain became troublesome. He recalls having neck pain and right shoulder pain for the first few months after the accident. The pain in the neck was intermittent and he perceived crepitations from neck pain. Despite listing lower back pain on his claim form, he does not recall any ongoing low back pain and responded that he must have had some mild lower back pain at the time he completed the form. He consulted a specialist last week in relation his shoulder and surgery has been recommended.”[25]
[25] Insurer’s bundle AD2 p 38.
Regarding the reporting of his left knee pain Medical Assessor Wijetunga recorded Mr Malta’s response as follows:
“He was queried as to why his left knee pain was absent in the documentation on his Personal Injury Claim Form. He reports that if he had not documented it then, he was not experiencing it. It was advised that it was reported by the allied health in August 2018, at which he responded his knee pain most probably onset between this time.
These inconsistencies are not considered plausible as direct knee pain as a result of the motor vehicle accident, would have been present prior to 3 months (time of completion of personal injury claim form).”[26][26] Insurer’s bundle AD2 p 39.
Medical Assessor Wijetunga measured Mr Malta’s left and right shoulder movements on the goniometer as follows. Mr Malta demonstrated the following ranges of movement as measured by goniometer:
Shoulder
AROMRight
(º)Left
(º)Flexion 90 180 Extension 30 50 Adduction 30 50 Abduction 70 160 IR 60 90 ER 90 90
Medical Assessor Wijetunga concludes with his diagnosis and reasons as follows.
Mr Malta denies any history of thoracic or lumbar spinal pain. He does not describe any symptoms to the wrist or hand on either the left or right side. Therefore, there is no diagnosis for these conditions and they have not been caused by the accident.
Regarding Mr Malta’s cervical spine, he denies any history of thoracic or lumbar spinal pain. He does not describe any symptoms to the wrist or hand on either the left or right side. Therefore, there is no diagnosis for these conditions and they have not been caused by the accident.
Regarding Mr Malta’s right shoulder, he denies any history of thoracic or lumbar spinal pain. He does not describe any symptoms to the wrist or hand on either the left or right side. Therefore, Medical Assessor’s Wijetunga opinion is that there is no diagnosis for these conditions and they have not been caused by the accident.
Regarding Mr Malta’s left knee, he describes described a pre-accident history of arthroscopy about 25 years ago. He reports that he had intermittent symptoms since then that were mild and did not require ongoing medication. He has some swelling of the left knee and there is mild tenderness over the medial joint line. Clarke’s test is negative. He cannot recall any bruising at the time of the accident over his left knee. Therefore, the most likely diagnosis is acute episode of osteoarthritis of the left knee. This has been amenable to steroid injection.
Medical Assessor’s Wijetunga opinion about the causation of Mr Malta’s right shoulder injury is that it is most probable age related degenerative condition of his shoulders, that the accident has caused a soft tissue injury to the right shoulder. Medical Assessor’s Wijetunga opinion is that this injury has been caused by the accident.
Medical Assessor Wijetunga’s opinion about the causation of Mr Malta’s left knee injury is that Mr Malta was ambiguous about the chronology of onset of the left knee pain. His own Personal Injury Claim Form did not document left knee issues. On further questioning around this inconsistency, he reports that his left knee pain most probably onset between June and August 2018. The delay of this presentation is not medically consistent with a soft tissue injury from direct trauma. Therefore, it has not been caused by the motor vehicle accident.
Dr Todd Gothelf
Mr Malta was assessed by Dr Gothelf, orthopaedic surgeon on 28 April 2020 with his report dated 30 April 2020.[27]
[27] Insurer’s bundle AD2 pp 18-30.
Dr Gothelf recorded the claimant’s past medical history including a left knee injury playing soccer 25 years ago and a motor vehicle accident some 10 years ago.
Dr Gothelf examined the claimant’s upper limbs and found There was a full range of pain-free movement of all joints of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal.
Dr Gothelf’s measurements of the claimant’s range of motion were measured with a goniometer. He recorded the results as:
19.
20. Right (0)
Left(0)
21.
22. shoulder flexion
23. 120
24. 150
25. shoulder extension
26. 50
27. 60
28. shoulder abduction
29. 110
30. 130
31. shoulder adduction
32. 40
33. 60
34. shoulder adduction
35. 70
36. 90
37. Shoulder internal rotation
38. 30
39. 80
Dr Gothelf’s diagnosis and opinion is that as a result of the accident Mr Malta sustained the following:
• Cervical neck soft tissue strain, exacerbation of underlying degenerative cervical spine. The soft tissue strain as since resolved.
• Right shoulder strain with rotator cuff tear resulting in surgery 23 May 2019. The right shoulder has persistent pain and stiffness since the accident.
Dr Gothelf also found that no evidence of injury to the following from the subject:
• thoracic spine;
• lumbar spine;
• left wrist;
• right wrist, and
• right hand.
In conclusion, Dr Gothelf found Mr Malta’s total whole person impairment (WPI) to be 10%.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors made two submissions one set of submissions undated and the other dated 26 April 2022.[28]
[28] Claimant’s bundle AD1 pp 1-5.
The submissions dated 26 April 2022 rely upon five grounds as a basis for their review application.
First they submit that Medical Assessor Cameron applied the wrong test of causation in relation to the left knee injury. They submit that it is not necessary for the injury to be a direct consequence of the accident as long as it is recently foreseeable.
Second, they submit that Medical Assessor Cameron failed to disclose his part of reasoning in stating that the left knee injury is not related to the accident. He also had a misplaced focus on the contemporaneous records about the left knee injury. Medical Assessor Cameron asked himself the wrong question and did not address the actual question posed in the legislation which was the degree of permanent impairment as a result of the injury caused by the motor accident.
Third, when examining the range of motion of Mr Malta’s right shoulder he did not follow clause 6.41 of the Guidelines which required the assessor to bring any inconsistencies to the injured person’s attention and give the injured person an opportunity to confirm the history and/or respond to the inconsistent observations which ensures accuracy and procedural fairness.
Fourth, Medical Assessor Cameron failed to provide adequate reasons and failed to provide an actual path of reasoning regarding his assessment of the right shoulder injury and also the left knee injury. Medical Assessor Cameron should have set out his actual part of reasoning including the steps that were taken to arrive at his conclusions.
Finally the claimant also submits that Medical Assessor Cameron failed to conduct his assessment in accordance with the motor accident guidelines. The claimant submits that Medical Assessor Cameron was required to apply a 10% UE and following 6.51 at page 88 of the guidelines the total impairment for the uninjured joint is subtracted from the injured joint.
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated March 2021 and May 2022 [29]
[29] Insurer’s bundle AD2 pp 1-4 and 5-10.
The insurer submits that Medical Assessor Cameron’s assessment of the claimant’s and left knee injury does not contain any error. The report from Professor Richards does not state that the claimant’s left knee injury relates to the subject accident. The certificate of Medical Assessor Cameron states that the claimant suffers from a swollen left knee and that he had a recent motor accident. The certificate does not make any causal link between the two medical conditions.
A proper reading of Medical Assessor Cameron’s certificate as a whole makes it clear that he was not unduly focused on the contemporaneous evidence of the left knee injury but gave consideration to all the relevant evidence to support his conclusion that the left knee injury was not related to the motor accident.
Medical Assessor Cameron’s reasons in relation to the causation of the left knee injury are adequate and his path of reasoning is clear. Medical Assessor Cameron correctly applied the test of causation for the left knee injury which is whether the accident made a material contribution to the claimant’s knee injury.
Regarding the shoulder injury, Medical Assessor Cameron found a greater range of motion of the claimant’s right shoulder injury on examination than did Dr Gothelf two years earlier. Medical Assessor Cameron did not consider that this was an inconsistency and noted that the claimant’s presentation was consistent.
The insurer submits that the claimant’s improved range of motion in the two years between the assessments of Dr Gothelf and Medical Assessor Cameron is entirely consistent with the expected evolution of the claimant’s shoulder condition.
The claimant was not denied procedural fairness by Medical Assessor Cameron’s failure to allow the claimant an opportunity to explain why his range of motion in his right shoulder had improved.
The claimant’s injured right shoulder rotator cuff and scarring were the injuries referred for assessment. The claimant did not refer for assessment his clavicle, or a distal clavicle arthroplasty. Medical Assessor Cameron not to assess the claimant’s clavicle, or a distal clavicle arthroplasty because if he had done so he would fall into error for assessing and impairment for an injury which had not been referred to him.
THE MEDICAL EXAMINATION
Mr Malta attended the medical suites of Commission on 17 May 2023. He was unaccompanied.
Pre-accident history
Mr Malta was working as an upholsterer and at the time of the accident was working three days per week. He had been undertaking this employment for the past 40 years. There was a motor vehicle accident in 2012 when he injured his right arm and developed a headache. He states that he was treated with physiotherapy and fully recovered. In 2016 due to cardiac issues he had a coronary stent inserted with associated medications and has since been asymptomatic. He lives with his wife.
History of motor vehicle accident
Mr Malta was the driver of his car and was stationary when hit from the rear. He was able to get out of the car but felt dizzy at the time and exchanged details with the other driver and drove a short distance to home. The ambulance and police did not attend the scene of the accident. He attended his GP who was situated very close to his home.
History of symptoms and treatment following the motor vehicle accident
Mr Malta states that the initial discomfort was a cracking in the neck with pain in the right shoulder and left knee. His GP referred him to an orthopaedic surgeon Dr Petchell who on 24 May 2019 did a right shoulder acromioplasty, distal clavicle excision and cuff repair. At the same time, the surgeon did a right carpal tunnel release which was not related to the motor vehicle accident. He states that the surgical procedure did not give much benefit but the carpal tunnel surgery did. His left knee symptoms have gradually improved and with continued physiotherapy the shoulder slowly recovered but there is still a limitation in range of movement.
Current symptoms
The main discomfort is in the right shoulder which he feels is weak and wakes him at night if he lies on the shoulder. He has ceased doing any sporting activities and can no longer do any house painting. He is able to walk without difficulty and drives. Since the accident, he does a few odd jobs around the house and some light upholstery jobs. The claimant also indicated he was still doing some small upholstery jobs.
Current treatment
Present medication is Panadol four per day and occasionally Panadeine Forte. He takes an aspirin daily as well as medication for hypertension and hypercholesterolaemia. He consults his GP when necessary and has regular follow-up with his cardiologist. No manual therapy is being undertaken at present.
There have been no further injuries or accidents sustained since this motor vehicle accident.
Clinical examination
Mr Malta walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was 163cm and weight 82kg.
Cervical spine
On testing range of movement, flexion/extension, side bending rotation were all 80% of expected range bilaterally with no asymmetry. On palpation there was tenderness in the left upper cervical paravertebral muscles and tenderness over the right trapezius muscle but no guarding or spasm was noted.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 27cm bilaterally (10cm above the olecranon process) and in the upper forearms 23 cm bilaterally (10cm below the olecranon process).
Shoulders
On palpation, there was tenderness over the right glenohumeral joint. On passive movement no crepitus was detected and there was minimal scapula movement on shoulder abduction. Impingement tests were negative and active movements were measured using a goniometer and repeated three times. Passive movement was to a similar range as active movement.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 130°= 3% UEI 150°= 2% UEI Extension 50° = 0% UEI 60°= 0% UEI Adduction 50°= 0% UEI 50°= 0% UEI Abduction 120°= 3% UEI 150°= 1% UEI Internal Rotation 70°= 1% UEI 80°= 0% UEI External Rotation 80°= 0% UEI 90°= 0% UEI
Thoracic spine
On testing range of movement of the thoracic spine, flexion/extension, side bending rotation royal 80% of expected range with no asymmetry. No guarding or spasm noted in the thoracic musculature and there were no signs of radiculopathy or non-verifiable radicular complaint.
Lumbar spine
Mr Malta walked with a normal gait but had limited walking on his toes due to pain in the right forefoot. On testing range of movement, flexion/extension and side bending were within normal limits with no asymmetry. On palpation there was no guarding or spasm noted in the lumbar musculature. Straight leg raise was 80° bilaterally with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 43cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 36cm bilaterally.
Knees
On inspection of the knees no effusions were apparent and on palpation no tenderness was noted. Mr Malta stated that the pain in the right knee had now resolved on testing range of movement flexion was 130° bilaterally with 0° extension. There were no signs of crepitus on passive movement and no ligament laxity on testing.
Scarring
There are very small surgical scars from the arthroscopy of the right shoulder which had a good colour match, no suture marks, no contour defect, no trophic changes, with no effect on ADLs and no treatment required. Mr Malta could locate them but they are not usually visible in his normal attire. Classification of best fit is 0% WPI using the Temski chart.
No inconsistency was noted during the interview and examination.
WPI
Cervical spine
Using Table 73 of AMA4 there is 0% WPI. There is documentation by the treating GP that Mr Malta had neck pain on the first consultation and this is causally related to the subject accident.
Thoracic spine
Using table 74 of AMA4 edition equals 0% WPI. There is no documentation of any injury to the thoracic spine in the subject accident and no treatment for investigations have been undertaken. This is not causally related to the accident.
Lumbar spine
Using Table 72 of AMA4 equals 0% WPI. There is also no documentation of any injury to the lumbar spine sustained in the subject accident in the treating GP or treating specialist reports. This is not causally related to the subject accident.
Right shoulder
The treating GP recorded pain in the right shoulder and investigated it radiologically. He subsequently referred him to Dr Richards, rheumatologist and then Dr Petchell, an orthopaedic surgeon who subsequently operated on the right shoulder. The Panel considers that the right shoulder injury is causally related to the subject accident.
Table 27 of AMA4 list and isolated resection arthroplasty of the distal clavicle as 10% UEI. This would convert to 6% WPI using Table 3 of AMA4. A resection arthroplasty from Table 27 of AMA5, gives 10% UEI. Taking the shoulder range of motion as found by the Panel, it would give 7% UEI on the right less 3% UEI on the left, which would give 4% UEI on the right. This could be combined with the 10% for the resection arthroplasty of the right shoulder which would give 13% UEI which would equate to 8% WPI. Please see the paragraph on the top of page 62 of AMA5 which says "in the presence of decreased motion, motion impairments are derived separately and combined with the resection arthroplasty impairment from Table 27. Considering all of the evidence from the Panel’s examination and the other clinical evidence referred to above, the Panel assesses the claimant’s right shoulder with an 8%WPI.
Scarring
Zero percent WPI using the Temski chart.
Left knee
Any injury to the left knee has since fully resolved and it is likely that discomfort in the left knee was not related to the motor vehicle accident as recorded by Dr Richards, who was the treating rheumatologist who examined Mr Malta four months after the accident when he had swelling of the left knee. Dr Richards thought the left knee swelling may have been acute pseudogout which is not traumatic.
Summary and Panel’s assessment
Mr Malta was involved in the accident on 9 March 2018. The contemporaneous clinical notes would support soft tissue injury to the cervical spine and torn ligament in the right shoulder. There was little evidence to suggest he sustained a specific injury to his left knee, thoracic spine and lumber spine. As Mr Malta did not attend hospital and there are no ambulance notes or hospital discharge notes recording any symptoms or injuries. On the day of the accident Mr Malta reported to his GP Dr Matter that he was suffering from neck pain only. Dr Matter found all the claimants reflexes and movements to be normal. He diagnosed the claimant with myoligamentous injury strain of the neck.
At the Panel examination on 17 May 2023 Mr Malta did not give details about the mechanism of his injuries to his right shoulder.
Regarding his right shoulder, on 14 March 2018 the claimant’s treating GP Dr Zhang examined Mr Malta and found neck and shoulder pain, tenderness in the cervical spine and posterior shoulders although we found the range of movement for both shoulders and neck to be normal. From mid-March 2018 the claimant continued to complain of pain in the right shoulder. The claimant’s right shoulder investigated radiologically and found to have mild degenerative changes to the AC joints and a small insertional tear of the supraspinatus tendon. The claimant was subsequently referred to Dr Richards, rheumatologist and then Dr Petchell, an orthopaedic surgeon who on 23 May 2019 performed an arthroscope and rotator cuff repair to the right shoulder. Medical Assessor’s Wijetunga opinion about the causation of Mr Malta’s right shoulder injury is that it is most probable age related degenerative condition of his shoulders and that the accident has caused a soft tissue injury to the right shoulder. Medical Assessor’s Wijetunga opinion is that this injury has been caused by the accident.
The Panel notes that several doctors have examined and recorded the claimant’s range of motion in both of his shoulders. These results indicate that the claimant’s range of motion in his right shoulder has varied over a number of examinations. After his operation there has been a gradual but inconsistent improvement in the claimant’s range of motion in his right shoulder.
The Panel could not rule out the accident as one cause, more than negligible, of the claimant’s right shoulder injury. Given the weight of evidence the Panel considers that the right shoulder injury is causally related to the subject accident. In conclusion the Panel finds there was 8% WPI of the right shoulder caused by or due to the accident.
Regarding the claimant’s injury to the left knee, the Panel notes that the claimant did not complain to his treating doctors of any pain, symptoms or injury to his left knee until some three months after the motor accident. The claimant had a prior sports injury to his left knee about 25 years ago. He first reported to his local doctor and a physiotherapist during treatment that he had a left knee problem about three or four months after the motor vehicle accident. The Panel’s view is that this delay in presentation makes the left knee injury temporally non-causal.
At the Panel examination on 17 May 2023 Mr Malta did not give clear details about when he first experienced left knee pain after the accident. The Panel also notes that the claimant was questioned by Medical Assessor’s Wijetunga about why the left knee pain was not referred to in the claimant’s Personal Injury Claim form on 4 June 2018. The claimant responded by saying that is knee pain must have onset after the time he consulted Dr Richards. The Panel notes the opinion of Dr Richards, who reported on 11 July 2018, that the claimant’s swollen left knee was an episode of pseudo gout. The Panel also notes on 31 July 2018 the claimant told his treating GP Dr Zhou that his left knee pain may not be related to the motor vehicle accident in March.
The Panel notes the claimant’s reports that his left knee pain most probably onset between June or July 2018. The Panel’s finding is the delay of this left knee presentation is not medically consistent with a soft tissue injury from direct trauma sustained in the motor vehicle accident in March 2018. The Panel agrees with Medical Assessor Wijetunga where she states that the claimant’s delay in presentation with the left knee is not medically consistent with soft tissue injury from the direct trauma of the subject accident and has not been caused by the subject motor vehicle accident. Therefore, in the Panel’s view, the left knee injury has not been caused by the motor vehicle accident.
The Panel accepted that Mr Malta had sustained soft tissue injury to his cervical spine as a result of the accident. On examination they found no asymmetry, dysmetria, muscle spasm, or guarding in either the neck or low back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment was DRE Cervicothoracic Category I, resulting in 0% WPI.
The Panel does not accept that Mr Malta sustained a soft tissue injury to his thoracic spine. On examination movements were restricted, but there was no muscle spasm, dysmetria, guarding, or asymmetry. There were no radicular signs or symptoms identified at the examination. Therefore, the appropriate assessment was DRE Thoracolumbar Category I, resulting in 0% WPI. Any injury to the thoracic spine is not causally related to the subject motor accident. The Panel notes the claimant’s prior history of degenerative changes to his spine.
The Panel does not accept that Mr Malta sustained a soft tissue injury to his lumbar spine. On examination movements were restricted, but there was no muscle spasm, dysmetria, guarding, or asymmetry. There were no radicular signs or symptoms identified at the examination. Therefore, the appropriate assessment was DRE Lumbosacral Category I, resulting in 0% WPI. Any injury to the lumbar spine is not causally related to the subject motor accident. The Panel notes the claimant’s prior history of degenerative changes to his spine.
Finally the Panel assessed Mr Malta’s scarring on the right shoulder as 0% on the Temski chart.
As a result of these findings the Panel revokes the certificate of Medical Assessor Cameron dated 6 April 2022 and issues a replacement certificate in accordance with these reasons.
0
5
0