Mansour v Allianz Australia Insurance Limited
[2024] NSWPICMP 568
•15 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Mansour v Allianz Australia Insurance Limited [2024] NSWPICMP 568 |
CLAIMANT: | Salam Mansour |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Cameron Thompson |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 15 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured in a motor accident on 20 September 2018 when she was alighting from a bus; dispute as to whether the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the injury to the right wrist, cervical spine, lumbar spine, head, right knee, left knee, right leg (thigh), chest and right shoulder were caused by the accident but that the injury to the right hip and left shoulder were not caused by the accident; MA assessed that the injuries caused by the accident give rise to a combined whole person impairment (WPI) of 7% – 0% for the cervical spine, lumbar spine, right leg (thigh) and chest, 2% for the right wrist and 9% for the right shoulder; claimant re-examined; Held – the accident caused injuries to the right wrist, right shoulder, right hip, cervical spine, lumbar spine, right knee, left knee and chest; the injuries to the left shoulder and pelvis were not caused by the accident; the injuries to the right hip, right knee, left knee and chest have resolved with no assessable impairment; WPI assessed at 3% for the right wrist and right shoulder (right upper extremity) and 0% for both the cervical spine and lumbar spine; certificate of MA revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment - Permanent Impairment Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Home dated 16 June 2022. 2. The Review Panel certifies that the degree of permanent impairment of the claimant that has resulted from the following injuries caused by the motor accident on 20 September 2018 is not greater than 10%: (a) right wrist – fracture to the distal radius; (b) right shoulder – soft tissue injury; (c) right hip – periprosthetic fracture to the tip of the femoral prosthesis (resolved); (d) cervical spine – soft tissue injury; (e) lumbar spine – soft tissue injury; (f) right knee – soft tissue injury (resolved); (g) left knee – soft tissue injury (resolved), and (h) chest – soft tissue injury (resolved). |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Salam Mansour, was injured in a motor accident on 20 September 2018, when she was alighting from a bus at Sylvania in New South Wales (the motor accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz (the insurer) insured the owner and/or driver of the bus for liability to pay the claimant any damages and/or statutory benefits under the MAI Act.
The issue in dispute is whether the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Alan Home (the Medical Assessor) and dated 16 June 2022 (the medical assessment certificate).
THE REVIEW PROCEDURE
The claimant made an application for referral of the medical assessment of Medical Assessor Home to a Review Panel.[3]
[3] Section 7.26 of the MAI Act.
On 24 August 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the 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 Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
On 12 April 2023 the claimant was examined by Medical Assessor Moloney.
MEDICAL ASSESSMENT UNDER REVIEW
The following injuries were referred to the Medical Assessor for assessment:
(a)right wrist – distal radius requiring open reduction and internal fixation (ORIF);
(b)cervical spine – soft tissue injury;
(c)lumbar spine – soft tissue injury;
(d)head – bruising/headaches;
(e)knees – soft tissue injury;
(f)right leg – periprosthetic fracture of femoral prosthesis;
(g)chest – soft tissue injury;
(h)bilateral shoulders – aggravation of pre-existing shoulder injury, soft tissue, and
(i)right hip - aggravation of right hip injury, periprosthetic fracture.
The Medical Assessor obtained a history from the claimant that on 20 September 2018 she was a passenger preparing to alight from a bus. She said that she pressed the buzzer, bent down to collect her bags from the floor and stood up to walk towards the exit door, but that when she turned to swipe her opal card, the bus accelerated forward. She recalled losing her balance, walking back towards the rear of the bus and striking her head on an upright column. As she turned, she fell towards a seat and her knee struck the floor of the bus and her right arm struck the seat. She said that she took the majority of her weight through her right side and recalls immediate pain of the right wrist. She was assisted from the bus and by her son who was waiting outside her home, and she was taken by ambulance to Sutherland Hospital.
The Medical Assessor records that X-rays demonstrated an impacted distal radius fracture and that this was subsequently treated in a volar and dorsal back slab sandwich and the claimant was taken to be followed up at the rooms of Dr Symes. An incidental CT scan found an L2 lytic lesion and subsequent imaging demonstrated that the lytic lesion was benign.
The claimant subsequently came under the care of Dr Mohamad Mourad, orthopaedic surgeon, and underwent an open reduction and internal fixation as well as carpal tunnel release and neurolysis performed by Dr Mourad on 4 October 2018. She had a subsequent period of physical therapy for her right wrist. She was referred to a physiotherapist due to right shoulder stiffness from wearing a sling for which she was treated. Treatment by the physiotherapist, Johnathan McLennan, was directed towards the right side of the neck and shoulder girdle tightness and she was subsequently referred to a second physiotherapist, Mr Zikas, in December 2018 complaining of right shoulder pain, neck pain and mid-back pain, lower back pain and right thigh pain, with ongoing complaints of pain in the right wrist.
The claimant was subsequently referred to the orthopaedic surgeon, Dr Robert Molnar, whom she attended on 20 December 2018. Dr Molnar noted that there was uptake in the region of the femoral prosthesis tip, which he considered to be an undisplaced fracture, and treated this conservatively.
The claimant confirmed that she continued physical therapy through 2019 and there was subsequently surgery to remove the metalwork from her right forearm performed on 11 November 2019 by Dr Mourad.
The claimant said that she recalled the onset of left shoulder pain, possibly three months after the accident and was preferentially using her left hand for activities of daily living. She was referred to Dr Geoffrey Smith, orthopaedic surgeon, whom she attended on 13 September 2019 in relation to left shoulder pain. Dr Smith recommended an injection which provided temporary benefit, and the claimant said that she was offered surgical management but that this had not occurred, partly due to anxiety and party due to the intervening COVID pandemic. She said that she currently has no plans to undergo left shoulder surgery. The claimant confirmed that she also attended Dr Kulkarni, orthopaedic surgeon in mid-2020, and underwent a left C5/6 facet joint injection and a bilateral L5 nerve root sleeve block. The claimant recalled transient symptom benefit from both of these procedures but has had no plans for surgical management.
At the time of the Medical Assessor’s assessment, the claimant reported that she attended an osteopath for treatment of intercurrent neck and back pain fortnightly, for which she experienced benefit for several days and she was taking Endep at night and Paracetamol tablets during the day.
In terms of her activities of daily living, the claimant reported to the Medical Assessor that she was independent of her activities of daily living prior to the subject accident and that she was presently independent for activities of self-care and able to lift and carry light weights held in her left hand but avoided lifting with her right hand. She had resumed light domestic chores such as cooking, dishwashing, bench-height cleaning, placing clothes in the washing machine and hanging washing on a low rack, but her daughter-in-law or sons performed the heavier chores such as bathroom cleaning, mopping and vacuuming.
In terms of past medical history, the claimant confirmed that she had a right total hip replacement in 2012 following a fall, and a history of bilateral knee replacements. Further, in 2012 she suffered a traumatic fall resulting in a right shoulder dislocation and fracture which left her with residual pain and stiffness.
The claimant also confirmed a history of prior lower back pain that occurred periodically for which she took medication.
The Medical Assessor found that the following injuries were caused by the accident:
(a) right wrist – distal radius fracture requiring open reduction and internal fixation (ORIF);
(b) cervical spine – soft tissue injury;
(c) lumbar spine – soft tissue injury;
(d) head – contusion – resolved;
(e) right knee – contusion – resolved;
(f) left knee – contusion – resolved;
(g) right leg (thigh) – periprosthetic fracture of the tip of the femoral prosthesis – healed;
(h) chest – soft tissue injury – resolved, and
(i) right shoulder – aggravation of pre-existing condition.
The Medical Assessor found that the following injuries were not caused by the accident:
(a) right hip, and
(b) left shoulder.
The Medical Assessor assessed a combined whole person impairment (WPI) of 7% as follows:
(a) cervical spine – 0%;
(b) lumbar spine – 0%;
(c) right wrist – 2% upper extremity impairment (UEI);
(d) right shoulder – 9% UEI;
(e) right thigh/leg – 0%, and
(f) chest – 0%.
The Medical Assessor noted that a total of 11% UEI converts to 7% WPI.
THE CLAIMANT’S HEAD INJURY
On assessment of the claimant, the Medical Assessor diagnosed the claimant’s head injury as a contusion with subsequent headaches and he determined that there is no abnormality to examination of the head. The Panel formed the view that the evidence relied upon by the parties on the review does not satisfy the criteria for the assessment of a head injury pursuant to clause 6.164 of the Guidelines. In particular, the Panel noted that there is no brain imaging showing abnormality, the claimant’s Glasgow Coma Scale score (GCS) at the scene of the accident was 15, there is no evidence of post traumatic amnesia, and nor is there any evidence of psychometric testing.
The Panel issued a direction dated 6 April 2023 requesting the parties to provide submissions indicating whether they agree that the evidence in relation to the claimant’s head injury does not satisfy the criterion pursuant to clause 6.164 of the Guidelines, or alternatively, directing the Panel to the evidence which it is submitted does satisfy the criteria pursuant to clause 6.164.
In response to that direction, the insurer advised by email dated 18 April 2023 that it agrees that the evidence served does not satisfy the criteria pursuant to clause 6.164 for assessment of a head injury, and the claimant uploaded to the portal submissions dated
17 April 2023 confirming that the subject head injury does not satisfy the criteria pursuant to clause 6.164 of the Guidelines.
Consequently, the Panel has conducted the review on the basis that the evidence in relation to the claimant’s head injury does not satisfy the criterion pursuant to clause 6.164 of the Guidelines for the assessment of a head injury and that it was not necessary to conduct a re-examination of the claimant’s head.
STATUTORY PROVISIONS AND GUIDELINES
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 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 (AMA 4 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.[8]
[8] Clause 1.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Causation of injury is also addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
MATERIAL BEFORE THE PANEL
The Panel issued directions dated 14 September 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review.
In response to these directions, the claimant uploaded to the portal at AD2 a bundle of documents paginated from pages 1 to 84 (CB). The Insurer uploaded to the portal at AD3 a bundle of documents paginated from pages 1 to 425 (IB).
The insurer had lodged an Application to Admit Late Documents dated 31 August 2022 seeking leave to rely upon clinical records from Australian Health Care – IPM Medical Centre[11]. These are the same documents that are included in the insurer’s bundle which was subsequently lodged[12]. There was no objection by the claimant to the inclusion of this material in the insurer’s bundle, and accordingly the Panel has determined pursuant to Rule 67 of the PIC Rules and Procedural Direction PIC – 34, that leave be granted to the insurer to lodge and rely upon these documents on this review.
[11] AD1 pp.3-18.
[12] IB pp.232-247.
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 38 to 40 above in making its findings and determinations.
SUBMISSIONS
Claimant’s Left Shoulder/Right Hip Treatment Dispute Submissions dated 14 April 2022[13]
[13] CB p.12.
Before lodging her application for assessment of WPI, the claimant lodged an application to determine treatment disputed by the insurer in the form of a consultation in relation to the right hip with Dr Robert Molnar, a consultation in relation to the left shoulder with Dr Geoff Smith and osteopathic treatment with Dean Zekis.
These treatments had been disputed by the insurer’s internal review decision dated 21 March 2022. In doing so, the insurer submitted that the precipitating cause of the claimant’s hip complaints was a fall on 26 August 2021 which broke the chain of causation between the claimant’s motor accident in 2018 and her current complaints, and accordingly, that because there is no causal relationship between the right hip injury and the accident on 20 September 2018, the treatment under the care of Dr Robert Molnar is neither reasonable nor necessary. The insurer had further submitted that due to the delay in reporting the claimant’s left shoulder injury, there is no causal relationship between the shoulder injury and the accident on 20 September 2018 and therefore the treatment under the care of Dr Smith was neither reasonable or necessary.
In response to this, the claimant submits that the insurer’s submissions omit key evidence in relation to the right hip injury including:
(a) the statement of the claimant dated 14 April 2022, which indicates that the 2021 fall was not caused by any intervening event but was simply due to the claimant losing balance and falling in her home, and suggests that but for the injuries sustained by the claimant in the subject accident in 2018, from which she was recovering at the time of the 2021 fall, she likely would not have fallen over again and injured herself further;
(b) the report of Dr Robert Molnar dated 1 March 2012, which shows that six weeks after the claimant’s right hip replacement surgery in 2012 the claimant had an excellent range of motion in the hip, the wound was well healed, xrays demonstrated no periprosthetic complications and there were no reports of right hip pain;
(c) the clinical entry of Dr Malik, general practitioner, dated 15 September 2017. The claimant submits that from 2011 to the accident in 2018 there were no references of right sided hip pain, discomfort or weakness, with the exception of a reference on 15 September 2017 to a history of “right hip fracture”;
(d) the ambulance report dated 20 September 2018, which records “right hip pain” following the subject accident;
(e) the report of Dr Molnar dated 20 May 2019, which notes that the claimant sustained a “likely displaced fracture at the tip of the previously placed total hip” and which reports that the claimant has “ongoing intermittent pain in the right thigh persisting”;
(f) the report of Dr Molnar dated 7 February 2019, which confirms the diagnosis of “undisplaced periprosthetic fracture around the right hip” and which Dr Molnar says was sustained in the 2018 accident;
(g) the certificate of capacity dated 20 June 2019, which confirms the claimant sustained a “right hip fracture” causally related to the subject accident and records that the claimant is experiencing “ongoing hip pain”;
(h) the report of Dr Anil Nair dated 29 April 2020, which notes “tenderness over the right trochanteric region” and which is around the top of the femur and hip joint, consistent with where Dr Molnar describes the undisplaced fracture from the subject accident to be;
(i) the Allied Health Recovery Request dated 22 September 2020 which confirms that the claimant sustained a “right hip fracture” casually related to the subject accident and is still experiencing “ongoing hip pain”.
The claimant submits that the insurer’s submissions also neglect the following evidence in relation to the left shoulder injury:
(a) the statement of the claimant dated 14 April 2022 which indicates that the claimant had suffered left shoulder pain as a result of the accident in 2018 and consistent pain in her left shoulder ever since that accident, but that that pain/disability was not her primary focus for rehabilitation given the extent and severity of the cervical spine, wrist and hip injuries, and that once a treatment plan was in place for these other injuries and they began to stabilise, the claimant’s left shoulder injury became increasingly debilitating leading to a shift in focus towards treatment of that injury;
(b) the clinical entry of Dr Malik, general practitioner, dated 10 October 2011 which the claimant submits is the only reference to the left shoulder which mentions left shoulder pain, there being no references to the claimant’s general practitioner of left sided shoulder injury or disability from 2011 until before the accident in 2018;
(c) the certificate of capacity dated 27 November 2018 - the first mention of left shoulder injury which is recorded as “shoulder sprain”;
(d) the report of Dr Molnar dated 11 July 2019 in which Dr Molnar records that the claimant “still has bilateral shoulder pain” suggesting that this issue of shoulder pain has been ongoing;
(e) the report of Dr Molnar dated 5 August 2019, which records that the claimant has ongoing difficulty with her shoulder;
(f) the report of Dr Geoff Smith dated 13 September 2019, which notes that the claimant has been struggling with left shoulder pain which is multi-factorial and notes that this pain has been ongoing for the past six months, indicating that complaints began in 2019, soon after the subject accident. Further the pain is also described as “quite severe” and is severe enough to consider the possibility of surgery;
(g) the Allied Health Recovery Request dated 22 September 2019 in which left shoulder pain is described as “VAS 8 out of 10” and notes restricted range of motion, and
(h) the Allied Health Recovery Request dated 25 October 2019, which reports left shoulder pain as returning a score of 78% on the shoulder pain and disability index score and also states “current focus is on left shoulder”, suggesting that this issue has been long standing and has recently become the focus of treatment.
The claimant submits that the above material firstly indicates that recent injury to the right hip came about due to the weakened state of the claimant’s hip since the accident in
September 2018, and secondly, that there is a valid reason for the delay in the reporting of the left shoulder injury.
The claimant submits that the insurer’s submissions failed to identify that the claimant had suffered from symptoms and pain and instability consistently since the accident and submits that this persisting weakness in the hip can commonly result in the type of low energy trauma required to sustain a pubic rami fracture “as such an injury is almost consistently caused by as a result of falling from standing height or less”. For these reasons the claimant submits that the low energy trauma is almost certainly a result of pre-existing pain and weakness in the right hip which has been present only since the accident in 2018. The claimant submits that these symptoms would not have been present but for the accident and consequently the claimant’s fall would likely not have occurred but for these symptoms which placed her in a vulnerable and weakened state. Further the claimant submits that the pubic rami fracture sustained in 2021 is a completely different type of injury to a different area of the hip than the periprosthetic femoral fracture the claimant sustained in the subject accident, and submits that in the event that the 2021 fall is not considered causally related to the subject accident, separate and anatomically distinct injury to the claimant’s pelvis should not disentitle her from continued treatment for her periprosthetic femoral injury from 2018.
With regards to the left shoulder injury, the claimant submits that it is natural that the more severe and debilitating injuries she suffered in the accident required immediate attention which left a delay in reporting of those injuries which only became the focus of the claimant’s attention after her wrist and hip injuries were under effective treatment management, as confirmed by the claimant in her statement. The claimant emphasises the absence of pre-accident left shoulder pathology in addition to the consistency of reporting of the left shoulder injury post-accident, and that despite a delay in initial reporting of that injury, the complaints to follow were consistent and confirmed in multiple certificates of capacity and Allied Health Recovery Requests.
In summary, the claimant submits that:
(a) there remains a causal relationship between the accident on 20 September 2018 and the injury to the claimant’s right hip and left shoulder, and
(b) the continued treatment by Dr Robert Molnar and Dr Geoff Smith is most reasonable and necessary as a result of the injuries sustained in the subject accident.
Claimant’s Submissions – Application to Review Assessment of Permanent Impairment[14]
[14] CB p.1.
These submissions are relied upon by the claimant on the application for review of the Medical Assessor’s certificate.
The claimant repeats the submissions made in relation to the right hip and left shoulder treatment dispute and makes the following further submissions.
The claimant addresses two contentious findings by the Medical Assessor:
(a) the contention that despite complaints of right hip/leg pain and the confirmed periprosthetic fracture at the tip of the hip replacement, this injury has fully resolved, and
(b) the finding that despite a lack of pre-injury pathology followed by restricted range of motion and pain after the subject accident, the left shoulder injury is not causally related to the subject accident.
The claimant submits that the finding by the Medical Assessor that there is no assessable impairment to the right hip or the left shoulder is erroneous, because if an accurate assessment of impairment was conducted, the left shoulder injury alone would surpass the 10% threshold and both the right hip and left shoulder injuries combined would surpass that threshold.
The claimant further submits that there are the following limitations in the Medical Assessor’s reasoning:
(a) whilst the Medical Assessor references several documents evidencing the right hip and the delay in complaints concerning the left shoulder, he omits key evidence required to permit fair and accurate assessment of the dispute at hand, and
(b) the Medical Assessor does not adequately explain why he comes to certain conclusions – there is no discussion whatsoever in regard to why he believes there is no persisting impairment of the right hip/thigh injury and why the fracture has fully healed, save for citing documents that the Medical Assessor reviewed and excerpting the result of a physical examination he performed on the claimant’s right leg/hip. The claimant submits that this physical examination is at odds with the Medical Assessor’s determination on impairment as it evidences impairment he argues does not exist.
In support of these submissions the claimant draws attention to the following documents with regards to the right hip injury:
(a) statement of the claimant dated 14 April 2022;
(b) report of Dr Robert Molar dated 1 March 2012;
(c) clinical entry of Dr Malik, general practitioner, dated 15 September 2017;
(d) ambulance report dated 20 September 2018;
(e) report of Dr Robert Molar dated 20 May 2019;
(f) Certificate of capacity dated 20 June 2019;
(g) Allied Health Recovery Request dated 22 September 2020;
(h) Allied Health Recovery Request dated 14 January 2021, and
(i) the Medical Assessor’s certificate dated 16 June 2022.
The claimant refers to the contention of the Medical Assessor that the right hip/thigh injury has healed “without residual impairment” but submits that the balance of the Medical Assessor’s report contradicts this conclusion and that the Medical Assessor provides no discussion as to why he believes his injury has “healed” or any explanation of his reasoning save for briefly summarising the documents he has relied upon. The claimant submits that the only discussion of subsisting disability in the right thigh/hip are comments made by the Medical Assessor which fundamentally conflict with his stance of no residual impairment. The claimant refers to the Medical Assessor’s statement that “active motion of his right hip is restricted” as well as noting “pain of the proximal right thigh associated with prolonged sitting and walking” but submits that it is unclear how the Medical Assessor is able to substantiate these conclusions.
The claimant submits that the above material is crucial in understanding the extent of the claimant’s right hip injury and that it indicates that the claimant has suffered from symptoms from pain and instability consistently since the accident in September 2018 and was asymptomatic in the years leading up to the accident.
The claimant further submits that in light of the consensus of medical evidence supporting the existence of continuing disability caused by the claimant’s hip injuries sustained on 20 September 2018, together with the lack of explanation or discussion provided by the Medical Assessor to support his view to the contrary, the assessment by the Medical Assessor of 0% WPI for this area is wholly in error.
With regards to the injury to the left shoulder, the claimant submits that whilst the Medical Assessor contends that the left shoulder injury is not causally related to the accident, his reasoning for this makes an important factual error in that he records the delay in the claimant’s reporting of the left shoulder injury to be between six and nine months after the accident, when, in reality, the first report of a shoulder injury was two months after the accident.
The claimant refers to the Medical Assessor’s statement that he does not find the claimant’s explanation that the left shoulder injury was overshadowed by the right wrist and hip injuries medically plausible but fails to provide or at least mention any other plausible medical alternative to explain the left shoulder injuries the claimant has sustained post-accident.
The claimant submits that this, together with the claimant’s complete absence of pre-accident injuries or pathology concerning the left shoulder, makes it unclear how the Medical Assessor reached his conclusions about causation and submits that this is further supported by the fact that the Medical Assessor’s own examination of the left shoulder demonstrated serious restriction of motion totalling approximately 15% UEI.
The claimant draws attention to the following documents in support of these submissions:
(a) statement of the claimant dated 14 April 2022;
(b) report of Dr Robert Molar dated 1 March 2012;
(c) clinical entry of Dr Malik, general practitioner, dated 15 September 2017;
(d) ambulance report dated 20 September 2018;
(e) Report of Dr Robert Molar dated 20 May 2019;
(f) certificate of capacity dated 20 June 2019;
(g) Allied Health Recovery Request dated 22 September 2020;
(h) Allied Health Recovery Request dated 14 January 2021, and
(i) the Medical Assessor’s certificate dated 16 June 2022.
In particular, in relation to the Medical Assessor’s certificate, the claimant submits that the Medical Assessor, despite arguing that the left shoulder is not causally related to the accident, makes the observation that post accident the claimant suffers from “marked stiffness and activity related pain” in the left shoulder and noted when examining the shoulder that there was “marked deltoid wasting”, makes no effort to explain why this incapacity, exists nor does he attribute it to any subsequent injury or pre-existing illness/disability.
In summary, the claimant submits that:
(a) prior to the subject accident the residual pathology from the claimant’s pre-existing hip replacement was asymptomatic and following her hip replacement she reported that she was in an overall good state of health and had no right hip pain or symptom post recovery;
(b) following the subject accident, the claimant experienced deterioration in her right hip leading to increasing pain, instability and weakness which has continued to date. Further, the claimant submits that this disability is confirmed and corroborated by the Medical Assessor and the balance of the medical evidence available despite the unsubstantiated conclusion that no residual impairment remains in the right hip/thigh;
(c) prior to the accident the claimant had never sustained a single diagnosable illness, injury or disability to the left shoulder, and it was only after the accident that the claimant reports complaints of left shoulder pain and disability consistently. The claimant further submits that the causal relationship between the accident and the left shoulder injury is also confirmed to be corroborated by the balance of the medical evidence available, despite the MA’s unsubstantiated conclusion as to causation, and
(d) the Medical Assessor has failed to accurately consider the totality of the medical evidence and most significantly the claimant’s own factual evidence of shoulder and hip/thigh symptoms and complaint as well as that of Dr Molnar and Dr Malik, thereby preventing an accurate assessment of whole person impairment.
The claimant submits that:
(a) there remains a causal relationship between the subject accident and the injury to her right hip/thigh and left shoulder; and
(b) there is clear persisting disability impairment of the claimant’s right hip/thigh and left shoulder which places the claimant over the 10% WPI threshold.
The Insurer’s Original Reply Submissions[15]
[15] IB p1.
The insurer is critical of the reliability of the assessment and opinions of Dr Anil Nair. It submits that whilst Dr Nair examined the claimant on 29 April 2020, he did not provide a permanent impairment rating until 21 May 2020, almost one month post examination and the insurer submits that this is not an accurate reflection of the claimant’s impairment. Further, despite pre-existing injuries preceding the subject accident such as a fractured and dislocated right shoulder, bilateral hip replacement, bilateral knee replacements, diagnosis of osteoarthritis and degenerative disc disease, Dr Nair failed to make any deductions for pre-existing impairment.
The insurer submits that the claimant’s injured right wrist attracts 0% WPI because:
(a) the claimant has not demonstrated any abnormal range of motion in the right wrist; and
(b) the most contemporaneous assessment of the right wrist is by Dr Hyde Page who found that the claimant had maintained full range of movement in her wrist and hand, equal to the left side, had normal movement of her fingers and thumb and strong grip strength and assessed the whole person impairment for this at 0%.
The insurer submits that the injury to the claimant’s cervical spine attracts a permanent impairment rating of 0%. The insurer again relies upon the independent medical examination of Dr Hyde Page dated 12 March 2021, who assessed 0% WPI for the cervical spine reported that whilst the claimant had stiffness in her cervical spine and thoracolumbar spine, there was no evidence of muscle guarding or dysmetria and she complained of no radicular symptoms. The insurer submits that Dr Hyde Page further noted that investigations show that the claimant has pre-existing severe degenerative disc disease and considered that any aggravation caused to the claimant’s neck and back by the subject accident has now ceased and the underlying degenerative disc disease is the cause of any ongoing problems. The insurer submits that this is consistent with the diagnosis reported by the claimant’s general practitioner, Dr Malik, who describes the injury to the claimant’s neck as a “sprain” and submits that this would have resolved some three years post-accident. The insurer also refers to the claimant’s pre-existing history of cervical spine injuries from the clinical notes of her general practitioner from October 2011 to January 2019.
The insurer submits that the claimant’s cervical spine injury reached the criteria of Diagnosis Related Estimate (DRE) Category 1 which attracts a 0% WPI rating, and that the ongoing pain and restricted movement relates to the claimant’s pre-existing cervical spine degenerative disease.
The insurer also submits that the claimant’s lumbar spine injury attracts a permanent impairment rating of 0% as assessed by Dr Hyde Page and notes Dr Hyde Page’s comments as to pre-existing severe degenerative disc disease and his opinion that any aggravation caused to the claimant’s neck and back by the accident has now ceased and the underlying degenerative disc disease is the cause of any ongoing problem. The insurer also refers to the history of pre-existing lumbar spine injury referred to in consultations from the clinical records of the claimant’s general practitioner.
With regards to the claimant’s head injury, the insurer submits that the claimant’s head injury is not causally related to the accident.
With regards to the claimant’s bilateral knee injuries, the insurer submits that these have now resolved and relies upon the opinion of Dr Hyde Page in relation to the functioning of the claimant’s knees and the medical evidence in relation to the claimant’s pre-existing bilateral knee replacements.
The insurer submits that Dr Nair failed to assess the claimant’s bilateral knees which is evidence the bruises the claimant’s sustained from the accident have now resolved and there is no permanent impairment.
The insurer also submits on the same basis that the claimant’s leg injuries have now resolved.
The insurer submits that the claimant’s chest injury attracts no permanent impairment. It submits that this is a soft tissue injury which has now resolved, noting that neither Dr Nair nor Dr Hyde Page reported any abnormalities or permanent impairment for the chest injury and there is no evidence that the claimant sustained complicated rib fracture pursuant to clause 6.23 of the Guidelines.
The insurer submits that the claimant’s left shoulder injury is not causally related to the accident because:
(a) the Application for Personal Injury Benefits does not report any left shoulder injury;
(b) the Allied Health Recovery Request dated 5 December 2018 and 8 February 2019 did not diagnose or treat a left shoulder injury;
(c) the report of Dr Hyde Page notes that the claimant first developed pain in the left shoulder about six months after the accident and did not specifically injure the left shoulder in the accident. In his opinion the left shoulder condition is not directly or indirectly related to the motor accident, and
(d)
there is a pre-existing history of left shoulder injuries referred to in the clinical records from the claimant’s general practitioner from a consultation on
10 October 2011.
Accordingly, the insurer submits that the left shoulder injury is not causally related on the basis of the delay in reporting this injury and pre-existing degenerative changes.
The insurer submits that the claimant’s right shoulder injury is a pre-existing injury. In support of this submission, it relies upon the claimant’s clinical notes from consultations on
13 April 2012 and 15 September 2017 including a history of right shoulder fracture, and the opinion of Dr Hyde Page that whilst the claimant had some stiffness in her right shoulder, this appears to be purely age related.
The insurer submits that the right hip injury is a soft tissue injury and that the claimant has demonstrated no abnormal range of motion, and therefore this injury would attract no permanent impairment. In support of this submission, it relies upon the opinion of Dr Hyde Page, and in particular the underlying longstanding right total hip replacement, and his opinion that there was no evidence of any actual fracture around the total hip replacement on the investigations and that the claimant maintained a full range of movement in her right hip, resulting in 0% whole person impairment in the right hip and right lower limb.
The insurer also relies upon the X-ray of the right hip on 19 December 2018 which confirmed no bony abnormalities, and reference to a pre-existing right hip injury in the clinical records from a consultation on 23 February 2014, which reports right hip pain and refers to the hip replacement surgery 16 months previously. The insurer further notes that Dr Nair fails to observe or measure any abnormal range of motion in regard to the right hip and submits that his assessment cannot be relied upon. The insurer concludes that the claimant’s right hip attracts no assessable impairment.
The insurer also submits that the claimant’s hearing loss and balance is not causally related to the accident. In support of this, the insurer notes that the claimant has not sustained a head injury causally related to the subject motor accident which would give rise to symptoms of hearing loss and balance, and refers to the note in the ambulance report on the day of the accident that the claimant denied hitting her head and denied any loss of consciousness. The insurer also relies upon the CT scan of the brain on 20 September 2018 which notes no evidence of cerebral contusion or haemorrhage and submits that the claimant has not served any evidence that she has sustained permanent impairment of the ear or brain.
In conclusion the insurer submits the claimant’s injuries do not exceed the statutory threshold for permanent impairment.
The Insurer’s Review Reply Submissions[16]
[16] IB p. 225.
These submissions were lodged in reply by the insurer to the claimant’s application for review of the Medical Assessor’s certificate.
The insurer submits that the alleged errors in the MA’s findings are limited to the right hip and left shoulder and disputes that the claimant has identified any material errors in the Medical Assessor’s certificate.
With regards to the right hip injury, the insurer refers to the claimant’s statement dated 14 April 2022 and her evidence of experiencing consistent pain in her right hip since the accident and the consequential allegation that but for her continuing right hip complaint she would not have fallen oven again in 2021. The insurer notes that that statement was not before the Medical Assessor, and that the claimant did not advise the Medical Assessor of her fall in 2021.
The insurer submits that contrary to the claimant’s submissions, the Medical Assessor did not find that the right hip injury had “healed without residual impairment” but rather, determined that there was no evidence that the claimant sustained a discrete injury to the right hip.
With regards to the claimant’s contention that the Medical Assessor has not provided any explanation of his reasoning save for briefly summarising the documents he had relied upon, the insurer disputes that the Medical Assessor has undertaken only a brief summary of the documents and notes the Medical Assessor’s detailed summary of the claimant’s submissions, the medical records and reports before him including the reports of Dr Molnar, Dr Nair and Dr Hyde Page, his very detailed summary of the radiological evidence, and the history taken by the Medical Assessor of pain and symptoms in her right thigh.
The insurer submits that having thoroughly reviewed the material before him and examined the claimant, that the Medical Assessor concluded that the claimant sustained a periprosthetic fracture of the tip of the femoral prosthesis in the mid-right thigh which had healed without residual impairment and refers to the MA’s reference to table 64 of the AMA Guides and his finding that a healed femoral shar fracture without angulation or rotation attracts a 0% WPI rating, and also refers to the Medical Assessor’s conclusion that there was no discrete injury sustained in the subject accident to the right hip.
With regards to the injury to the left shoulder, the insurer refers to the claimant’s submission that the Medical Assessor incorrectly recorded that there was a six-to-nine-month delay in the reporting of an injury to the left shoulder when the first report of a shoulder injury was two months after the accident.
In response to this submission, the insurer contends that the claimant’s submissions do not point to the document containing the first report of a left shoulder injury two months post-accident and assumes that this is referring to the certificate of capacity dated 27 November 2019 which refers to a “shoulder sprain” and does not specify which shoulder was injured. It submits that, having regard to Dr Malik’s consultation records, the reference to a “shoulder sprain” was a reference to the right shoulder and not the left shoulder, because the records show that when the claimant first attended Dr Malik on 24 September 2018, she reported injuring her right arm, and was observed to have a reduced range of motion in the right shoulder, and that in consultation on 11 November 2018, the claimant was referred by Dr Malik for an ultrasound of the right shoulder.
The insurer submits that the first reference to any left shoulder complaint in the medical evidence before the Medical Assessor is contained in the report of Dr Molnar dated 11 July 2019, nine months following the accident when the claimant complained of bilateral shoulder pain, and that this is consistent with the Medical Assessor’s findings.
The insurer further submits that in not accepting the claimant’s explanation of the left shoulder injury was overshadowed by the right wrist and hip injuries, the Medical Assessor was not required to provide a plausible medical alternative to explain her shoulder symptoms but, having regard to clause 6.6 of the Guidelines, the Medical Assessor was only required to determine whether the subject accident could have caused or contributed to worsening of the impairment and that it did cause or contribute to worsening of the impairment. He was not required to provide an alternative explanation of the claimant’s left shoulder complaints.
The insurer disputes the submission by the claimant that the absence of left shoulder complaints prior to the accident requires a finding that the claimant sustained an injury to the left shoulder in circumstances where the first report of the left shoulder pain was not made until six to nine months post-accident.
Further, the insurer rejects the claimant’s contention that the Medical Assessor’s findings in respect of causation of the left shoulder are unclear. It sets out what it submits are clear and detailed reasons for the MA’s finding that the left shoulder injury was not caused by the subject accident extending beyond half a page in his certificate, including that:
(a) the medical records indicate that the claimant’s left shoulder symptoms commenced six to nine months post-accident;
(b) the MA’s opinion that if the claimant had suffered an episode of left shoulder subluxation, she would have experienced severe pain and stiffness in the left shoulder in the days after the accident;
(c) the Medical Assessor did not accept that the left shoulder complaints were overshadowed by the right wrist injury, noting in particular that a right wrist injury would have required the claimant to use her left arm more and therefore would not have allowed these symptoms to have been overlooked, and
(d) the Medical Assessor did not accept that the left shoulder injury was a consequential injury as there was no evidence that the claimant was overusing her left arm following the accident.
The insurer submits that the Medical Assessor has provided adequate reasons for his findings and that these reasons clearly disclose his actual path of reasoning and that the claimant’s application should be dismissed as she has failed to demonstrate that there is a reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Moloney on 12 April 2023. The re-examination report is as follows:
“Mrs Mansour attended the medical suites at PIC on 12 April 2023. The interview and examination was conducted in the presence of an interpreter, Malak Hijazi, CPN 2VL86W.
Pre-accident history
Mrs Mansour states that she lives with her husband and has 4 boys. She had a right hip replacement in 2012 and right knee replacement in 2009 and left knee in 2016. In 2012 she had a fracture dislocation of the right shoulder which was treated conservatively. Four decades ago, she was involved in a car accident which caused a fracture of the pelvis but no surgery was required.
History of the motor vehicle accident
Mrs Mansour provided a history that on 20 September 2018 she was a passenger on a bus which stopped suddenly as she was attempting to get off the bus. She was carrying parcels and hit her head on a column and then fell backwards onto the floor and her knees. She states that the right shoulder hit the side of the seat and she had immediate pain in the right wrist. Other passengers assisted her off the bus and her son collected her.
History of subsequent treatment
Her son took her home and then requested an ambulance which conveyed her to Sutherland Hospital. X-rays revealed a fracture of the right wrist which was treated by an open reduction and internal fixation by Dr Mourad on 4 October 2018. At that time, he also did a release of a carpal tunnel syndrome. She stated she had a sore neck at the time and was wearing a sling to support the right wrist after the operation which caused her right shoulder to become stiff and painful.
There was a follow-up with the original treating surgeon for the right hip replacement, Dr Molnar, on 20 December 2018 who diagnosed a small undisplaced fracture at the tip of the femoral prosthesis which was treated conservatively. Mrs Mansour states that the left shoulder became painful about 3 months after the accident. She feels this was due to limitation in use of the right arm. Dr Smith, another orthopaedic surgeon, was consulted about the left shoulder and he arranged cortisone injections which gave temporary relief for 2 months.
Dr Molnar removed the internal hardware in the right wrist on November 11, 2019. In 2020 another orthopaedic surgeon, Dr Kulkarni, arranged cortisone injection to the C5/6 facet joints and L5 nerve root sleeve block. Mrs Mansour stated this was a slight benefit. In December 2022 there was another consultation with Dr Molnar as she still had weakness in the right wrist and he recommended continued physiotherapy.
Due to persistent headaches and dizziness, Mrs Mansour has consulted two neurologists and recently a new medication was tried, the name for which she is unsure, but this medication made her worse and she is having a follow-up with the neurologist, Dr Cordato, in a couple of weeks.
History of relevant injuries sustained since the subject accident
There was an injury to the pelvis on 26 August 2021. Mrs Mansour states that she was walking in her driveway and felt dizzy causing her to fall which resulted in a fracture to the right inferior pubic ramus. This was treated conservatively with rest.
Current symptoms
There is persistent pain over the lateral right hip region radiating down the lateral thigh. This increases with sitting for more than 30 minutes. She continues to have right wrist pain. Her right wrist feels weak and warm and inhibits her from doing household procedures such as mopping the floor.
The most severe pain is in the neck region associated with dizziness and occipital headaches which radiates to the temple region bilaterally causing a sharp pain. There was also radiation of pain from the neck to the trapezius muscles. She continued to have low back pain but the legs are otherwise asymptomatic.
Over the last 2 years, Mrs Mansour walked with the aid of a stick and avoids stairs. She now sleeps downstairs in her 2-level house. She continues to do the cooking, but her husband helps with the cleaning.
Current treatment
Present medication is Endep 25 mg at night, Targin 1 to 2 per day, Panadol forte one-a-day, Panamax 6 per day. She is having manual therapy by a physiotherapist/osteopath under a Medicare voucher for treatment of the neck and wrist. She consulted her general practitioner (GP) when necessary and has a follow-up with her new neurologist, Dr Cordato, on 24 April 2023 as there were side effects with the treatment he prescribed.
Radiology
No radiological studies were available for inspection.
CLINICAL EXAMINATION
Mrs Mansour walked into the room with a mild antalgic gait using a walking stick in the left hand. She stated she is right-handed and height was measured at 150 cm and weight 89 kg.
Cervical spine
On inspection there was significant kyphosis of the upper thoracic spine. On testing range of movement flexion/extension was 50% of expected range and side bending and rotation with 30% of expected range bilaterally with no asymmetry. On palpation there was tenderness over all the cervical spine and trapezius muscles but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were weak but symmetrical with normal power and a global decrease in sensation to light touch below the right elbow which was not in a dermatomal pattern. No muscle wasting was apparent with the circumference of the upper arms 31 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 25 cm bilaterally.
Lumbar spine
Mrs Mansour was unsteady on her feet and uses a walking stick in the left hand. She was unable to stand on her heels and toes or squat. On testing range of movement, flexion/extension and side bending were all 30% of expected range with poor balance. Straight leg raise when lying was 70° bilaterally and 80° when seated with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were weak but equal with normal power and a global decrease in sensation to light touch in the entire right leg. This was not in a dermatomal pattern. No muscle wasting was apparent with the circumference of the lower thighs 47 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 35 cm bilaterally.
Knees
On inspection of the knees no effusions were apparent and on testing no ligament laxity was noted. No crepitus was noted on passive movement of either knee. Flexion was 110° bilaterally with 0° extension.
Hips
Hip Movements
Active range of motion (ROM) Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
90°
Extension
0°
0°
Adduction
20°
20°
Abduction
20°
25°
Internal Rotation
20°
20°
External Rotation
20°
20°
Wrists
On palpation there was tenderness over the dorsum of the right wrist joint with a healed surgical scar. Mrs Mansour said that she is barely conscious of this scar. The colour match is barely distinguishable from the surrounding skin with no trophic changes and suture marks are barely visible. There are no contour effects and no effect on any activities of daily living. On testing range of movement, there is a slight loss in radial and ulnar deviation.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
60°
60°
Extension
60°
70°
Radial Deviation
10°
20°
Ulnar Deviation
30°
40°
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected in either shoulder. Active movements were measured using a goniometer and repeated 3 times. There was tenderness on palpation of both acromioclavicular (AC) joints.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°/80°
90°/80°
Extension
40°
50°
Adduction
40°
40°
Abduction
80°/90°/80°
90°
Internal Rotation
70°
80°
External Rotation
70°
80°
Mrs Mansour stated that the limitation in movement of both shoulders was due to pain in the axillary fold region and trapezius muscles. Medical Assessor Moloney explained to her that the range of movement of the right shoulder was better when recorded by Medical Assessor Home and she stated that today pain is limiting movement. Medical Assessor Moloney also explained to her that due to inconsistency with range of movement of the shoulder compared to other examiners, that range of movement could not be used to assess impairment and alternative methods such as by analogy would be needed. She stated that she understood this.
CONCLUSIONS
Right wrist
It is not disputed by the parties that Mrs Mansour sustained a fracture to the right wrist as a result of the accident. The Panel is satisfied on the basis of the history provided on re-examination to Medical Assessor Maloney and the documents relied upon by the parties, including the clinical treating records, that the circumstances of the motor accident were sufficient to cause a fracture to the right wrist. After the accident she was conveyed to Sutherland Hospital where an xray revealed a fracture of the right wrist which was treated by an open reduction and internal fixation by Dr Murad on 4 October 2018 at which time he also did a release of a carpal tunnel syndrome.
The right wrist can be assessed using range of movement. Using figure 29 and 28 of AMA 4, 10° radial deviation is 2% upper extremity impairment (UEI).
Shoulders
There is no documentation of any specific injury to the left shoulder and Mrs Mansour considered that the limitation in the left shoulder started 3 months after the motor accident. The claimant submits that the first report of a shoulder injury was two months after the motor accident. When the claimant first consulted her GP, Dr Malik, on 24 September 2018, she reported that she had injured her right arm and Dr Malik noted reduced range of motion in the right shoulder.[17] There is a certificate of capacity dated 27 November 2018[18] which refers to a diagnosis of “shoulder sprain” and Dr Malik records in his clinical notes that on 11 November 2018 he requested the claimant undergo an ultrasound of the right shoulder.[19] The Panel accepts the submission of the insurer that these references to injury to the shoulder refer to the claimant’s right shoulder, not left shoulder, during the period of 2 months after the motor accident. Dr Smith on 13 September 2019 recorded that there was a six-month history of left shoulder discomfort when he saw her 13 months after the motor accident. The Panel also notes and concurs with Medical Assessor Home’s comments in relation to the medical implausibility of any left shoulder condition being overshadowed by the right wrist injury, or there being a consequential (overuse) injury, given that the claimant had curtailed her activities following the motor accident.
[17] IB p.77.
[18] CB p.74.
[19] IB p.80.
The Panel has determined that there was no injury to the left shoulder joint sustained in the subject accident.
There was however documentation of a soft tissue injury to the right shoulder sustained in the subject accident. It was recorded by her GP, Dr Malik, and treating physiotherapist, and investigated by an ultrasound 3 months after the accident. Due to inconsistency in range of movement at the time of Medical Assessor Moloney’s examination and when compared to previous assessment, the most appropriate way to assess impairment is by analogy. Using the analogy of acromioclavicular crepitation and Tables 18 and 19 of AMA 4, this would be 25% upper extremity impairment (UEI) for the acromioclavicular joint, and under Table 19, 10% impairment for this results in 2.5% UEI which is rounded up to 3% UEI.
The Panel notes the submission of the insurer that the claimant’s right shoulder injury is a pre-existing injury in support of which it relies upon the claimant’s clinical records from consultations on 13 April 2012 and 15 September 2017 including a history of right shoulder fracture and the opinion of Dr Hyde Page that whilst the claimant had some stiffness in her right shoulder when he examined her, this appears to be age related. However, there is no documentation of actual impairment to the right shoulder at the time of the motor accident. Whilst there may have been pre-existing loss of ROM, this is not recorded just prior to the motor accident and accordingly there is no apportionment for pre-existing impairment including pre-existing degenerative changes.
Right hip/leg
In the opinion of the Panel the fracture at the top of the right femoral prosthesis which was diagnosed by Dr Molnar in December 2018 was sustained in the motor accident on 20 September 2018 and there has been a temporary aggravation of pain in the right hip region caused by the motor accident which has resolved. The ambulance officer recorded pain in both hips at the accident scene and Dean Zekis from Zekis Osteopathic Centre recorded right hip pain, instability, and an irritable hip on 5 December 2018[20]. Dr Hyde Page in March 2021 recorded a full range of movement of the right hip. After the fall which resulted in the right inferior pubic rami fracture in August 2021, the Sutherland Hospital notes recorded a normal hip range of movement[21].
[20] IB p. 207.
[21] IB p. 284.
The Panel has determined that the periprosthetic fracture to the tip of the right femoral prosthesis which was treated conservatively by the hip surgeon, Dr Molnar, has resolved with no further treatment required, and there is no assessable impairment (0%) for the right hip . Pursuant to clause 6.51 of the Guidelines, because the uninjured contralateral left hip joint has a less than average mobility, the impairment value(s) corresponding with the uninjured hip joint can serve as the baseline and are subtracted from the calculated impairment of the injured right hip joint, as there is a reasonable expectation that both hips would have had similar range of movement prior to the accident. The WPI is calculated as 2 % for each hip (on range of movement using Table 4 of AMA 4) and applying clause 6.52 of the Guidelines, 2% WPI for the right hip minus 2 % for the left hip equals 0% WPI for the right hip.
The claimant submits that the injury to the right hip in the fall in August 2021 was due to the weakened state of the claimant’s right hip since the motor accident in September 2018. The insurer submits that the precipitating cause of the claimant’s right hip complaints was the fall in August 2021 which broke the chain of causation between the motor accident and her current complaints and that there is no causal relationship between the right hip injury and the motor accident.
There is a history of the claimant undergoing a right hip replacement in 2012, a diagnosis of a fracture to the tip of the right femoral prosthesis by Dr Molnar in December 2018, after the motor accident, which was treated conservatively, and a fracture to the right pubic ramus in the fall in August 2021.
The subsequent inferior pubic rami fracture in August 2021 is separate from the fracture at the tip of the right femoral prosthesis sustained in the motor accident. Any pain from the subsequent fracture is not in the hip joint. Sutherland Hospital recorded a normal hip range of motion after the fall in August 2021 and Dr Hyde Page recorded a full range of motion in the right hip in March 2021 before the fall. The claimant’s assertion in her statement that pain and weakness in her right hip after the motor accident placed her in a weakened state as of September 2021 and was the cause of her fall at that time[22] is inconsistent with this medical evidence which is consistent with the Panel’s view that the initial fracture sustained in the motor accident is likely to have been well healed by the time of the fall in September 2021. The claimant’s evidence in her statement as to the cause of her fall in August 2021 is also inconsistent with the history she provided to Medical Assessor Moloney that on 26 August 2021 she was walking in her driveway and felt dizzy causing her to fall which resulted in a fracture to her right inferior pubic ramus.
[22] CB p..25 at para.15.
In the opinion of the Panel, it is more likely than not that the fall in August 2021 and the fracture of the claimant’s right inferior pubic ramus was not caused by weakness in her right hip since the injury to it in the motor accident. The panel finds that the injury to the claimant’s right hip in the motor accident in September 2018 did not cause or materially contribute to the fracture to her right pubic ramus in the fall in August 2021.
Cervical spine
There was documentation that Mrs Mansour had neck pain after the accident and in follow-up treatment consultations. She had cervical spine tenderness at Sutherland hospital on the day of the motor accident and this was investigated by a CT scan on the same day. This is best described as a soft tissue injury which the Panel accepts was caused by the motor accident.
On assessing impairment of the cervical spine, there was no dysmetria on testing range of movement and no guarding or spasm on palpation of the cervical musculature. There are no signs of radiculopathy or non-verifiable radicular complaints conformed to a dermatomal pattern. This results in a classification of DRE l which is 0% WPI using table 73 of AMA 4.
Lumbar spine
Mrs Mansour had low back pain documented by the ambulance officer and by a bone scan 6 days after the motor accident. In the opinion of the Panel the motor accident caused an injury to the lumbar spine which is best described as a soft tissue injury. On testing range of movement in the lumbar spine, no dysmetria was present, with no guarding or spasm on palpation of the lumbar musculature. There were no signs of radiculopathy or non-verifiable radicular complaints conformed to a dermatomal pattern in the lower limbs. This results in a classification of DRE l which is 0% WPI using table 72 of AMA 4.
Knees
Mrs Mansour stated that she fell on her knees at the time of the motor accident. The ambulance officer recorded bilateral knee pain. An x-ray of the right knee was undertaken on 18 May 2019 which shows the total knee replacement, and this was 8 months after the motor accident. The Panel accepts that the motor accident caused soft tissue injuries to the claimant’s left and right knees which have resolved. On examination, the range of movement is what would be expected after bilateral total knee replacements with no tenderness on palpation and no muscle wasting. The Panel has determined that the knees are unchanged as a result of the motor accident at the time of its examination. In other words, there is no ongoing injury as a result of the motor accident. In the opinion of the Panel, the accident-related contusions have resolved, with no assessable impairment (0%).
Chest
The Panel accepts that there was an initial soft tissue injury to the chest region caused by the motor accident, but this has resolved. Mrs Mansour stated that she had bruising to the upper chest region after the accident, and this was investigated initially by a CT of the thoracic spine and in December 2018 by a CT scan of the chest. The chest is now asymptomatic with no assessable impairment (0%).
The degree of permanent impairment of the claimant that has resulted from the injuries to the right upper extremity caused by the motor accident is 2% UEI for the right wrist, 3% UEI for the right shoulder and thus 5% UEI which in reference to AMA4 Table 3 results in 3%WPI.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[23] and Insurance Australia Limited v Marsh[24].
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the re-examination report of Medical Assessor Moloney in its reasons and makes the following findings for the reasons set out above.
The Panel finds that the accident on 27 September 2018 caused the following injuries to the claimant:
(a) right wrist – fracture to the distal radius;
(b) right shoulder – soft tissue injury;
(c) right hip – periprosthetic fracture to the tip of the femoral prosthesis;
(d) cervical spine – soft tissue injury;
(e) lumbar spine – soft tissue injury;
(f) right knee – soft tissue injury;
(g) left knee – soft tissue injury, and
(h) chest – soft tissue injury.
The Panel finds that the following injuries were not caused by the accident on 20 September 2018:
(a) left shoulder – soft tissue injury, and
(b) pelvis – fracture to the right inferior pubic ramus.
The Panel finds that the following injuries to the claimant caused by the accident on 20 September 2018 have resolved with no assessable impairment (0%):
(a) right hip – periprosthetic fracture to the tip of the femoral prosthesis;
(b) right knee – soft tissue injury;
(c) left knee – soft tissue injury, and
(d) chest – soft tissue injury.
The Panel finds that the degree of permanent impairment of the claimant that has resulted from the following injuries caused by the motor accident on 20 September 2018 is a total of 3% as follows:
a) right wrist and right shoulder (right upper extremity) – 3% WPI
b) cervical spine – DRE I – 0% WPI
c) lumbar spine – DRE I – 0% WPI
CONCLUSION
For the reasons set out above, the Panel revokes the certificate of Medical Assessor Home dated 16 June 2022. A replacement certificate is attached to the commencement of these Reasons.
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