Mansour v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 313
•5 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mansour v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 313 |
| CLAIMANT: | Ahmad Mansour |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | John O’Neill |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 5 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 7 May 2019 in a T-Bone collision; the dispute related to the assessment of permanent impairment; claimant re-examined; pre-existing history of right shoulder, cervical and lumbar spine pain; contemporaneous complaints of pain in same body parts following motor accident; claimant’s restriction of right shoulder movement was inconsistent during examination and unreliable; assessment made by analogy at 2%; examination of cervical spine did not show radiculopathy as they were not in a dermatomal distribution; cervical and lumbar spine showed no signs consistent with an assessment of diagnosis related estimates (DRE) Category II; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment The Panel confirms the certificate dated 13 November 2022. |
REASONS
BACKGROUND
Mr Ahmad Mansour (the claimant) suffered injury on 7 May 2019 when his vehicle was involved in a T-bone collision with the insured vehicle.[1]
[1] Claimant’s bundle, p 16.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Mansour any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in dispute is whether Mr Mansour’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 clause 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.[3]
[3] 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 Cameron and dated 13 November 2022 (the medical assessment). The Medical Assessor assessed the degree of permanent impairment at 2%. The details of that assessment are set out later in these Reasons.
The Medical Assessor also assessed a treatment dispute. There was no application seeking to review that certificate.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury 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 (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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
ASSESSMENT UNDER REVIEW
[9] See section 3B(2) of the Civil Liability Act 2002.
Medical Assessor Cameron found that the motor accident caused soft tissue injuries to the cervical spine, right shoulder, head and lumbar spine which was assessed at 2% permanent impairment.
The Medical Assessor held that the claimant did not sustain a brain injury and did not suffer from radiculopathy.
The Medical Assessor assessed the right shoulder at 2% with no other assessable impairments.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
A medical certificate dated 1 October 2015 referred to right shoulder, mid and low back and neck injury.[10]
[10] Claimant’s bundle, p 219.
An MRI scan of the cervical spine dated 3 November 2015 showed marked right C5/6 and left C6/7 foraminal stenosis.[11] An MRI scan of the lumbar spine at that time showed no abnormality.[12]
[11] Claimant’s bundle, p 203.
[12] Claimant’s bundle, p 207.
An MRI scan of the right elbow dated 1 March 2016 showed mild tendinosis of the common extensor.[13]
[13] Claimant’s bundle, p 206.
An MRI scan of the right shoulder dated 3 March 2016 showed a small intrasubstance tear at the supraspinatus insertion with diffuse tendinosis.[14]
[14] Claimant’s bundle, p 205.
In 2016 Dr Porteous assessed the claimant’s cervical and lumbar spine at DRE Category II and assessed loss or range of the right shoulder at 4%.[15]
[15] Insurer’s bundle, p 92.
Pre-accident clinical notes of Dr Behary, general practitioner (GP) in 2018 refer to low back, neck and right shoulder pain.[16]
[16] Claimant’s bundle, p 161.
Clinical notes of the GP in 2019 prior to the motor accident refer to low back, neck and right shoulder pain.[17]
[17] Claimant’s bundle, p 163.
A report by the GP dated 14 March 2019 referred to chronic neck, low back and right shoulder pain with associated anxiety and depression caused by the 2015 motor vehicle accident.[18]
[18] Claimant’s bundle, p 230.
Medical Assessor Preston provided an assessment dated 23 February 2017 for the 2015 motor accident.[19] The Medical Assessor found an aggravation of pre-existing degenerative changes in the cervical and lumbar spine with the right shoulder and right elbow injuries having resolved. The cervical and lumbar spine were assessed at 0% impairment. The Medical Assessor found that there was restriction in movement of the right shoulder from “cervical spine musculature” which was assessed at 2%.
[19] Claimant’s bundle, p 419.
In a statement dated 2 June 2017 the claimant referred to ongoing neck, back and right shoulder pain with associated depression and anxiety.[20]
Contemporaneous records
[20] Claimant’s bundle, p 500.
Canterbury Hospital discharge dated 7 May 2019 noted the motor accident with airbag deployment causing right shoulder discomfort and paraesthesia in the right hand.[21] Previous motor accident was noted with nerve root injury and chronic paraesthesia and weakness of the right hand.
[21] Claimant’s bundle, p 46.
The GSC score was 15 and the claimant was described as alert and orientated with no external head injury visualised.
Clinical records
The clinical note of the GP dated 8 May 2019 referred to neck, upper and lower back and right shoulder pain following the recent motor accident.[22] A certificate of capacity dated 27 May 2019 referred to the motor accident causing disc lesions in the cervical and lumbar spine and chronic right shoulder pain.[23]
[22] Claimant’s bundle, p 180.
[23] Claimant’s bundle, p 190.
Claim form
The claim form dated 30 May 2019 referred to the motor accident causing injuries to the neck, head, right shoulder, upper and lower back and depression.[24]
[24] Claimant’s bundle, p 18.
Subsequent physiotherapy treatment with Physio Interactive was to the neck, right shoulder and low back.
Specialist treating records
In August 2020 Dr Yu recommended right sided C5/6 block injections.[25] A subsequent report by Dr Yu indicated that the claimant received no relief from this injection.[26]
[25] Claimant’s bundle, p 127.
[26] Claimant’s bundle, p 131.
Dr Ivan Popoff, surgeon, provided a report dated 19 August 2020 noted tenderness over the greater tuberosity and superior trapezius consistent with a rotator cuff tear and co-existing with right sided radiculopathy.[27] The doctor recommended arthroscopic rotator cuff repair and opined that the signs and symptoms were caused by the motor accident.
[27] Claimant’s bundle, p 44.
On 2 February 2021 Dr Noore, psychiatrist and pain physician, noted the claimant presented with neck and radicular arm pain, right shoulder pain, major depression and other health issues.[28]
[28] Claimant’s bundle, p 36.
In a subsequent report dated 19 July 2021,[29] Dr Noore noted that pain radiating down the right arm into the third, fourth and fifth fingers and right shoulder pain. Subsequent reports confirmed this history.[30]
[29] Claimant’s bundle, p 38.
[30] Claimant’s bundle, p 135.
Radiology
An MRI scan of the cervical spine dated 30 September 2019 showed no evidence of a disc protrusion with significant spondylotic narrowing of the right C5/6 and left C6/7 foramina with potential compromise of the right C6 nerve root and left C7 nerve root.[31]
[31] Claimant’s bundle, p 48.
An MRI scan of the lumbar spine dated 3 October 2019 was essentially normal.[32]
[32] Claimant’s bundle, p 49.
An ultrasound of the right shoulder dated 17 March 2020 showed a partial thickness tear of the anterior supraspinatus with thickened bursa.[33]
[33] Claimant’s bundle, p 50
An MRI scan of the right shoulder dated 30 July 2020 showed moderate AC joint degeneration, partial thickness articular surface tendon avulsion of the supraspinatus tendon and tendinosis.[34]
[34] Claimant’s bundle, p 51.
A CT scan of the cervical spine dated 29 March 2021 showed degenerative disease at C4/5, C5/6 and C6/7 with multiple levels of foraminal stenosis most marked at C5/6 (right).[35]
[35] Claimant’s bundle, p 140.
Qualified opinions
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 9 March 2021.[36] The doctor noted the prior motor accident in 2015 causing neck, right shoulder and elbow symptoms which “continued to be symptomatic at the time of this accident”.
[36] Claimant’s bundle, p 29.
Dr Bodel noted sensory loss in the C7 distribution and diminished right triceps reflex. The impairment was assessed at DRE Category III for the cervical spine based on radiculopathy, 10% impairment of the right shoulder and 0% for the lumbar spine resulting in an overall impairment of 24%. The doctor deducted one-third due to the 2015 motor accident.
Dr Andrew Porteous, occupational physician was qualified by the claimant and provided a report dated 29 November 2022.[37] On examination the doctor found a mild C7 radiculopathy based on subtle right biceps weakness and reduced light touch sensation.
[37] Claimant’s bundle, p 22.
The doctor noted a prior motor accident in 2015 causing cervical, right arm and right shoulder symptoms which were “settling at the time of the 2019 accident”. Dr Porteous assessed cervical spine impairment based on radiculopathy (DRE Category III) and loss of range of right shoulder movement giving an overall impairment of 20%.
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 7 December 2021.[38] The doctor noted that the hospital notes did not support either a head strike or amnesia. Right hand symptoms were described in the hospital notes as chronic.
[38] Insurer’s bundle, p 43.
On examination, Associate Professor Shatwell found no neurological problems in the lower limbs. He described “gibe way weakness” in the right wrist with no muscle wasting to correlate with the reduced grip strength. There was no objective sensory loss and reflexes were symmetrical in the upper limbs.
Associate Professor Shatwell opined that the present symptoms were unlikely to be related to the motor accident which was a low-speed collision with no external signs of injury visible at hospital. The doctor noted that the “symptoms appear similar to those experienced following the motor accident of 25 September 2015”.
He opined that the shoulder tear shown in 2016 had progressed over the five-year interval to a full thickness tear. The right shoulder surgery that was required was unrelated to the motor accident. The doctor opined that any soft tissue injuries sustained in the motor accident resolved within a short period.
SUBMISSIONS
Claimant’s submissions undated[39]
[39] Claimant’s bundle, p 1.
These submissions were filed seeking to review the Medical Assessment.
The claimant submitted that the Medical Assessor dismissed the certificate of Medical Assessor Preston whose findings were inconsistent with the Medical Assessor.
The claimant submitted that the claimant’s radiculopathy was evidenced by:
(a) post-accident scans in September 20019 and March 2021 which showed compromise on the right C6 nerve root which were not present in November 2015;
(b) in August 2020, Dr Goldberg noted right-sided radicular symptoms;
(c) Dr James Yu prescribed Pregabalin for anti-neuropathic pain;
(d) referral for right C5/6 facet block under Dr Yu in September 2020;
(e) Dr Noore noted neck and radicular complaints and pain radiating into the third, fourth and fifth fingers (report dated 19 July 2021);
(f) notes of Dr Yu, and
(g) consistent history of shoulder, neck and referred pain.
The claimant submitted that there was an aggravation of a pre-existing cervical spine condition. The Medical Assessor failed to “assess the full extent of the aggravation” as is evident from the “manifested neurological deficits”.
The findings of the Medical Assessor on the Nguyen principle were inconsistent with the numerous clinical entries. This is clear from the previous certificate of Medical Assessor Preston who found referred pain into the upper extremity.
There was a clear aggravation of a supraspinatus tear which was not a minor injury evidenced by the contemporaneous medical investigations. The finding of inconsistency made by the Medical Assessor was inadequate and unreasonable and he did not explain his findings.
Insurer’s submissions dated 9 September 2021[40]
[40] Insurer’s bundle, p 6.
The insurer noted that the claimant was receiving income protection benefits at the time of the motor accident based on chronic neck, low back and right shoulder pain and associated anxiety and depression.
The insurer referred to the hospital notes which recorded chronic right shoulder complaint and right-hand symptoms. At that time, he had a good active range of movement of the neck and no spinal injuries.
Insurer’s submissions dated 16 January 2023[41]
[41] Insurer’s bundle, p 1.
The insurer referred to the opinion of Associate Professor Shatwell who found that the post-accident investigations were similar to those taken after the 2015 motor accident. That doctor found no clinical signs of nerve root impingement.
The insurer referred to the clinical notes at hospital of chronic right shoulder pain and chronic paraesthesia and weakness of the right hand indicating that these symptoms were pre-existing.
Further, the inconsistency observed by Medical Assessor Cameron was noted by Associate Professor Shatwell.
RE-EXAMINATION
Mr Mansour was examined by Medical Assessor Gibson. The examination report is as follows:
“Mr Mansour was unaccompanied to the assessment. He had brought with him an MRI scan of right shoulder dated 29 July 2020, which was reviewed.
Pre-Accident Medical History
Mr Mansour was involved in a motor vehicle accident in 2015 and sustained injuries to his neck, right shoulder, mid and low back. He said he had submitted a claim, and this was finalised a long time ago.
He emphasised that at the time of the subject accident he was ‘back on track’ and ‘looking for work.’ He added that the subject accident had then ‘destroyed me.’ On direct questioning, he denied having had any ongoing symptoms relating to this accident for at least six months prior to the subject accident. He was asked about the fact that he was still in receipt of Income Protection. He confirmed that payment had been ongoing and continuing since the 2015 accident. When asked why, if he had been asymptomatic and his injuries had recovered from the earlier accident, he had not managed to make a return to work. He said that he could not work 40 hours per week as he was ‘only allowed to work 15 hours per week’ and he indicated that his restrictions were put in place by his general practitioner.
There was no additional history of any motor accidents or work or other injuries. There were no relevant medical or surgical issues.
Relevant Personal History
Mr Mansour confirmed that he is not currently working.
He said he had been employed as a chef in the past. He had been working as a labourer (not trade qualified) in a panel beating shop for 2-3 years leading up to the subject accident. He said that after the earlier accident (2015) this business had been sold and the new owner ‘didn't want’ him there.
History of the Subject Accident
Mr Mansour had been a seat-belted driver. It was about 8pm in the evening when a collision occurred at a T-intersection. The other vehicle had gone through the stop sign and then collided with the driver side of Mr Mansour's car. He thinks he may have hit the side of his head at the point of impact, and was momentarily knocked out, however, he had not been thrown into the steering wheel. He had then managed to push the door open and get himself out of the car. He was concerned about the smoke from the air bags. He said both doors of his vehicle were damaged.
Ambulance, fire brigade and police had attended the scene.
He was conveyed to Canterbury Hospital.
The clinical notes were available from Canterbury Hospital and noted that he ‘cannot recall head strike during event’. He was complaining of right shoulder discomfort associated with paraesthesia in the right hand. The doctor commented that the latter was ‘chronic’ but nevertheless exacerbated by the subject accident. They go on to note that there had been a previous motor vehicle accident with ‘nerve root injury and chronic paraesthesia/weakness of right hand.’
The doctor had noted the hospital records had indicated ‘no significant injury’ and that there had been discussion around cervical spine imaging, but it was decided this could be cleared clinically due to the ‘likely chronic symptoms.’ Examination findings were of ‘no midline cervical tenderness/good active movements of neck.’
I asked Mr Mansour about these entries. He at first disputed the reference to chronic and then stated that he could not recall exactly, especially as his memory had been poor since the accident.
He visited his general practitioner, Dr Behara, the following day. Dr Behara referred him to Physio Interactive in Arncliffe.
Mr Mansour had subsequently come under the care of Dr Ivan Popoff and
Dr Jerome Goldberg. He said that he had seen Dr Goldberg initially and he referred him to Dr Popoff because the former was no longer operating.
He had attended pain management services at a private hospital in Hurstville where he had been seen by Dr Yu and Dr Noor.
Mr Mansour denied having suffered any injuries or conditions since the subject accident.
Current Symptoms
Mr Mansour said he was ‘not good’ and added that ‘I'm in pain daily.’ The neck pain is there most of the time, rated at 7-9/10 severity (0 being no pain and 10 being worst pain), today was 8/10 severity. He said that his neck is painful with movements to the left or right and the pain spreads toward his right shoulder, and he indicated the right trapezius region. He added that he was starting to have pain in the other shoulder as well from constantly sleeping on the left side. His sleep is disturbed by the pain.
He said there is numbness in all the fingers of his right hand and a numb feeling, and the fingers feel swollen. At times the whole arm is stiff and numb, especially if he bends his right elbow.
He said that his right shoulder is ‘not good.’ When asked where the pain was, he said that ‘everywhere in the right shoulder’ and he ‘can't explain where it is’ but nevertheless he is ‘always in agony.’ He finds his situation ‘frustrating’ and he reported some annoyance in not having the requested surgery approved.
In relation to the lumbar spine, he said this was ‘better’ and the pain is not as severe as his neck or right shoulder. He thinks the low back pain may arise from his sleeping position.
He denied having any symptoms in either lower limb.
He again reported that his memory was poor. He feels anxious and upset and finds he is ‘not happy with himself’.
Current Treatment
Mr Mansour visits his general practitioner on an approximately weekly basis. There were no other treating doctors. The general practitioner provides laser acupuncture.
He said his general practitioner had prescribed Panadeine Forte and he had been taking in the vicinity of 4-5 tablets every day for about two years, maybe more. However, his general practitioner is now refusing to provide repeat scripts of the medication. He uses 3-4 Nurofen Zavance (Ibuprofen) tablets on a daily basis. He has been taking the antidepressant, Zoloft on a daily basis for almost three years. He has some Lyrica at home and he would generally take a tablet three times a week. He said that in the past he had been using a Norspan patch for over 12 months, and then had "problems getting off it" due to withdrawal symptoms. There was no other treatment.
Mr Mansour had indicated that he had participated in a pain management program over twelve months in 2020. His last visit to the service was 2021. Despite these interventions, his pain symptoms are still poorly controlled. He indicated that he had visited Professor Murrell, Shoulder Surgeon, last month. He had paid for the assessment personally and Professor Murrell had suggested he have some imaging performed.Physical Examination
Mr Mansour was 169cm tall and weighed 76kg. He had a normal gait. He could walk on heels and toes. He appeared to be protective of his right shoulder when dressing and undressing.
On examination of the cervical spine, flexion and extension were to half normal, lateral flexion was to half normal bilaterally and rotation was to half normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
There was tenderness over the right trapezius and right infrascapular region and right side of the neck.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. There was no muscle wasting. There was normal power and reflexes in both upper limbs. There was reduced sensation affecting the entire right arm (non-radicular).
On examination of the shoulders, movements were normal on the left, but restricted on the right. Measured movements were repeated only twice on the affected side, due to complaints of pain and were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 55 °40 ° 180 ° Extension 35, 40 ° 50 ° Internal Rotation 20 °40 ° 80 ° External Rotation 20 °40 ° 80 ° Abduction 45 ° 65 ° 180 ° Adduction 30 ° 10 ° 50 °
Movements of the elbow, wrist and hands were normal range.
When asked about how the measured shoulder movements compared with the original assessor's report, he said he had told Assessor Cameron on the day of the assessment that he was ‘feeling better today’. He added that his shoulder pain and restriction was ‘not every day the same.’
On examination of the lumbar spine, there was tenderness in the midline and across the lower back. Flexion and extension were to half normal, lateral flexion was to two-thirds normal and rotation was two-thirds normal. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting. There was normal power, sensation and reflexes.
Straight leg raise was 45 degrees bilaterally. Neurotension signs were negative bilaterally.
Mr Mansour is a 58-year-old man who was involved in the subject accident on 7 May 2019. He had sustained soft tissue injury to cervical spine, right shoulder and lumbar spine.
Permanent Impairment
Cervical Spine: Mr Mansour had no clinical findings and therefore would satisfy the criteria for DRE Cervicothoracic Category I, 0% whole person impairment. In particular, there was no muscle wasting, muscle spasm, guarding or asymmetry and no radicular complaints. There was also no evidence of radiculopathy.
Right Shoulder: Shoulder movements were inconsistent when compared to previous reports and there was inconsistency present at the panel assessment. When asked about this, he had indicated that there was variability day to day, depending upon the degree of his pain.
There was imaging evidence for partial tendon tears and AC joint degeneration. Because goniometer measurements could not be used, due to inconsistency permanent impairment is assessed by analogy. The MAA Guidelines permit assessment to be completed by analogy. The subject accident related shoulder impairment may be considered analogous to MILD intermittent acromioclavicular joint crepitation. This is because the movement restriction is variable Referring to Table 19 AMA4 there was 10% joint impairment, then using Table 18 AMA4 for acromioclavicular joint, 10% of 15% WPI, gives 1.5% WPI, and rounding this to the next closest integer, gives 2% WPI.
Lumbar Spine: Mr Mansour had no significant clinical findings, in particular no muscle spasm, guarding or asymmetry. There were no radicular complaints. Lower limb neurology was normal, therefore there was no radiculopathy. Thus, he would satisfy the criteria for DRE Lumbosacral Category I, 0% whole person impairment.
Treatment
Mr Mansour had sustained at a minimum some exacerbation of his neck and right upper limb symptoms as a consequence of the subject accident. And it was only following the subject accident that this treatment was instigated. Therefore, the subject treatment is related to the subject accident.
Mr Mansour had already undergone a program of pain management in 2020 and 2021, but nevertheless appears not to have responded to these interventions. He had indicated today that the transdermal Norspan prescribed has been discontinued and that he is using a difference non-steroidal than that was recommended by Dr Noore. Thus, further consultations with Dr Noore are not reasonable and necessary in the face of there being no sustained improvement.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42] The Panel adopts the examination findings of Medical Assessor Gibson and adds the following brief reasons.
[42] Section 7.26(6) of the Act.
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 Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21], [64].
Head injury
Mr Mansour was taken to Canterbury Hospital on 7 May 2019. At the hospital it was noted:
“Airbags deployed. Nil amnesia to events but cannot recall head strike during event. Able to self-extricate and mobilise after accident. Called ambulance as after accident felt dizzy. Nil headache.”
It was noted that Mr Mansour was alert and oriented. The Glasgow Coma Score (GCS) was 15. No external head injury was visualised.
A precautionary CT brain scan was not felt necessary, and the impression was of “MVA with no significant injury”.
Mr Mansour saw his GP on 8 May 2019 when he complained of “neck pain, upper back pain, mid back pain, right shoulder pain, dizziness and headache”. At consultations on 12 and 27 May, 4 July, 9 August and 23 September 2019 “occipital headache” was mentioned amongst other pain complaints.
At no stage did the GP or other treating doctors feel there was any necessity for a CT or MRI brain scan.
Medical Assessor Ian Cameron obtained the history from Mr Mansour that he “felt he lost consciousness for a short time, but he remembers the scene of the crash. The airbags deployed”. The Medical Assessor noted that there had never been evidence of a contusion to the brain and thought any possible head injury should be regarded as “soft tissue injury”.
In terms of impairment there had never been any reported abnormalities in GCS, post-traumatic amnesia or brain imaging and the criteria required by cl 6.164 of the Guidelines are not satisfied.
Based on these facts, there has been no head injury of the type which would give rise to permanent cognitive impairment and any assessment of permanent impairment.
Right shoulder injury
The claimant’s submissions emphasised the right shoulder pathology shown in the July 2020 scan as well as any referred loss from the cervical spine condition.
We note that there is contemporaneous right shoulder pain at hospital in the context of clinical records of the GP referring to right shoulder symptoms in March 2019. Whilst it is medically plausible that the right shoulder may have been indirectly injured through tension through the seatbelt, there was no history provided by the claimant of direct trauma to the right shoulder.
The examination findings of Medical Assessor Gibson show gross variation in range of movement within the recent examination. Further, the substantial restriction in range of movement measured by the Medical Assessor does not reflect the shoulder pathology.
Due to the inconsistent examination findings, Medical Assessor Gibson has otherwise explained the basis for the assessment of the right shoulder impairment.
Lumbar spine
The claimant was suffering from chronic pre-existing lumbar spine evidenced by the clinical notes of the GP in 2019.
The post motor accident lumbar spine scan was essentially normal. The scan evidence is consistent with the claimant suffering a soft tissue injury.
The Panel otherwise notes the examination findings of the Medical Assessor which show that the lumbar spine is assessed at DRE category I. That conclusion is consistent with an essentially normal MRI scan.
Cervical spine
There is contemporaneous evidence of aggravation of cervical spine symptoms. This is consistent with the nature of the motor accident which would impose a flexion type injury on the cervical spine.
The claimant in his submissions referred to previous findings of radiculopathy although some of the “symptoms” were actual radicular signs.
The Panel is acutely aware of this issue between the parties and note the previous findings referenced in the claimant’s submissions.
Radiculopathy is determined at the time of examination. The examination findings of Medical Assessor Gibson are clear that the claimant did not have signs of radiculopathy. Further, the claimant’s global complaints of upper extremity symptoms self-evidently are not radicular signs as they are not in a dermatomal distribution. There were otherwise no symptoms justifying an assessment of DRE Category II.
The assessment of the cervical spine is DRE category I.
Pre-existing or subsequent injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[45] concerning the issue of onus.
[45] [2022] NSWPICMP 66 at [118]-[120].
Clause 6.31 of the Guidelines requires a deduction for “pre-existing impairment” if “there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.
The claimant advised Medical Assessor Gibson that his pre-existing condition had resolved some six months prior to the motor accident. That history is inconsistent with the clinical notes at hospital which suggest a pre-existing condition, Dr Bodel’s history that the claimant was symptomatic, the fact that the claimant remained on income protection benefits at the time of the motor accident and the clinical notes of the GP in March 2019.
With some reservations, the Panel has not made any pre-existing deduction based on the prior assessment provided by Medical Assessor Preston.
CONCLUSION
The claimant is assessed at 2% impairment for the right shoulder. The original certificate is confirmed.
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