Miles v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Miles v QBE Insurance (Australia) Limited [2024] NSWPICMP 774
CLAIMANT:	Dallas Miles
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	19 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); permanent impairment; certificate of Medical Assessor (MA) Kenna dated 23 August 2023 assessed claimant had 6% whole person impairment; accident on 18 February 2019 when insured car rear-ended the claimant’s motorbike; MA Kenna examined claimant when claimant was experiencing psychological and physical breakdown; Commission referred upper and lower limb injuries with cervical and lumbar spine injury to assess; insurer and MA Kenna rejected accident nexus with spinal conditions due to lack of contemporaneous complaint; claimant had right ankle condition before accident; left ankle injured in accident; frank injuries in right shoulder and right knee with consequential injuries claimed in opposite limbs; re-examination after claimant underwent extensive inpatient psychiatric treatment; claimant was cooperative and consistent; accident was capable of causing all referred injuries; 24% permanent impairment; different clinical findings; Held – different clinical findings to original assessment; Medical Review Panel revoked original Medical Assessment Certificate; permanent impairment greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel has found the accident caused injuries with a percentage permanent impairment of 24%. The total whole person impairment is greater than 10%. 2. The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Kenna’s certificate dated 27 August 2023. 3. Accordingly, the Review Panel will revoke that certificate and issue a new Permanent Impairment Certificate.

REASONS

BACKGROUND

Dallas Miles (claimant) was injured in a motor accident on 18 February 2019.
The insurer bears the liability for the claim for damages arising from the claimant's injuries.
There is a dispute between the parties about the degree of the claimant's permanent impairment resulting from injuries caused by the accident. The claimant referred the dispute to the Personal Injury Commission (Commission) following s 2 (a) of schedule 2 of the Motor Accident Injuries Act 2017 (MAI Act) for a Medical Assessor to determine.
The Commission referred the following injuries for assessment on the question of permanent impairment:
·        ankle – left ankle anterior talofibular ligament tear;
·        cervical spine – aggravation of underlying degenerative changes;
·        clavicle – right clavicle fracture requiring surgery;
·        knee – left knee chondral with meniscal injury;
·        knee – right knee traumatic chondromalacia patellae;
·        lumbar spine – lower back injury;
·        shoulder – left shoulder pain developing due to increased reliance on left arm to protect right arm, and
·        scarring.

Medical Assessor Clive Kenna examined the claimant on 9 August 2023 and issued a certificate dated 27 August 2023.
The Medical Assessor found the accident caused the following injuries which he assessed at 7% permanent impairment, which is not greater than 10%:
(a)    fracture – mid shaft of right clavicle;
(b)    multiple rib fractures – right lateral chest wall, which is since healed, and
(c)    scarring – right shoulder and right knee.
The Medical Assessor also determined the lumbar spine soft tissue injury had resolved.
The claimant applied to the President of the Commission under s 7.26 of the MAI Act to refer the assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect.
Specifically, this referred to the claimant's state of mind and physical demeanour when Medical Assessor Kenna examined him. The claimant has suffered significant psychiatric conditions requiring inpatient care involving licit and illicit use of medications. The claimant's lawyers submitted the claimant was in such a distressed state when he presented for examination that he was not fit to participate in the examination. Medical Assessor Kenna noted that it was only possible to perform a "fairly rudimentary examination".
The Commission’s presidential delegate Catherine Freeman referred the medical assessment to a Review Panel (this Panel) on 18 January 2024.

STATUTORY PROVISIONS

The statutory provisions, relevant case law on causation and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.

Assessment under Review

Medical Assessor Kenna’s findings are summarised in Appendix B.

Matters considered and decided by the Review Panel

The Panel met on 13 March 2024 to discuss how this matter may proceed.
The Panel discussed the circumstances of the original assessment and the claimant’s lawyers submissions that the claimant required further inpatient care for his mental health conditions. The Panel decided it was appropriate to delay the examination to a time when the claimant was mentally well enough to participate and interact with the Medical Assessors.
The Panel considered it was necessary to re-examine the claimant. Medical Assessors Gorman and Dixon agreed that if it were possible they would examine the claimant together on the Panel’s behalf on a date to be fixed.
Ultimately, this was not possible due to scheduling clashes and Mr Miles’ inpatient admission. Eventually, Medical Assessor Dixon was able to examine Mr Miles on
5 September 2024 when he attended at Medical Assessor Dixon’s rooms at Hornsby.
The Panel considered the parties’ submissions set out at Appendix C.

Documentation

The Panel also considered the documentation in the parties’ bundles. Medical Assessor Dixon summarised the relevant documents in his report.

REVIEW PANEL FINDINGS

EXAMINATION REPORT

History of motor vehicle accident

The claimant told Medical Assessor Dixon he had been riding his motorbike on 18 February 2019 when he was rear ended by a car and fell off his motorbike onto the road onto his right side. He was wearing a helmet at the time and told first aid there was no loss of consciousness and he had no amnesia about the accident details.
He experienced immediate pain in his right shoulder, ribs and right knee and was transferred to Nepean Hospital where X-rays showed a fracture of his right clavicle. He had open reduction and internal fixation with plate and screws on 15 March 2019. He had physiotherapy treatment which was interrupted by the COVID-19 pandemic. His general practitioner (GP) referred him for psychological counselling as he developed post-traumatic stress disorder, and he was also referred to a psychiatrist.

Past health

He injured his right ankle in a work related accident in 2012 for which he had a successful calcaneal osteotomy in 2013.
He has a history of admissions to a psychiatric unit for post-traumatic stress disorder arising from this accident as well as a history of being psychologically unwell due to personal stressors before the subject accident.
He has put on a lot of weight since the subject motor vehicle accident due to inactivity, which is also impacting on his recovery. This has been noted in the original assessment and in Associate Professor Shatwell’s reports[1] where he referred to the weight gain as being the aggravating source of his orthopaedic conditions.
[1] 19 December 2022, 9 February 2023, and 3 May 2023.

Treatment

The claimant told Medical Assessor Dixon he was taking two Panadeine Forte four times a day and using CBD oil which gave him some mood elevation and pain relief and allowed him to sleep. He advised he was not doing any formal physiotherapy and had not been given any hydrotherapy since the subject accident.

Current symptoms

During the examination on 5 September 2024, he had some pain in his neck with bilateral shoulder brachalgia[2] with trapezial muscle pain and has pain and stiffness in his right shoulder with difficulty elevating the arm above shoulder height and residual pain in his right ribs. He reported that he still had anterior pain in his right knee due to a direct blow in the subject accident and that while favouring that knee, the left knee gave way on one occasion. That incident injured the left knee.
[2] Brachalgia or brachialgia is arm pain associated with pressure on cervical nerves.
He has difficulty walking because of knee complaints and has pain in his lower back with lumbar stiffness with some buttock radiation.
He reported pain and stiffness in his left ankle where he had been diagnosed with an anterior talofibular ligament tear but had a reasonable function of his right ankle.
The certificate dated 9 August 2023 noted the claimant had suffered from peroneal muscle dystrophy.[3]
[3] Peroneal muscle dystrophy is a hereditary motor and sensory neuropathy of the peripheral nervous system characterized by progressive loss of muscle tissue and touch sensation across various parts of the body.
He has developed some pain and stiffness in his left shoulder due to overuse while protecting his right shoulder.

Examination

On examination Mr Miles was 6’3” tall and weighed 160kg. He presented in a straight forward manner.
There was stiffness of his cervical spine with flexion decreased by one quarter with pain in the mid line on neck extension which was decreased by one third. Lateral flexion was decreased by one third bilaterally associated with pulling pain of the right trapezius muscle and lateral flexion to the left and his lateral rotation was decreased by one half to the right and one third to the left. There was tenderness and spasm of both trapezius muscles today. His brachial plexus stretch tests were negative and his cervical foraminal compression tests were negative and the supraclavicular brachial plexus tests were non-tender.
There was a 10cm transverse scar at his right clavicular region where he had an open reduction and internal fixation (ORIF) performed.[4] The hardware remains in place. The scar showed pigmentary change and although Mr Miles had applied a tattoo to cover the scar, it was still readily visible, and it was tender. He was able to readily localise the scar which is visible when wearing a singlet or swimming costume.
[4] Open reduction and internal fixation (ORIF) surgery is a procedure to repair broken bones by realigning them and securing them with metal implants. ORIF is typically used for serious fractures that cannot be treated with a cast or splint.
There was stiffness on elevation of his shoulder with forward flexion 100 degrees, active abduction 90 degrees with some impingement, adduction was 20 degrees and associated with pain and extension was 30 degrees, external rotation was 60 degrees, and internal rotation was 40 degrees. His shoulder girdle power on the right was grade 4 out of 5 and there was tenderness of the trapezius muscles and posterolateral deltoid muscle on the right.
There was stiffness on the elevation of his left shoulder, which he reports is due to overuse, with forward flexion 150 degrees, active abduction 130 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees. Shoulder girdle power on the left was grade 4 plus out of 5.
He had a full range of motion of his elbows, wrists, and hands. There was sensory loss in the thumb, middle and ring fingers of his right hand. This was associated with a positive Tinel’s sign[5] at the right wrist and a positive Phalen’s test.[6]
[5] Tinel's sign is a way to detect irritated nerves. It is performed by lightly tapping over the nerve to elicit a sensation of tingling or "pins and needles" in the distribution of the nerve.
[6] The Phalen's test or 'reverse prayer' is performed by having the patient fully flex the wrists by placing dorsal surfaces of both hands for one minute.
There was 2cm of wasting of his right upper arm, 10cm above the elbow crease measuring 38cm on the right and 40cm on the left and his right forearm, 10cm below the elbow crease, measured 33cm and the left forearm was 32cm. He is right handed. His grip strength, thenar power and intrinsic power were grade 5 out of 5 bilaterally.
He reported pain in the right side of his chest and on deep inspiration, his chest expansion was 3cm out of 5cm. He reported some pleuritic pain on deep inspiration but was not short of breath.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with pain on back extension which was decreased by one third and lateral flexion decreased by one third bilaterally. His straight leg range was 60 degrees on the left and associated with low back pain and was 70 degrees on the right. There was no neurological deficit of either lower extremity with symmetrical reflexes and power was grade 5 out of 5 and there were no objective sensory changes. His sciatic nerve root stretch tests were negative. His plantar responses were negative.
There was stiffness of his left ankle with dorsi flexion minus 5 degrees and plantar flexion 20 degrees and sub talar joint motion was full. On the right where he had a calcaneal osteotomy with a surgical scar laterally, there were full range of motion of the ankle and sub talar joint.
There was 2cm of wasting of his right thigh measuring 60cm, 10cm above the pole of the patella and 62cm on the right. There was no wasting of either leg below the knee, measuring 46cm bilaterally. There was a retropatellar crepitus in his right knee with tenderness of the patella margins and the range of motion of the right knee was 0 degrees through to 120 degrees. The range of motion of his left knee was 0 degrees through to 110 degrees. Both knees were stable.
His normal gait was slow, and he had difficulty toe walking and heel walking was associated with pain in his right knee and his squat test was associated with pain in his left knee, ankle, and low back pain. He did not require a walking stick while gait testing.
Power in the lower limbs was grade 5 out of 5 and there were no sensory changes and his reflexes were symmetrical.

Investigations

·        Investigations include an X-ray from Nepean Hospital which noted a comminuted fracture through the mid third of his right clavicle and acute right sided rib fractures from the second to the seventh ribs;
·        MRI of his right knee on 7 August 2019 showed pre patella bursitis and a small joint effusion and the menisci appeared normal;
·        CT of the right shoulder on 28 January 2021 noted ORIF with plate and screws of the clavicle with satisfactory bony alignment and the AC joint appeared intact and the glenohumeral joint and scapula were normal;
·        CT of the left knee on 28 January 2021 showed a peri meniscal cyst at the medial meniscus;
·        X-ray of the right knee on 28 January 2021 showed early degenerative change at the patellofemoral joint;
·        CT cervical spine on 28 January 2021 showed mild disc bulges at C4/5 and at C5/6 a small to moderate posterocentral disc protrusion indenting the thecal sac;
·        MRI of the right knee on 31 May 2021 showed chondral fissuring of the patella facet laterally;
·        MRI of left knee on 31 May 2021 showed attenuation of the lateral meniscus with mild patella tilt;
·        MRI of left knee on 17 January 2020 showed a chondral flap over the medial femoral condyle;
·        X-ray of the left ankle on 17 January 2020 showed that there was a bony ossicle at the tip of the lateral malleolus, consistent with an avulsion injury, and
·        Ultrasound of the left ankle showed a previous ATFL rupture.

Whole person impairment

Medical Assessor Dixon assessed the claimant’s permanent impairment arising from the subject accident as follows:
(a)    the cervical spine where he has a neck strain injury with post traumatic stiffness with dysmetria and trapezial muscle spasm is from Table 73, Page 110, AMA IV, DRE II, 5% WPI;
(b)    the lumbar spine is from Table 72, Page 110, AMA IV, DRE I, 0% WPI;
(c)    the permanent impairment for the mild consequential stiffness of his left shoulder is from the same Pie Charts, 5% upper extremity impairment which equates to 3% WPI;
(d)    the right shoulder is 14% upper extremity impairment from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, which equates to 8% whole person impairment (WPI);
(e)    the claimant’s right knee where he has post traumatic retropatellar crepitus is from Table 62 page 83, 2% WPI;
(f)    the claimant’s left knee where he has traumatic chondromalacia patellae is from Table 62 page 83, 2% WPI;
(g)    permanent impairment for the left ankle is from Table 42, AMA IV page 78, 3% WPI;
(h)    the scarring is from the TEMSKI Table 6.18, Page 136, 1% WPI, and
(i)    there was no assessable impairment for his rib fractures;
This gives a total from the Combined Values Chart of 24% WPI.
The ranges of motion of the claimant’s shoulders were consistent with Dr Matthew Giblin’s assessment in his report dated 13 September 2022.
It appears the claimant's condition has reached MMI and there were no symptomatic pre-existing conditions.
His WPI assessment is permanent. The table can be found at Appendix D

Summary of relevant reports

Professor Warwick Bruce noted, in his letter to the insurer, QBE on 26 May 2021 that the claimant had retropatellar pain in the right knee with some swelling and audible crepitus and that it gave way on in October 2019, and he fell directly onto his left knee and felt a pop posteriorly. He had medial pain with swelling and some catching and locking and that the MRI scan of the knee was showing a radial tear of the lateral meniscus and an ultrasound showed thickening of the pre patella bursa, and a CT scan reported a lateral meniscal cyst.
Associate Professor (A/Prof) Michael Shatwell’s report dated 19 December 2022 noted the claimant continued to have problems with post-traumatic stress disorder but that the radiologist, Dr Linklater, had stated that the MRI of the left knee on 31 May 2021 showed mild institutional semi membranosis tendonosis with attenuation of the lateral meniscus which was similar to a previous MRI scan on 17 October 2019 and that the articular cartilage and lateral compartment was normal. There was no finding of any fracture of the lateral tibial plateau and there was mild lateral patella tilt. There is no mention of a radial tear of either meniscus.
The Panel noted that the A/Prof considered the right upper extremity and scarring were the only injuries that rated permanent impairment. He assessed all the other referred injuries as either unrelated to the accident or not yielding any impairment.
The A/Prof found mild stiffness of both knees and stiffness of the right subtalar joint but not of the left. He found similar ranges of motion for both shoulders as found today but deducted the left shoulder from the right shoulder.

Summary

This claimant was involved in a motorbike accident.
His diagnoses related to the subject accident are:
(a)    neck strain injury with post traumatic stiffness with shoulder brachalgia with trapezial muscle spasm with dysmetria without radiculopathy in the upper extremities with aggravation of cervical spondylosis which is ongoing with a C5/6 disc protrusion;
(b)    The brachalgia in the left shoulder is secondary to overuse due to his injured right shoulder;
(c)    post-traumatic stiffness of his right shoulder;
(d)    surgical scarring at his right clavicle and post-traumatic scarring at his right knee where he had a deep abrasion. The scarring is still visible and localised by the claimant, as is the clavicular scar and although he attempted to cover this with a tattoo. It is still readily apparent, and he is able to readily localise it, and it remains tender;
(e)    post-traumatic stiffness of his lumbar segment without radiculopathy without dysmetria but no erector spinae muscle spasm;
(f)    post-traumatic retropatellar crepitus of his right knee following direct blow;
(g)    pain in his left knee with mild stiffness on flexion as a secondary injury, and
(h)    post-traumatic stiffness of the left ankle and subtalar joint, where it had been reported he had a tear of the anterior talofibular (anterior third) of the lateral ligament of the left ankle.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent impairment (Fourth Edition) (AMS 4) (p 315) as follows:
• permanent impairment is unlikely to change substantially and by more than 3% in the next year with or without medical treatment and is consider permanent by definition, and
• Mr Miles’ symptoms have remained stable for the last 6-12 months. There is no specific treatment planned. The Panel believes that his impairment is stable for the assessment of permanent impairment.

DETERMINATIONS – PERMANENT IMPAIRMENT

The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.

Panel deliberations

The Panel met again on 24 October 2024.
The Panel decided to adopt Medical Assessor Dixon’s examination report with its conclusions and impairment assessment as evidence.
Noting the history of the original assessment, the Panel discussed whether Mr Miles presentation was sufficiently stable to ensure Medical Assessor Dixon was able to assess the permanent impairment without the barriers that Medical Assessor Kenna recorded.
Medical Assessor Dixon confirmed that he found the claimant was consistent and able to cooperate.
The Panel considered the claimant’s history of pre-accident psychological conditions noted in Medical Assessor Doron Samuell’s certificate dated 21 May 2024 and post-traumatic stress disorder arising from the accident and found it is reasonable to hypothesise that the pain behaviour A/Prof Shatwell noted, the oppositional stance he displayed in other examinations, and inconsistency could have been influenced by Mr Miles’ psychological condition rather than an attempt to mislead.[7]
[7] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 and Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
Mr Miles’ openness to questioning and examination with Medical Assessor Dixon compared with earlier examinations may be the result of the intensive inpatient care he has recently received.
The insurer relies on A/Prof Shatwell and Medical Assessor Kenna’s opinions that the lack of cervical and lumbar spine complaints when the claimant attended Nepean Hospital justify rejecting a nexus between the subject accident and the claimant’s cervical condition, and related shoulder conditions. The Panel also considered Dr Sam Perla’s opinion dated 16 June 2020, which largely aligns with A/Prof Shatwell’s opinion.
However, it was also reasonable to hypothesise in the context of an emergency admission and the claimant’s tenuous psychological state — which is referred to in various documents including the insurer’s internal review outcome dated 25 January 2023 — that the claimant’s behaviour was “difficult” and he was more focused on the clavicle injury rather than complaining about the cervical and lumbar spine. It is also possible the hospital staff were more focused on managing Mr Miles and that the note taking was effected.
It is relevant if clinical notes do not include early reports, but that alone does not determine whether there is a nexus between the subject accident and the claimant’s conditions.[8]
[8] Bugat v Fox [2014] NSWSC 888.
Medical Assessor Kenna and A/Prof Shatwell did not refer to the notes taken soon after the subject accident.
The Nepean Hospital outpatients clinic noted on 28 February 2019 that the claimant was complaining of “back pain” and that although scans had excluded a cervical fracture, they did not exclude ligamentous injury.
Orthopaedic surgeon Dr Manish Gupta’s note on 2 March 2019 referred to the claimant's neck pain as resulting from the accident.
Benchmark Rehabilitations report dated 10 April 2019 records the claimant having a limited range of motion in his neck. On 19 November 2019 Dr Reid recorded the claimant had neck pain which was attributable to the accident. These records demonstrated to the Panel that there was neck pain noted soon after the accident, without intervening causes, and on the balance of probabilities there was a causal connection with the accident.
Medical Assessor Dixon's examination confirms Dr Matthew Giblin's opinion that the accident aggravated underlying degenerative conditions in the cervical spine, resulting in permanent impairment.
The claimant's right shoulder resulted from a frank injury in the subject accident.
In respect of the claimant’s reporting consequential injuries, the Panel searched the insurer's submissions for references to the claimant's credit being impugned. There are references to excessive pain behaviour and psychological reports where the claimant alleges his estranged wife organised the subject accident, but otherwise there is no material included which calls on the Panel to reject the claimant's complaints because he has been untruthful or unreliable.
The claimant's left shoulder condition is consequential because the claimant's right shoulder was acutely impaired for some time and remains significantly impaired. This forced the claimant to rely on the left shoulder to perform tasks he normally did with his right upper limb. The claimant reports his symptoms only occurred some months after he had been relying on his left shoulder and arm to perform tasks, which he used to do with his right shoulder. It is the Panel's clinical judgement that consequential overuse injuries are medically possible.it accepts the claimant’s explanation and the nexus with the subject accident.
A/Prof Shatwell’s report dated 3 May 2023 criticised Dr Giblin’s support in his report of 7 March 2023 for the left shoulder injury being a consequential injury. He refers to Dr Giblin not itemising what tasks were affected. The Panel considered this and concluded it was easy to discern tasks that would become difficult if the dominant limb were impaired by the accident. Mr Miles having trouble cleaning himself when he used the toilet or carrying heavy objects with the left arm were immediately apparent.
The claimant complained of pain in his right knee immediately after the accident. That knee continues to be painful, and the claimant's obesity aggravates this body part. It is reasonable to find that the obesity is attributable to his inability to exercise due to physical impairment related to the accident and the loss of motivation due to his post-traumatic mental condition.
The Panel considered the claim Mr Miles fell and injured his left knee because he was favouring the right knee. A/Prof Shatwell and Medical Assessor Kenna rejected a nexus between the consequential left knee injury and the subject accident.
Mr Miles has consistently reported this was how the left knee injury happened, while being aware the insurer rejected the nexus. The Panel is of the opinion that the accident related right knee condition could destabilise Mr Miles’ balance and relies on Mr Miles’ description of what happened to justify finding the subject accident causing this consequential injury.
The lumbar spine also relies on Mr Miles self-reporting, apart from the outpatients’ note referred to above speaking of "back pain".
The Panel accepts the mechanism of the subject accident, plus the altered gait from the lower limb injuries could aggravate degenerative spinal conditions and make the lumbar spine symptomatic.
A/Prof Shatwell referred to the lack of neurological assessment regarding the possible peroneal muscular atrophy, which he considered was the primary cause of the claimant’s left ankle ligamentous injuries and knee instability. The Panel notes neurologist Dr Sameen Haque’s opinion given to Mr Miles’ GP in July 2021, which A/Prof Shatwell refers to did not lead to any follow up.
The Panel notes the possibility of that condition affecting Mr Miles’ outcomes and being vulnerable to trauma, but the Panel is satisfied on the balance of probabilities that the mechanism of the accident was sufficient to cause all of the alleged injuries, and it is probable that the referred conditions are related to the subject accident based on the evidence summarised above.

Causation and permanent impairment

The Review Panel found that the motor accident caused the following injuries:
·        ankle – left ankle anterior talofibular ligament tear;
·        cervical spine – aggravation of underlying degenerative changes;
·        clavicle – right clavicle fracture requiring surgery;
·        knee – right knee traumatic chondromalacia patellae;
·        knee – left knee chondral with meniscal injury;
·        lumbar spine – lower back injury;
·        shoulder – left shoulder pain developing due to increased reliance on left arm to protect right arm, and
·        scarring.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· lumbar spine- soft tissue injury.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
·        ankle – left ankle anterior talofibular ligament tear;
·        cervical spine – aggravation of underlying degenerative changes;
·        clavicle – right clavicle fracture requiring surgery;
·        knee – left knee chondral with meniscal injury;
·        knee – right knee traumatic chondromalacia patellae;
·        shoulder – left shoulder pain developing due to increased reliance on left arm to protect right arm, and
·        scarring.

Conclusion

The Review Panel has found the accident caused injuries with a percentage permanent impairment of 24%. The total whole person impairment is greater than 10%.
The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Kenna’s certificate dated 27 August 2023.
Accordingly, the Review Panel will revoke that certificate and issue a new Permanent Impairment Certificate.
Each Panel member has reviewed this decision and agreed with the findings.

APPENDICES

APPENDIX A

Statutory Provisions

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (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.

Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

'Causation means that a physical, chemical, or 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:

The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

This, therefore, involves a medical decision and a non-medical informed judgement.

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.”

Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

(a)     loss or asymmetry of reflexes;
(b)     positive sciatic nerve root tension signs;
(c)     muscle atrophy and/or decreased limb circumference;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Sections 5D and 5E of the Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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 CL Act (NSW), ss 5D 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.”

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 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 Commission.

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.

In respect of any injury or impairment before or after the subject which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.

In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the subject accident.

Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.

APPENDIX B

Original Assessor’s certificate dated 27 August 2023

When Medical Assessor Kenna examined Mr Miles, the claimant had just spent several days at John Hunter Hospital as an inpatient for a fall at home. The assessor noted Mr Miles was distressed and was about to go back into inpatient care for his mental health condition, which was to be his sixth admission. Mr Miles presented as dishevelled, incoherent, and using a borrowed walker for support and mobility.

There was a history of spontaneous falls and Mr Miles was enormously overweight. Medical Assessor Kenna estimated Mr Miles could weigh around 200 kg.

Medical Assessor Kenna noted Mr Miles post-traumatic stress disorder, his dependence on his family's care for activities of daily living. The claimant was anxious about coming to the city and had to pick and six Valium tablets before he arrived to manage that anxiety.

Mr Miles was mostly incoherent, but the assessor was able to take history and perform a rudimentary examination and assess permanent impairment within the limitations of his distressed state. He would not get out of his chair.

The Medical Assessor noted the claimant suffers from a constitutional condition affecting the aversion and dorsiflexion of both ankles. There has been previous surgery, and the claimant had injured both ankles at work in earlier accidents.

When the Medical Assessor examined Mr Miles, he found the cervical spine had full range of movement without referred pain into either upper limb.

The thoracic spine tested as normal.

The lumbar spine tested as normal too.

When Medical Assessor Kenna examined the upper extremity, he saw a healed 12 cm scar over the right clavicle, which was consistent with an operation after the accident. The claimant had tattooed the scarring as camouflage, because of the link with the accident.

Mr Miles complained his left shoulder was uncomfortable due to overusing it to protect his right shoulder, but there was no direct pathology or injury from the subject accident.

The right knee had been grazed, but there was no impairment.

Mr Miles complained his left knee had become uncomfortable after the accident because of an altered gait. The assessor found no impairment.

Applying the TEMSKI Scale to the claimant's scarring the Medical Assessor assigned only 1%, because it could not be visualised due to the tattoo.

Medical Assessor Kenna assessed 6% for the right shoulder.

APPENDIX C

Insurer’s submissions

The insurer relies on the reports of orthopaedic surgeon Associate Professor Michael Shatwell dated 19 December 2022 and [R11 to R13]. A/Prof Shatwell assessed 6% WPI, being 5% WPI for the right upper extremity and 1% WPI for scarring of the right shoulder. He described a 14cm scar that was tender to palpation.

The A/Prof did not consider there was any impairment arising from the rib fractures, nor the knee contusion. Further he opined that the neck and thoracolumbar spine were not injured in the accident and therefore there was no impairment arising from these body parts.

The A/Prof referring to the Nepean Hospital records described the claimant presenting at the hospital as a “difficult” patient to examine with tenderness experienced on palpation of all areas and pain on movement of the joints examined. Moreover, his prognosis was guarded in light of the claimant’s presentation and the A/Prof asserted he could not assess the claimant’s capacity to work without his full cooperation. He opined the claimant’s restrictions displayed during the exam were not a true reflection of his musculoskeletal capacity for movement.

Associate Professor Shatwell provided a supplementary report [R12] responding to Dr Giblin’s primary report dated 13 September 2022 addressing treatment recommendations and findings of causation in relation to various alleged injuries.

The A/Prof considered there was no evidence of any disruption of the stability at the right knee caused by the subject accident. Additionally, he did not consider the left knee to be a consequential injury as a result of the subject accident. He opined the claimant’s falls were due to pre-existing problems with “peroneal muscular atrophy” resulting in weakness of eversion and dorsiflexion of both ankles.

With respect to the knees, the A/Prof hypothesised there was an early degenerative change in the knee joints because of the claimant’s excessive body weight. The A/Prof’s reports and the insurer’s submissions did not address a nexus between the subject accident and the excessive weight gain.

The A/Prof commented in a second supplementary report [R13], on Dr Giblin’s second report.

The A/Prof did not consider the left shoulder was a consequential injury arising from the subject accident. He highlighted Dr Giblin did not explain the nature and the extent of activities the claimant was undertaking to cause the left shoulder injury, and that Dr Giblin did not give a diagnosis for the alleged injury.

The A/Prof relied on Nepean Hospital not noting any complaints about cervical or lumbar regions to establish there was no nexus between the accident and any disability or impairment. He did not consider whether the claimant’s emotional state which he refers to, and the acute clavicle fracture impacted on the hospital’s capacity to record all of the claimant’s accident related conditions.

The A/Prof considered there was no evidence of any ligamentous disruption or internal derangement affecting the cruciate or collateral ligaments or menisci at the time of the accident or subsequently. He did not consider the left knee was injured when the right knee gave way which was 8 months after the subject accident but referred to the constitutional instability.

Finally, Associate Professor Shatwell opined the symptoms of the left ankle be more likely due to mild peroneal muscular atrophy which is a condition unrelated to the subject accident. He did not address why the left ankle had only become symptomatic after the subject accident, in contrast with the right ankle being symptomatic shortly before the subject accident.

The insurer says the A/Prof has relied on the medical evidence in disputing that the various alleged secondary injuries are related to the subject accident.

The insurer relies on consistency between Dr Sam Perla, occupational physician, who prepared a primary report dated 16 June 2020 with a supplementary report and Associate Professor Shatwell’s findings to support its submissions.

APPENDIX D

Body Part or System	AMA Guides/ MAA Guidelines References (chapter/ page/table)	Stabilised (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to accident**
1.	Cervical spine – aggravation of underlying degenerative changes	Chapter 3, page 103 (AMA4)	Yes	5	0	5
2.	Lumbar spine – lower back injury	Chapter 3, page 102 (AMA4)	Yes	0	0	0
3.	Left shoulder – soft tissue injury	Pie Charts 38, 41 and 44, Pages 43-45, AMA IV	Yes	3	0	3
4.	Right shoulder – right clavicle fracture	Pie Charts 38, 41 and 44, Pages 43-45, AMA IV	Yes	8	0	8
5.	Right knee – traumatic chondromalacia patellae	Table 62 AMA IV page 83	Yes	2	0	2
6.	Left knee – traumatic chondromalacia patellae	Table 62 AMA IV page 83	Yes	2	0	2
7.	Left ankle – anterior talofibular ligament tear	Table 42, AMA IV page 78	Yes	3	0	3
8.	Scarring	TEMSKI table 6.18, page 136	Yes	1	0	1
Total	24

[2024] NSWPICMP 774

19 November 2024