Milosevic v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 45
•16 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Milosevic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 45 |
| CLAIMANT: | Aleksandar Milosevic |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Paul Curtin |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 16 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 29 October 2017 when he was a passenger in a vehicle which rear ended another vehicle; the medical dispute was whether the degree of impairment of the injury caused by the motor accident was greater than 10%; findings made about the nature of the accident as the speed of the impact was in dispute and the extent of the deceleration forces imposed on body parts from the motor accident can determine the severity of the injury; claimant’s account rejected because it was inconsistent with photographic evidence showing minimal damage, absence of airbag deployment, other witness statements and the opinion of Dr McIntosh; claimant suffered soft tissue injuries to the neck, back and shoulders; lumber spine assessed at diagnosis related estimate (DRE) II due to non-radicular symptoms; the examination by the Medical Assessor showed no radiculopathy, no radicular symptoms, no muscle guarding or spasm; there is bilateral restricted range of motion (3/4) on both sides which is not dysmetria; claimant assessed at DRE I for the cervical spine; finding made that the claimant only sustained a minor strain to the shoulders due to the minimal forces involved, absence of direct injury and absence of immediate complaint of shoulder movement; any shoulder injury would have resolved over a short period; ongoing shoulder problems likely due to heavy work activities causing the pathology as evidenced by the surveillance; observations made on the different legal tests for deduction due to pre-existing conditions under the workers compensation legislation and the motor accident legislation; Held – claimant assessed at 5% permanent impairment in respect of the lumbar spine; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Rapaport dated 29 July 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: · Lumbar spine; · Thoracic spine (resolved); · Cervical spine; and · Shoulders (resolved); |
REASONS
BACKGROUND
Mr Aleksandar Milosevic (the claimant) was injured in a motor accident on
29 October 2017. At that time the claimant was sitting in the rear seat between two other passengers. The claimant’s vehicle failed to stop when the vehicle in front stopped at traffic lights which had apparently changed from green to amber. After the initial collision, the driver of the claimant’s vehicle again accelerated colliding with the vehicle in front for a second time.[1][1] Claimant’s bundle, p 21-22.
The insurer insured the owner and driver of the vehicle for liability to pay Mr Milosevic any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the 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 MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Mr Milosevic claims that he suffered impairment of his cervical, thoracic and lumbar spine, right shoulder and left shoulder.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
PREVIOUS ASSESSMENTS
As is not uncommon and consistent with the provisions of the MAC Act, the one medical dispute has been through a series of medical assessments.
Medical Assessor Myers provided a certificate dated 22 January 2019.[5] The Medical Assessor found that the claimant injured his cervical, thoracic and lumbar spine and right and left shoulders in the motor accident. He held that there was no “medically sustainable reason” why the complaints should have continued more than 15 months after the motor accident and that the various injuries had resolved.
[5] Insurer’s bundle, p 153.
Medical Assessor Meakin issued a further certificate dated 12 February 2020.[6] The Medical Assessor stated:[7]
“I read with interest the report prepared by Dr Paul Myers on 22 January 2019 noting that he records a 0% Whole-person impairment relating to the current motor vehicle accident. It is Dr Myers' opinion that the changes on the scans of the right and left shoulder on 22 November 2017 are longstanding and I would agree with this, but the Applicant was asymptomatic. Dr Myers does not assess any impairment relating to the reduced range of motion that he noted at the time of his examination.”
[6] Claimant’s bundle, p 138.
[7] Claimant’s bundle, p 146.
Medical Assessor Meakin found that the condition to the thoracic spine had resolved. The conditions of the lumbar and cervical spine were assessed at DRE I and rated no assessable impairment. The Medical Assessor found 7% impairment of the right shoulder and 4% impairment of the left shoulder totalling 11% whole person impairment.
The insurer filed further evidence which was accepted as justifying a further assessment.[8] The medical dispute was then referred to Medical Assessor Rapaport who issued a medical assessment certificate dated 29 July 2022.[9]
[8] Claimant’s bundle, p 29.
[9] Claimant’s bundle, p 6.
The Medical Assessor determined that Mr Milosevic suffered soft tissue injuries to the cervical, thoracic and lumbar spine with no assessable impairment. The Medical Assessor found that the motor accident aggravated chronic degenerative changes in both shoulders and assessed impairment at 7% for each upper extremity. After accepting the shoulders were asymptomatic prior to the motor accident, the Medical Assessor made a 60% deduction based on “chronic degenerative shoulder disease with labral tears and tendinosis”.[10]
[10] Insurer’s bundle, p 16.
The Medical Assessor assessed overall impairment after the deduction at 6% permanent impairment.
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[11]
[11] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (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.[12]
[12] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new review provisions apply.The new review provisions provide[13] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[13] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[14]
[14] 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 matter solely based on the written application.[15]
[15] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[16]
[16] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles. The claimant subsequently filed two updated reports from Dr Guirgis.
The representatives of the parties agreed in a telephone conference that the insurer could file an updated report from Dr Keller addressing the late documents served by the claimant. They agreed that this cured any prejudice suffered by the insurer in relation to the claimant’s late material.
The insurer subsequently filed a further report by Dr Keller dated 28 November 2022. The doctor stated that the further information did not lead him to change the opinions expressed in the previous reports.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[17]. In Raina v CIC Allianz Insurance Ltd[18] 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.”[17] See s 3B(2) of the Civil Liability Act 2002.
[18] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident material
There was no pre-accident material. The clinical records of the general practitioner commence on the day after the motor accident.[19]
[19] Insurer’s bundle, p 171.
General practitioner
The clinical notes of the general practitioner on 30 October 2017 note pain in neck, upper and lower back and both shoulders following the motor accident.[20] The subsequent clinical notes refer to consistent complaints.
[20] Claimant’s bundle, p 109.
The medical certificate dated 8 November 2017 completed by Dr Kris Tomka, general practitioner, lists injuries to the neck, both shoulders, upper and lower back.[21]
[21] Claimant’s bundle, p 56.
Dr Tomka provided a medical report dated 21 January 2019.[22] The doctor stated that the claimant was in excellent health prior to the motor accident. His report of the examination was:
“On examination of his cervical spine there was obvious spasms of alt neck muscles which was extending interscapular and lumbar area. With his neck he could not bend and reach his chest with the tip of the chin. He could extend his neck into neutral position and looking to right and left was only halfway of normal.
His both shoulders were tender anterolaterally and movements were similarly affected. Flexion and extension were 40 degrees, adduction was 60 degrees and abduction 40 degrees. Internal and external rotation were minimal. Tone, power and reflexes were all normal on both upper limbs.
His thoracic spine was tender paracentrally and all movements were normal. With his lumbar spine he could bend down and reach his upper limbs with the tip of the fingers. He could not extend his back into neutral position, bending the right and left as well rotational movements of his lumbar spine were only 1/3 of normal.
Tone, power and reflexes were all normal on both lower limits. On the bases of history and clinical examination I concluded that Mr. Milosevic sustained following injuries:1. Neck injury
2. Both shoulders injury
3. Upper back
4. Lower back injury”
[22] Claimant’s bundle, p 90.
Dr Tomko attributed the injuries to the motor accident and noted there was no pre-existing condition.
Treating specialist reports
Dr Mathew Giblin provided a report dated 23 June 2021[23] stating that he initially saw the claimant on referral by his general practitioner on 23 September 2019, and on subsequent occasions. He was last seen on 23 June 2021.
[23] Claimant’s bundle, p 155.
Dr Giblin noted that the claimant still had bilateral shoulder pain, neck and low back pain and that the thoracic pain “has resolved to a significant extent”.[24] The doctor diagnosed soft tissue injury to the cervical spine, aggravation of underlying degenerative changes to the shoulders and soft tissue injury or annular tear to the lumbar spine. He assessed the neck and low back at DRE II, the left shoulder at 7% and the right shoulder at 7% resulting in a combined assessment of 22%.
[24] Claimant’s bundle, p 157.
In response to Dr McIntosh’s opinion, Dr Giblin stated:[25]
“In relation to the report of Dr McIntosh, this report is outside my field of expertise. I do notice however, in his report he indicates that his vehicle was hit from behind by a vehicle travelling at sixty-five kilometers an hour and after the first impact, he put his hands up onto the seat, this was before the second impact, and I would have thought that type of injury was significant enough to cause shoulder problems.
I agree with Dr McIntosh that an injury at sixty-five kilometers an hour hasn't caused any major structural damage identified on investigations, but I don't think it necessarily excludes soft tissue injuries that our investigations can't identify and those soft tissue injuries may well have caused his ongoing symptoms in his cervical and lumbar spine.”
[25] Claimant’s bundle, p 163.
Statement evidence
Mr Milosevic provided a statement dated 12 November 2019.[26] He stated that prior to the accident he was “fit and healthy” and did not experience pain in his neck, either shoulder, upper or lower back.
[26] Claimant’s bundle, p 8.
After describing the motor accident, the claimant stated that he did not feel any immediate pain but “did not feel fully comfortable”.[27] Mr Milosevic attended his general practitioner on the following day and was treated for injuries to both shoulders and the entire spine.
[27] Claimant’s bundle, p 23.
The claimant stated that he was off work for two or three weeks and then returned to his self-employed duties. He stated that because of his ongoing pain he tried to find himself suitable light duties but was not as efficient and restricted his jobs to those closer to home.
Statements from other persons in the motor accident
Ms Sarah Nguyen provided a statement dated 15 September 2020.[28] Ms Nguyen stated that it was a minor accident, and no one injured. Ms Nguyen said that she was in the vehicle stationary at lights when the other vehicle collided with the rear of her car. The impact was “not hard” but caused her vehicle to “jolt less than 1 m forward”.[29] She described the damage as “very minor”. No air bags were deployed and, as far as she was aware, no one was injured.
[28] Insurer’s bundle, p 144.
[29] Insurer’s bundle, p 145.
Regan Fraser provided a statement dated 15 September 2020[30] describing the impact in the motor accident as “small” and that she did not suffer injury.
[30] Insurer’s bundle, p 137.
Claim form
The claim form was completed by the claimant on 10 November 2017 and listed injuries to both shoulders, neck, upper and lower back as well as “anxiety and insomnia”.[31]
[31] Claimant’s bundle, p 53.
Radiology
An MRI scan of the cervical and lumbosacral spine dated 20 November 2017 showed neither spinal cord nor foraminal compromise.[32]
[32] Claimant’s bundle, p 69.
MRI scans of the right and left shoulder dated 27 November 2017[33] showed focal labral tears and tendinosis in both shoulders. The thoracic spine scan showed minimal bulging without compromise and no spinal cord abnormality.
[33] Claimant’s bundle, p 67.
Qualified opinions
Dr Medhat Guirgis, orthopaedic surgeon, was qualified by the claimant’s solicitors and provided a report dated 22 September 2018.[34] Dr Guirgis opined that the claimant suffered injuries to the various body parts listed in the claim form and assessed combined whole person impairment of 27%.
[34] Claimant’s bundle, p 57.
Dr Guirgis provided a further report dated 17 July 2019 following a further examination. The doctor stated that his opinion on impairment assessment “remained essentially unaltered” following the further examination.[35]
[35] Claimant’s bundle, p 83.
A report from Dr Guirgis to Professor Murrell dated 20 October 2022 noted the motor accident when the claimant suffered “significant injuries to his shoulders”. The doctor provided a detailed summary of the extensive shoulder pathology shown by the MRI scans.
In a further report from Dr Guirgis to Dr Tomko dated 22 October 2022 the doctor opined that the motor accident caused post-traumatic derangement of the cervical spine by way of musculoligamentous sprain and possible disc involvement, post traumatic symptoms in the right and left shoulder joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
Dr Guirgis also opined that the motor accident caused musculoligamentous sprain with possible intervertebral disc involvement of the thoracic spine and musculoligamentous sprain with L4/5 intervertebral disc involvement of the lumbar spine.
Dr Thomas Mastroianni, physician, provided a report dated 23 October 2019.[36] The doctor diagnosed whiplash associated disorder of the cervical spine, bilateral shoulder tendonitis and musculoligamentous strain of the lumbar spine caused by the motor accident. In response to Medical Assessor Myers’ observation, Dr Mastroianni stated:[37]
“You have raised a number of issues in your correspondence. You refer to
Dr Myer's report on page 7 where it states, ‘his shoulder range of movements as demonstrated to me are not medically consistent with the known pathology or the mechanisms of injury’. You have asked to please provide your opinion as to whether the motor vehicle accident was causative of findings on imaging and/or the loss of function.I disagree with Dr Myers' opinion. The restricted range of movements are consistent with the known pathology i.e. tendonitis and bursitis. As outlined in the report the mechanism of injury is consistent with the accident, in particular when there was a second hit, he had his hands resting on the front seat which would have caused trauma to the shoulders.”
[36] Claimant’s bundle, p 100.
[37] Claimant’s bundle, p 105.
Dr Mastroianni agreed that the imaging did not show major changes which were age related, but that the motor accident had aggravated the pre-existing conditions. The doctor assessed 7% impairment for the right shoulder, 4% for the left shoulder and 5% for the cervical spine. The thoracic and lumbar spine were assessed at DRE I and assessed at 0%.
Dr Andrew Keller, physician, was qualified by the insurer and has provided a series of reports.
In a report dated 10 June 2020[38] Dr Keller stated:
“It is plausible that Mr Milosevic suffered soft tissue strains to his spine and shoulders as a result of the accident described. It appears that the force involved in the crash was at the lower end of the spectrum as airbags were not deployed, the car was drivable immediately afterwards and was immediately repaired. Given this information it is unlikely that he would have suffered long term injuries affecting the shoulders, neck or lower back.”
[38] Insurer’s bundle, p 39.
Dr Keller opined that the effects from the motor accident had “long since resolved” and within three months of the accident.
Dr Keller reviewed further materials and provided a further report dated 29 July 2021.[39] The doctor’s opinion remained unchanged having reviewed the further materials.
[39] Insurer’s bundle, p 165.
Dr Andrew McIntosh provided a report dated 7 August 2020.[40] He described the suggestion that the claimant’s vehicle was travelling at 60 kmph as “implausible” given the absence of damage in the photographs and the absence of air bag deployment.
Dr McIntosh estimated the change in velocity as less than 8 kmph.[40] Insurer’s bundle, p 56.
Dr McIntosh opined that there was a very low likelihood of injury in low-speed frontal collision although the pre-existing injury is a risk factor in injury likelihood.
Dr McIntosh opined that there was no mechanism of injury to either shoulder in the accident and the seatbelt forces would have been of low magnitude and unlikely to cause injury. He otherwise opined that a second collision is very unlikely and would have been “trivial and unlikely to cause injury”.
The photographs of the vehicles involved in the motor accident show damage consistent with a rear end collision.[41]
[41] Insurer’s bundle, pp 148-150.
Video surveillance
The Panel confirms that it has viewed the surveillance.[42] The contents are referenced later in these Reasons.
[42] The surveillance report commences at Insurer’s bundle, p 97.
SUBMISSIONS
Insurer’s submissions dated 22 December 2020[43]
[43] Insurer’s bundle, p 160.
These submissions were filed seeking a review of the assessment provided by Medical Assessor Meakin. The further materials relevantly included witness statements and the report of Dr McIntosh.
The insurer noted that Dr McIntosh considered the accident to be minor and that the mechanism of the accident was not consistent with claimant suffering the alleged injuries.
The insurer also submitted that the surveillance footage showed range of movement inconsistent with the findings of Medical Assessor Meakin.
Insurer’s submissions dated 13 September 2022[44]
[44] Insurer’s bundle, p 2.
These submissions were filed opposing a review of the certificate issued by Medical Assessor Rapaport.
The insurer submitted that there were chronic pre-existing degenerative changes in both shoulders evidenced by the MRI scans dated 12 April 2018. A deduction of 60% was “appropriate” given “the chronic degenerative shoulder disease with labral tears and tendinosis that pre-dated the motor vehicle accident”.
The insurer submitted incorrectly that prior findings of 0% impairment showed that the injury to those body parts, such as the thoracic and lumbar spine, had resolved.
Claimant’s submissions dated 18 January 2021[45]
[45] Insurer’s bundle, p xxx.
These submissions were filed by the claimant following the insurer’s application for a review of the certificate issued by Medical Assessor Meakin.
The submissions address the insurer’s further evidence which was relied upon to justify a further review. The claimant described the surveillance as not “remarkable” and noted that Dr McIntosh opined that the injury was “unlikely” not impossible. The further opinion of Dr Keller that there were no long-term consequences from the injuries was “perverse”.
The claimant otherwise submitted that the effects of the motor accident on other persons present “do not advance” the insurer’s claim.
Claimant’s submissions dated 18 August 2022[46]
[46] Claimant’s bundle, p 1.
These submissions were filed seeking a review of the Medical Assessment.
The claimant submitted that there was “no basis” to assert that the injuries to the cervical, thoracic or lumbar spine had resolved and that the assessments were not undertaken in accordance with the Guidelines.
The claimant submitted that there was no proper basis to make a substantial deduction of 60% for a pre-existing condition. Reference was made to the finding by the Medical Assessor that the shoulder conditions were asymptomatic. According to cl 1.31 of the Guidelines, a deduction was applicable if there was “pre-existing symptomatic permanent impairment”.
RE-EXAMINATION
Mr Milosevic was examined by Medical Assessor Assem. The examination report is as follows:
“Mr Milosevic attended the rooms of Assessor Assem at 4 pm on 3 February 2023 and was interviewed and examined by Assessor Assem. Ms Dusica Jovanovic-Palic, official Serbian speaking interpreter (NAATI # CPN2GH48J) was present during the interview.
Pre-Accident Medical History
Mr Milosevic had a reasonable command of the English language and did not require any significant assistant from the interpreter. He confirmed that the history obtained by Assessor Rapaport was correct. By way of summary, Mr Milosevic is a 42-year-old right-hand man who is self-employed as a painter at the time the subject injury. He stated that he was working long hours and denied any previous musculoskeletal accidents, injuries or complaints. After the motor vehicle accident, he was off work for two weeks before returning to work on suitable duties at variable hours depending on the intensity of his symptoms. He usually works with one or two colleagues. In around May 2019, the business was taken over by one of his employees. He continued working at reduced hours in a supervisory role providing quotes.
History of Motor Vehicle Accident
On 29 October 2017, Mr. Milosevic was a rear seat passenger in a Mazda3 sedan travelling along the Hume Highway near Bass Hill when the car in front of them braked to stop at the intersection when the traffic lights turned amber. The driver failed to stop in time and collided into the rear of the vehicle.
Mr Milosevic was wearing a seatbelt restraint. The airbag facility was not deployed. He states that prior to impact, he put his hands forwards to protect his wife. On the second impact, he again put his hands forwards. He did not experience any discomfort immediately after the accident. The police and ambulance did not attend the scene. After exchanging details, they were able to continue their journey.
I brought to his attention that photographs of the damaged vehicle show very minor damage that is barely visible. It appears that the bumper bar was scratched. In response, he stated that the damage would not be visible as the bumper bar is made of plastic. I also brought to his attention, and the statement Ms Reagan Fraser dated 15 September 2020 (driver of the other vehicle).
Ms Fraser considered that the impact was small, and the damage was minor. In response, Mr Milosevic stated that he was not aware of her statement.History of symptoms and treatment following the motor accident
Later that night, experienced some neck discomfort. The following day, he presented to Dr Tomka complaining of pain involving his neck shoulders and back. He was prescribed analgesia and received physiotherapy treatment. He was referred to Dr Giblin, orthopaedic surgeon, who arranged a bone scan on
11 February 2020 that was unremarkable. He was given cortisone injections into both shoulders that provided temporary relief.He has denied any significant improvement in his condition. He complains of intermittent neck discomfort and stiffness. He has constant pain in both shoulders, worse on the right that he rated as 7-8/10 on the pain scale. There were no radicular symptoms reported in his upper limbs.
He also reported constant low back discomfort and stiffness that he rated as 6-7/10 on the pain scale. There are pins and needles at the posterolateral aspect of his left thigh. He states that he takes Mersyndol and Nurofen almost every day.
He estimates that he is able to sit, stand or walk for 30 to 60 min. He can easily lift up to 10 kg and sometimes 15 kg. He has modified his work activities and usually avoids carrying any heavy drums of paint for long periods. He has difficulty with overhead activities.
He was aware of video surveillance taken from 20 July 2020 until 22 July 2020 (inclusive). At 8:16 am, he was observed lifting boards onto the roof of his utility vehicle. In response, he stated that he was only lifting one board of gyprock whereas he could previously lift 50 boards of gyprock without any problems. At 8:17 am, he was observed stretching and reaching above his head to place a ladder on top of his utility vehicle. He did not appear to have any discomfort or limitations. In response, he stated that he has never said that he was totally incapacitated. At this point, the interpreter intervened and stated that the video was not conclusive. She was advised that her comments were inappropriate, and she should not interfere with the assessment.
The remainder of the video surveillance showed him engaging in his usual activities as a painter and performing various tasks including bending forwards, squatting, kneeling, reaching, repetitive upper limb activities and lifting large panels of gyprock without any apparent discomfort or restrictions.
Examination
General presentation
Mr Milosevic appeared well and in no apparent distress. He was cooperative during the examination. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury. His height was 185 cm and he weighed 97 kgs.
Cervical spine (cervicothoracic)
He had a normal cervical lordosis. There were no scars or deformities. There was mild tenderness on palpation but no muscle guarding or spasm. He demonstrated a symmetrical restriction in cervical flexion, extension, flexion and rotation to 3/4 of normal range. There was no asymmetry of movement or spinal dysmetria.
Neurological examination of his upper extremities was normal with normal power, tone, sensation and reflexes.
The examination of the thoracic spine was normal with no symptoms present. He demonstrated a normal range of motion. There was no muscle guarding or spasm.
Lumbar spine (lumbosacral)
There was no muscle guarding or spasm present. Lumbar movements were normal in flexion, extension, lateral flexion and range. He reported sensory loss at the posterolateral aspect of his left thigh. As similar symptoms were documented by other medical examiners, I considered that he had non-verifiable radicular complaints. There was no muscle atrophy and neural tension signs were negative.
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
Normal
Normal
L4
5/5
Normal
Normal
L5
5/5
Normal
Normal
S1
5/5
Normal
Normal
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Upper extremities
He reported tenderness at the lateral aspect of both shoulders. Tests for impingement were mildly positive. Active range of motion was restricted as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
120°
Extension
40°
40°
Adduction
30°
30°
Abduction
110°
110°
Internal Rotation
50°
50°
External Rotation
60°
60°
The clinical examination was concluded at 4:46 pm.
Comments on consistency
·His alleged chronic widespread injuries and impairments claimed are inconsistent with the biomechanical forces involved in the accident as judged by the photographs of the damaged vehicle and statement of Ms Fraser.
·There was no evidence of traumatic pathology that could be causally related to the motor vehicle accident.
·His complaints and limitations are inconsistent with his observed physical capabilities on video surveillance.
·The inconsistencies were brought to his attention and response noted.
·The above inconsistencies were significant and relevant to the assessment.”
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 Ltd v Keen[47] and Insurance Australia Ltd v Marsh.[48]
[47] [2021] NSWCA 287 at [40], [41] and [45].
[48] [2022] NSWCA 31 at [11], [21], [64].
We adopt the examination findings of Medical Assessor Assem supplemented by the following further reasons.
Nature of the motor accident
We do not accept the claimant’s account provided to various doctors that the collision occurred when the vehicle he was in was travelling at 60 kmph. This account is inconsistent with opinion provided by Dr McIntosh which was based on the photographic evidence showing minimal damage, the vehicle was driveable and the absence of airbag deployment. That opinion is also consistent with the statements provided by Ms Nguyen and Ms Fraser of the extent of the impact in the motor accident.
To the extent that it is relevant because the extent of the deceleration forces imposed on body parts from the motor accident can determine the severity of injury, we find that the motor accident occurred in circumstances where the claimant’s vehicle was slowing markedly prior to the accident and the extent of the impact was minor. Any secondary impact would have been extremely minor.
Contemporaneous complaints
The contemporaneous clinical notes indicate that Mr Milosevic consulted his general practitioner on the day after the motor accident and complained of pain in the cervical, thoracic and lumbar spine and both shoulders. The consistent history is that
Mr Milosevic was healthy and did not suffer prior symptoms.Dr McIntosh opined that injury probably did not occur given his findings on the severity of the impact. Whilst the opinion is provided some weight, it does not attempt to explain the complaint of symptoms to the general practitioner on the day after the motor accident.
We note Mr Milosevic’s history to Medical Assessor Assem that he did not notice symptoms immediately following the motor accident and that there was a delayed onset of symptoms later that day. That history is consistent with the development of soft tissue injury rather than injury by way of traumatic pathology.
Thoracic spine injury
The examination by Medical Assessor Assem of the thoracic spine was normal. Whilst Mr Milosevic probably sustained a soft tissue injury to the thoracic spine from the motor accident, the likely effects of injury to the thoracic spine probably resolved within a short period.
There is no assessable permanent impairment of the thoracic spine.
Lumbar spine injury
There were complaints of lumbar spine symptoms immediately following the motor accident indicative of injury. The claimant has consistently complained of lumbar spine symptoms although there have been other assessments that did not show the extent of the symptomatology found by Medical Assessor Assem.
With some reservations, noting that the motor accident need only be a material contribution to the impairment, the Panel accepts that the non-verifiable radicular complaints in the lumbar spine were caused by the motor accident. Based on the assessment of Medical Assessor Assem, the claimant is assessed at DRE II.
Cervical spine injury
We accept that the motor accident caused a soft tissue injury to the cervical spine. This conclusion is consistent with the MRI scan of the cervical spine dated 20 November 2017 which did not show spinal cord nor foraminal compromise.
The examination by the Medical Assessor showed no radiculopathy, no radicular symptoms, no muscle guarding or spasm.
There is bilateral restricted range of motion (3/4) on both sides which is not dysmetria.
Accordingly, the claimant is assessed at DRE I for the cervical spine which is 0%.
Shoulder injuries
We refer to our previous findings concerning the nature of the motor accident. There was clearly no direct injury to either shoulder which indicates that the force imposed on the shoulders was relatively minor. This is consistent with the claimant’s account that there was no immediate complaint of shoulder symptoms.
Based on the medical expertise within the Panel, we do not accept that there was anything other than a minor soft tissue injury to the shoulders caused by the motor accident. We do not accept that the minor nature of the motor accident would have aggravated any pre-existing pathological changes in the shoulders because of the minimal forces imposed from the motor accident.
In these circumstances, we do not accept that the nature of the motor accident caused anything other than minor soft tissue strain to the shoulders which would have resolved over a short period.
The video surveillance otherwise shows the claimant lifting a ladder above shoulder height and carrying plasterboard. That Mr Milosevic indicated that he previously lifted greater weights. However, this explanation does not detract from the surveillance which showed greater than 150 degrees of flexion. The work activities previously undertaken by Mr Milosevic including lifting large amounts of plasterboard are the likely explanation for both the pathological changes in the shoulders and a degree of shoulder restriction.
In these circumstances the Panel finds that there were soft tissue injuries to the shoulders which resolved within a short period of time. The current restrictions in movement are due to the variety of overhead work tasks evidenced by the surveillance.
There is no impairment of the shoulders caused by the motor accident.
Pre-existing or subsequent injuries causing impairment
Whilst it is unnecessary to decide given our findings with respect to the shoulders, we add some brief observations on the deduction made by the previous Medical Assessor and the incorrect submissions made by the insurer.
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. However, there is no basis to make any deduction for any pre-existing condition[49] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” in the shoulders.
[49] Clauses 1.31 of the Guidelines.
We note that that the Medical Assessor incorrectly made a deduction for the pre-existing degenerative changes based on “s 323”. This is obviously a reference to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 which provides the statutory basis for a deduction for a pre-existing condition or abnormality under the workers compensation scheme.
There is no requirement under the workers compensation legislation that there be pre-existing impairment or that the condition be asymptomatic. Indeed, the authorities show the opposite.[50] The insurer’s submissions that a 60% deduction was appropriate given the obvious pre-existing pathology is legally incorrect and not in accordance with the test in cl 1.31 of the Guidelines.
[50] D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]).
However, given our findings in relation to the recovery of any injury to the shoulders, the issue of deduction does not arise.
Permanent impairment
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
Mr Milosevic has a 5% permanent impairment as a result of the injuries caused by the motor accident.
CONCLUSION
For these reasons we conclude that the assessment dated 29 July 2022 is revoked because we have calculated different assessments despite concluding that the overall impairment is not greater than 10%. The new certificate is attached at the commencement of these Reasons.
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