Morgan v QBE Insurance (Australia) Limited
[2023] NSWPICMP 653
•6 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Morgan v QBE Insurance (Australia) Limited [2023] NSWPICMP 653 |
| CLAIMANT: | Catherine Morgan |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 6 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Cameron who determined that the claimant did not have a WPI of greater than 10%, that is, 6% WPI; review sought by claimant under section 7.26; claimant suffered a closed head injury and injuries to her neck, left shoulder and left elbow in the subject motor accident; Held – Panel revokes the certificate of MA Cameron dated 28 March 2023; Panel certifies that the claimant sustained a mild complicated traumatic brain injury, a soft tissue injury to the cervical spine, a soft tissue injury to the left shoulder and a soft tissue injury and laceration to the left elbow caused by the motor accident on 12 September 2020 that give rise to a WPI that is not greater than 10%, that is, 9%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Cameron dated 28 March 2023. 2. Certifies that the claimant sustained a mild complicated traumatic brain injury, a soft tissue injury to the cervical spine, a soft tissue injury to the left shoulder and a soft tissue injury and laceration to the left elbow caused by the motor accident on 12 September 2020 that give rise to a whole person impairment that is not greater than 10%, that is, 9%. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mrs Morgan, is a 76-year old woman who was walking through the basement carpark of a shopping centre, when she was struck by a Toyota RAV4 as it reversed out of a parking space causing her to fall to the ground on 12 September 2020 (the motor accident).
On 2 October 2020, Mrs Morgan made a claim for personal injury benefits on QBE Insurance (Australia) Limited (the insurer). She claimed that she suffered injuries to her head, neck, left shoulder and left elbow as a result of the motor accident.
Mrs Morgan’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Mrs Morgan’s whole person impairment (WPI) has arisen in connection with her claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Ian Cameron for assessment.
The medical dispute was assessed by Medical Assessor Cameron, who issued a certificate dated 28 March 2023 wherein he certified that the injuries to Mrs Morgan’s head, cervical spine, left shoulder and left elbow did not have a WPI of greater than 10%, that is, 5% (the Medical Assessment).
REVIEW PROCEDURE
On 26 April 2023, Mrs Morgan sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
On 23 May 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
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: Rule 128 of the PIC Rules.
On 20 June 2023, the parties were directed to upload to the portal an indexed and paginated bundle of all the documents relied on in the Review. Mrs Morgan uploaded her bundle of documents on 17 July 2023 and the insurer uploaded its bundle of documents on 11 September 2023.
On 18 September 2023, the Panel informed the parties that it considered a re-examination of Mrs Morgan was required. Arrangements were made for Mrs Morgan to be re-examined by Medical Assessor Sophia Lahz on behalf of the Panel on 17 October 2023. Mrs Morgan’s lawyers were directed to provide the Panel with any final submissions by 3 October 2023 and the insurer was directed to provide the Panel with any final submissions by 10 October 2023.
On 18 September 2023, the parties’ lawyers were also directed by the Panel to consider and advise by 25 September 2023 whether they accepted Medical Assessor Cameron’s assessment that the mild complicated traumatic brain injury, the left shoulder soft tissue injury and the left elbow soft tissue injury and laceration caused by the motor accident each attracted a 0% WPI.
On 21 September 2023, Mrs Morgan’s lawyers responded on the Commission’s portal to the above direction as follows:
“The claimant does not agree with Assessor Cameron's assessment of the mild complicated traumatic brain injury, the left shoulder soft tissue injury and the left elbow soft tissue injury and laceration and asks that the Panel conduct an assessment of those injuries afresh, in accordance with s7.26(6).”
Accordingly, the Review proceeded by way of an assessment of all matters with which the Medical Assessment was concerned.
LEGISLATIVE FRAMEWORK
General provisions
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mrs Morgan’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and for non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines). Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017.
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 in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“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:
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.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the motor accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined Mrs Morgan on 28 March 2023 and issued a certificate under s 7.23(1) of the MAI Act on the same date.
Medical Assessor Cameron was asked to assess the minor (now threshold) injury dispute in respect of the following injuries:
(a) brain - left subdural haematoma now resolved with occasional headaches in this area following head injury without loss of consciousness and without amnesia;
(b) cervical spine - neck strain injury with post traumatic stiffness with persisting torticollis on the left with trapezial muscle spasm and sternomastoid pain with dysmetria;
(c) left shoulder - post traumatic stiffness of the left shoulder with trapezial muscle and deltoid pain;
(d) left elbow - left elbow laceration, now healed, and
(e) head - closed head injury.
Medical Assessor Cameron took a pre-accident history from Mrs Morgan, who reported that, at the age of 23 years, she suffered a severe traumatic brain injury in a motor accident, the result of which was a persisting visual field impairment. She had carcinoma of the breast in 2003 with a recurrence in 2018. She had hereditary lymphoedema of the lower extremities. She had a fall in April 2020 at home and sustained a fractured pelvis, fractured ribs and a fractured sacrum. Mrs Morgan retired from the paid workforce in her early sixties.
In respect of the motor accident, Medical Assessor Cameron took a history that Mrs Morgan was a pedestrian in the shopping centre car park when a car backed into her and knocked her to the ground. She hit her head. There was no definite loss of consciousness. Ambulance and police attended the scene. She was taken to St George Hospital and was admitted for one day. Imaging demonstrated a left hemisphere subdural haematoma which was treated conservatively. There was also neck pain.
In respect of symptoms and treatment following the motor accident, Medical Assessor Cameron was provided with a history that Mrs Morgan gradually improved but that there had been persistent neck pain. Physiotherapy had assisted in this regard.
In respect of current symptoms, Mrs Morgan complained of neck pain and limited movement of her neck. The pain was more on the left side and symptomatic when involved with house work and when concentrating to use her mobile telephone or laptop computer. Mrs Morgan said that she was fearful in shopping centre car parks. She underwent occasional physiotherapy funded by Medicare and followed a home program. There was no residual scarring to her face or scalp.
Mrs Morgan informed Medical Assessor Cameron that she takes paracetamol as required and that she also takes Letrozole for her breast cancer.
On examination, Medical Assessor Cameron observed that Mrs Morgan was right-handed, 166cm in height and weighed about 76kg. She was cooperative and her mood was within normal limits. She had no difficulties with recent memory and scored 29/30 on a mini mental state examination.
On examination of Mrs Morgan’s cervical spine, Medical Assessor Cameron observed that her neck was held in an asymmetric position with, effectively, no left rotation and moderately restricted movement in other areas.
On examination of Mrs Morgan’s upper extremities, Medical Assessor Cameron observed that there was a full range of movement at the shoulders. There was a full range of motion at the other upper extremity joints. Specifically, there was a full range of movement of the left elbow. No scarring was present. Mrs Morgan had lymphoedema of the right upper extremity and was wearing a compression sleeve. No neurological abnormalities in the upper extremities were detected.
On examination of Mrs Morgan’s head, no facial or scalp scarring was noted. Mrs Morgan had a right homonymous hemianopia, more apparent involving the right eye.
Medical Assessor Cameron was of the view that Mrs Morgan was consistent in her presentation.
Medical Assessor Cameron reviewed and summarised the relevant documentation made available to him. He noted that there were no imaging studies to review.
In respect of causation, Medical Assessor Cameron concluded that the circumstances of the motor accident were clearly described and that the injuries sustained by Mrs Morgan were consistent with the mechanism of injury. The injuries were apparent and were treated soon after the motor accident.
In respect of diagnosis, Medical Assessor Cameron opined that Mrs Morgan had sustained a mild complicated traumatic brain injury with documented subdural haemorrhage. She had also sustained a soft tissue injury to the cervical spine and she may have sustained other injuries.
Medical Assessor Cameron concluded that the following injuries were caused by the motor accident:
(a) head – mild complicated traumatic brain injury;
(b) cervical spine – soft tissue injury;
(c) left shoulder – soft tissue injury, and
(d) left elbow – soft tissue injury and laceration.
Medical Assessor Cameron noted that, in the Commission’s referral, the head injury had been listed twice.
In respect of Mrs Morgan’s head injury, Medical Assessor Cameron noted that she had a significant impact to the head and that there were brain imaging abnormalities consistent with brain trauma. The criteria set out in cl 1.164 of the Guidelines were satisfied and the head injury was assessable as causing permanent impairment.
Medical Assessor Cameron assessed mental status impairment related to the traumatic brain injury with reference to the clinical dementia rating scale (CDR) in accordance with cl 1.167 of the Guidelines and assessed a CDR of 0. He also assessed emotional and behavioural functioning based on Mrs Morgan’s current status. He opined that there was no limitation of daily social and interpersonal functioning and that Mrs Morgan was functioning well in her usual daily routine. Accordingly, he assessed the impairment due to the brain injury at 0% WPI.
In respect of Mrs Morgan’s cervical spine injury, Medical Assessor Cameron assessed it with reference to the diagnosis related estimate (DRE). He assessed that Mrs Morgan had asymmetric loss of range of movement and concluded that a DRE cervicothoracic category II impairment rating (5% WPI) was the appropriate evaluation. He opined that there were no current present symptoms or signs that justified an assessment of a DRE cervicothoracic category III impairment.
In respect of Mrs Morgan’s left shoulder injury, Medical Assessor Cameron opined that the only applicable method of evaluation was the abnormal range of motion method and he assessed 0% WPI.
In respect of Mrs Morgan’s left elbow injury, Medical Assessor Cameron opined that the only applicable method of evaluation was the abnormal range of motion method and he assessed 0% WPI. He noted that the left elbow laceration had resolved.
Accordingly, Medical Assessor Cameron assessed the degree of permanent impairment caused by the motor accident as 5% WPI.
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) Mrs Morgan’s indexed and paginated bundle of documents lodged on the Commission’s portal on 17 July 2023 (Mrs Morgan’s documents), and
(b) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 11 September 2023 (insurer’s documents).
REVIEW OF THE EVIDENCE
Application for personal injury benefits
On 12 September 2020, Mrs Morgan completed an application for personal injury benefits in respect of the motor accident (the application form).[1]
[1] Mrs Morgan’s documents at pages 11-15.
The application form set out the basic particulars of the motor accident and Mrs Morgan described the accident as follows:
“Returning after shopping at Aldi to the basement car park, I was knocked sideways to concrete floor of car park by a vehicle suddenly reversing out, with brief reverse behind me which I did not see or hear. My husband had walked ahead to car parked further along.”[2]
[2] Mrs Morgan's documents at page 13.
In the application form, Mrs Morgan described the injuries she received in the motor accident as follows:
“Large, sore lump on the left side of head, revealed by CTs as some bleeding around brain. Dark black ‘raccoon eye’ (left eye) from head trauma. Large raised bruise on upper left leg. Small cut to left elbow.”[3]
[3] Mrs Morgan's documents at page 13.
NSW Police Force
In evidence, there is the NSW Police Force letter dated 14 October 2020, which had attached to it the event report E 77902316 (the event report) produced on 13 October 2020.[4]
[4] Insurer's documents at pages 35-39.
The event report described the incident type as a major traffic crash.
The event report provided crash summary details that included that at about 3.55pm on 12 October 2020, the driver of a Toyota RAV4 was slowly reversing out of a parking space in the Aldi undercover parking area when the rear of that vehicle collided with Mrs Morgan, who was walking with her husband and a trolley to her car nearby. Mrs Morgan was knocked over and fell to the ground sustaining a slight scrape and bruising.
QBE accident report form
In evidence, there is a QBE accident report form completed by the driver of the RAV4 in the motor accident.[5]
[5] Insurer's documents at pages 45-48.
The accident report form set out the basic particulars of the motor accident.
In the accident report form, the driver of the RAV4 described the motor accident as follows:
“I was reversing out of a car space in Aldi underground car park. Previous activity must have obscured Mrs Catherine Morgan from my sight until she was in the blind spot. As I reversed I must have hit her. I heard a cry and immediately jumped out to assist. I found Catherine on the ground and helped her to a seated position. She complained of a bump to her head and elbow.”[6]
[6] Insurer's documents at page 46.
Treating medical records and reports
The NSW ambulance electronic medical record reported that, on 12 September 2020, Mrs Morgan was conveyed to hospital by ambulance as a result of the motor accident. The electronic medical record reported a history of the motor accident that was consistent with the evidence. It was reported by Mrs Morgan and bystanders that Mrs Morgan had fallen back straight on to the left side onto her head. On examination, the paramedics observed that Mrs Morgan was alert and had a Glasgow Coma Scale (GCS) of 14. She did not report loss of consciousness, cervical spine tenderness, dizziness or headache. A large haematoma in the left parietal region was evident. Mrs Morgan stated that she felt confused and slightly dazed. She denied chest, abdominal, pelvic or hip pain. There were no injuries to her extremities. The paramedics observed bruising and a small graze on her left elbow. Mrs Morgan denied double vision, ringing in the ears, nausea, vomiting, feeling drowsy or lethargic. She reported that she had sustained a head injury in a motor accident 50 years ago. On admission to the emergency department of St George Hospital, her GCS had improved to 15.[7]
[7] Insurer’s documents at pages 40-44.
In evidence, there are the St George Hospital clinical records and discharge referrals pertaining to Mrs Morgan dated 12 September 2020, 13 September 2020 and
18 September 2020.[8]
[8] Insurer's documents at pages 55-117 and Mrs Morgan's documents at pages 16-20.
The St George Hospital clinical records noted that Mrs Morgan presented at the emergency department of the hospital in the late afternoon of 12 September 2020, was admitted to a ward later that night and was discharged on 13 September 2020.
On 12 September 2020, the St George Hospital progress notes recorded that Mrs Morgan had been a pedestrian when hit by a reversing car at about 10kmph on the right side and landed on her left side. Mrs Morgan’s injuries were recorded as left-sided parietal haematoma, left elbow laceration, mild pain on the left hip and mild neck tenderness on route. GCS was 15. She was amnesic to the event. A soft collar was applied as a spinal precaution.
On 12 September 2020, Mrs Morgan underwent a CT scan of the brain and cervical spine at St George Hospital. In respect of the cervical spine, the CT scan demonstrated no evidence of acute cervical injury and noted multilevel degenerative changes. In respect of the brain, the CT scan demonstrated a small subdural haematoma overlying the left cerebral convexity, associated with adjacent subarachnoid haemorrhage. A large subgaleal haematoma overlying the left parietal bone was also demonstrated. There was an incidental finding of a partially calcified meningioma in the right cerebellopontine angle.[9]
[9] Insurer's documents at page 81.
The St George Hospital progress notes recorded that Mrs Morgan’s CT scan of the brain was discussed with Dr Martin Scholsem. The notes recorded a mild head injury with a small left hemispheric subdural haematoma without mass effect and noted that there had been a previous head injury in the 1970s requiring burr holes and resulting in ophthalmoplegia and head tilt.
On 16 September 2020, Mrs Morgan consulted Dr Shannon Previte, general practitioner, of the Earlwood Medical Centre. She provided a history of the motor accident and complained of left hip bruising and slight pain and that since leaving hospital she had developed a left black eye. On examination, Dr Previte observed that she was mobilising independently, in good spirits and had bruising below the left eye. Neck range of motion was normal and there was no midline or paraspinal tenderness. On the right crown there was a 6cm scalp haematoma.[10]
[10] Mrs Morgan's documents at pages 101-102.
On 17 September 2020, Mrs Morgan had a telephone conversation with Dr Huiling Li, general practitioner, also of the Earlwood Medical Centre. She complained of a haematoma on the left side of her crown scalp and a persistent throbbing headache. Dr Li recommended that she return to the hospital emergency department for a further check-up.
On 18 September 2020, Mrs Morgan presented to the emergency department of St George Hospital complaining of mild headache after being discharged from hospital five days earlier following the motor accident. There was an onset of mild headache two days earlier, initially right-sided and now global, throbbing in nature. There was no nausea, vomiting or focal neurological deficit. Examination revealed an ongoing right gaze diplopia and right homonymous hemianopia, which were long-standing since a closed head injury in the 1970s.[11]
[11] Insurer's documents at page 90.
On 18 September 2020, Mrs Morgan underwent a CT scan of her brain. The CT scan demonstrated a stable appearance of the small left-sided subdural haemorrhage with a small-volume acute subarachnoid haemorrhage in the left parietal lobe not previously visualised.[12]
[12] Insurer's documents at pages 92-93.
On 18 September 2020, Mrs Morgan was cleared for discharge from a neurosurgery perspective and scheduled to undergo a further CT scan of the brain in three weeks and a referral to Dr Scholsem.
On 24 September 2020, Dr Previte referred Mrs Morgan to Dr Martin Scholsem, neurosurgeon and spinal surgeon.[13] In the referral letter, Dr Previte provided a detailed medical history. The medical history included a closed head injury in 1971, where
Mrs Morgan required burr holes and rehabilitation and was hospitalised for several months. Dr Previte also issued Mrs Morgan with a certificate of capacity that referred to her re-presentation, on his advice, to St George Hospital on 18 September 2020 for another CT brain scan because of headaches.
[13] Mrs Morgan’s documents at page 40.
On 9 October 2020, Dr Scholsem reported to Dr Previte that Mrs Morgan had returned for review that day. Dr Scholsem noted that Mrs Morgan was hit at low speed by a car on 12 September 2020 and that five days later, she developed mild headaches. She presented to the emergency department at St George Hospital and underwent a head CT scan that demonstrated no change in the size of the 4mm left hemispheric subdural haematoma and was discharged home. He noted that Mrs Morgan had been doing well and denied any headaches. Cognitive function had remained excellent. Mrs Morgan reported mild neck pain. On examination, he observed limitation of rotation to the left, tenderness in the left shoulder but no upper limb weakness or sensory changes. A repeat head CT scan on 6 October 2020 demonstrated no residual subdural haematoma. Dr Scholsem arranged for Mrs Morgan to undergo a cervical spine X-ray with dynamic views to rule out any problem with her neck.[14]
[14] Mrs Morgan's documents at page 26.
Later on 9 October 2020, Dr Scholsem reported to Dr Previte that he had reviewed Mrs Morgan’s cervical spine X-ray with dynamic views and that it did not demonstrate any fracture or instability.[15]
[15] Mrs Morgan's documents at page 25.
On 14 October 2020, Mrs Morgan consulted Dr Previte complaining of ongoing neck stiffness and requested physiotherapy. On examination, Dr Previte observed a palpable left parietal scalp haematoma and mildly tender but not cellulitic. There was no midline cervical spine tenderness. Cervical paraspinals and trapezius muscles were tight and mildly tender. The range of motion of her neck was reduced in all directions by stiffness and pain.[16]
[16] Mrs Morgan's documents at page 104.
On 14 October 2020, Dr Previte issued Mrs Morgan with a certificate of capacity.[17] Dr Previte provided a diagnosis of subdural, subarachnoid and subgaleal haemorrhages and strained neck muscles. In respect of causation, he noted that Mrs Morgan was hit by a car in a supermarket car park. Dr Previte identified metastatic breast cancer as a factor affecting Mrs Morgan’s recovery. Although irrelevant because she had long retired from work, he certified her fit for pre-injury work.
[17] Insurer's documents at pages 49-51.
On 12 November 2020, Mrs Morgan consulted Dr Previte advising that she had been receiving treatment from Mr John Kim, physiotherapist, and that her neck was feeling much better. She still had some pain. The pain and stiffness fluctuated. Physiotherapy was very helpful. On examination, Dr Previte observed a palpable left parietal scalp haematoma that was mildly tender. There was no midline cervical spine tenderness. The left cervical paraspinals and trapezius muscles were tight and mildly tender. Range of motion of the neck was still reduced by stiffness in all directions and pain was induced on the left.[18]
[18] Mrs Morgan's documents at page 105.
On 12 November 2020, Dr Previte issued Mrs Morgan with a certificate of capacity.[19] Dr Previte provided the same information in respect of diagnosis and causation as he had in the certificate referred to above. However, on this occasion he certified that Mrs Morgan had no current capacity for any work from 11 November 2020 to 9 December 2020. Dr Previte identified advanced breast cancer as a factor affecting Mrs Morgan’s recovery.
[19] Insurer's documents at pages 52-54.
On 30 November 2020, Mrs Morgan consulted Dr Previte by telephone complaining that her left sided neck pain had worsened over the weekend. On the previous night she had to sleep sitting almost upright. Muscle energy therapy exercises were not helping and she was unable to consult the physiotherapist because of the COVID-19 restrictions.[20]
[20] Mrs Morgan's documents at page 105.
On 18 March 2021, Mrs Morgan consulted Dr Minglei Zhang of the Earlwood Medical Centre advising that she was still undergoing physiotherapy and that she still had pain at the top of her head at the site of her injury, in the mornings. She wondered how long it would take her to finally recover.[21]
[21] Mrs Morgan's documents at page 109.
On 14 April 2021, Mrs Morgan underwent a CT scan of her brain. Amongst other things, the CT scan demonstrated bilateral posterior parietal and squamous temporal burr holes and there was a cyst encephalomalacia deep to the burr holes at the posterior parietal lobes bilaterally and the right temporal lobe. There was also evidence of a previous insult involving the left temporal pole medially. There was an extra-axial heavily calcified enhancing lesion abutting the right posterior petrous ridge, intimately related to the sigmoid sinus, favoured to be a meningioma.[22]
[22] Mrs Morgan's documents at pages 28-29.
On 26 May 2021, Mrs Morgan consulted Dr Previte advising that the insurer had rejected funding for further physiotherapy. She complained of ongoing neck stiffness and loss of function which caused difficulties with many ordinary tasks.[23]
[23] Mrs Morgan's documents at page 119.
On 23 June 2021, Mrs Morgan consulted Dr Previte complaining of ongoing issues with her neck since the motor accident. Physiotherapy had ceased because the insurer stopped paying for it and she was unable to afford it privately. The soreness was in the left side of her neck. Movement of the head exacerbated the pain and limited movement rotating the head to the right. Neck extension was particularly affected. She found she was unable to look down for activities such as using the computer, telephone, cooking and reading without leaning over. Sleep was also difficult due to pain and stiffness. On examination, Dr Previte observed asymmetrical posture with a slight hunch of the left neck/shoulder. He noted that it was Mrs Morgan’s normal posture but now appeared exaggerated. Range of motion on left rotation, right flexion and extension were reduced. There was mild tenderness of the left trapezius. There was no cervical midline tenderness. The shoulders were non-tender. Range of motion in the shoulders was normal.[24]
[24] Mrs Morgan's documents at pages 122-123.
On 6 July 2021, Mrs Morgan consulted Dr Previte complaining of ongoing neck pain and advising that she had undergone treatment with another physiotherapist, Mr Michael Nicholas. She found the treatment helpful.[25]
[25] Mrs Morgan's documents at pages 124-125.
On 25 August 2021, Mrs Morgan consulted Dr Previte complaining of ongoing left neck pain and stiffness. She reported ongoing difficulties with any tasks that required flexing her neck forward, such as, writing, cooking and answering the telephone. She stops and carries out the exercises provided to her by her physiotherapist multiple times per day. She did not suffer these symptoms prior to the motor accident. Nevertheless, she was able to cope with her activities of daily living with difficulty. Dr Previte telephoned Mr Nicholas to discuss Mrs Morgan’s condition and he opined that it was a post-whiplash syndrome that was likely relapsing.[26]
[26] Mrs Morgan's documents at pages 128-129.
On 1 December 2021, Mrs Morgan consulted Dr Previte complaining of ongoing neck pain and stiffness resulting in limitation of movement in the neck. On examination, Dr Previte observed mild tenderness of the right trapezius and left paracervical muscles and no tenderness of the cervical spine midline. All neck movements were limited by stiffness, particularly, left rotation about 15°; left lateral flexion about 30°; and forward flexion about 40°. Dr Previte recommended that Mrs Morgan continue with physiotherapy and home exercises for her neck.[27]
[27] Mrs Morgan's documents at page 134.
On 2 February 2022, Mrs Morgan consulted Dr Previte in respect of ongoing significant stiffness in her neck. On examination, Dr Previte observed that relaxed posture had 5° head rotation to the left and a slight elevation of the left shoulder; left rotation 40°; right rotation 40°; forward flexion 30°; extension 20°, right and left flexion 20° each. There was no midline cervical or thoracic tenderness. There was mild tenderness of the left paracervical muscles. There was no scalp tenderness. Dr Previte recommended that Mrs Morgan continue with physiotherapy and home-based exercises.[28]
Medico-legal reports
[28] Mrs Morgan's documents at pages 138-139.
Dr Drew Dixon: 8 March 2022
On 23 February 2022, Mrs Morgan consulted Dr Drew Dixon, consultant orthopaedic surgeon, via an audio-visual platform at the request of her lawyers. Dr Dixon prepared two reports in respect of the consultation both dated 8 March 2022.[29]
[29] Mrs Morgan's documents at pages 30-35.
Dr Dixon took a history of the motor accident and Mrs Morgan’s subsequent treatment that was consistent with the evidence. He referred to and reviewed the radiological investigations provided to him.
In respect of Mrs Morgan’s general health and other conditions, Dr Dixon noted that it included breast cancer in 2013 for which she required a right mastectomy and lymph node resection of the right axilla, followed by X-ray therapy. There was a recurrence in 2018 requiring further surgery and phytotoxic drugs. She had lymphoedema of the right arm and wore a Tubigrip on that side. In July 2016, she fractured her right radius and ulnar and suffered a right venous ulcer. She had Hashimoto’s disease of the thyroid but did not require medication. In 2018, she suffered from right otalgia. She experiences recurrent bouts of cellulitis. She has bilateral osteoarthritis of the knees. She underwent a bilateral inguinal hernia repair in 2020. In April 2020, she had a fall causing multiple fractures to her right side including the superior and inferior pubic rami, sacral ala and L5 transverse process. In 1971, she was involved in a motorcycle accident where she sustained a severe head injury that required bilateral occipital burr holes for an intracranial bleed and has a residual blindness in her right eye from the brain injury.
In respect of current symptoms, Dr Dixon noted that Mrs Morgan reported residual left-sided occipito-parietal headache on the left, left-sided neck pain with recurrent spasm of the trapezius muscle with left shoulder brachalgia and pain at the point of the left shoulder with difficulty elevating the arm above shoulder height. She reported that her left elbow had settled. The neck pain disturbs her sleep. She has changed pillows and has difficulty sleeping on her left shoulder. She experiences difficulties with household chores as well as self-care. The pain is localised to the left side of her neck, extending from behind the ear through the trapezius muscle towards the shoulder and anteriorly to the left sternomastoid muscle with pain in the upper deltoid muscle. She has difficulty reaching objects on high shelves and performing overhead tasks at home. She has difficulty with heavy lifting and carrying due to left shoulder brachalgia. She did not report paraesthesia in either upper limb. She reported persisting oedema in the right upper extremity for which she wears a Tubigrip.
In respect of current treatment, Dr Dixon noted that Mrs Morgan takes Letrozole for her breast cancer and Panadol for residual left-sided headaches, left neck pain and left shoulder brachalgia. She takes Caltrate and has Prolia injections for osteoporosis. She takes vitamin D. She had been having physiotherapy treatment particularly for trapezial muscle spasm in her neck and has been using liniment and a wheat pack on occasion for heat application as well as hot showers in that area.
On examination of Mrs Morgan’s neck, Dr Dixon observed that she had torticollis of her neck to the left. She indicated trapezial muscle spasm and tenderness of the sternomastoid muscle on that side. She had dysmetria with flexion decreased by one quarter and extension by one half. Lateral rotation to the right was decreased by one half and that to the left was decreased by one third. Lateral flexion to the left was decreased by one third and that to the right was decreased by one half, associated with pulling pain of her left trapezius muscle. She had difficulty looking up.
On examination of Mrs Morgan’s left shoulder, Dr Dixon observed that there was stiffness on elevation with forward flexion 150°, active abduction 120° with pain at the point of the shoulder, extension 40°, abduction 30°, external rotation 80° and internal rotation 40° which, again, was associated with some pain at the deltoid.
On examination of Mrs Morgan’s right shoulder, Dr Dixon observed stiffness with forward flexion 160°, abduction 150°, extension 40°, adduction 40°, external rotation 80° and internal rotation 60° which was attributable to the prior breast surgery with axillary node clearance and persisting lymphoedema.
On examination of Mrs Morgan’s arms, Dr Dixon observed that she was able to make a full fist with her hand and had a good range of motion of her elbows.
Dr Dixon observed that Mrs Morgan’s presentation was consistent.
Dr Dixon opined that Mrs Morgan had sustained the following injuries as a result of the motor accident:
(a) left subdural haematoma, now resolved with occasional headaches in this area following the head injury without loss of consciousness and without amnesia for the accident details;
(b) neck strain injury with post-traumatic stiffness with persisting torticollis on the left with trapezial muscle spasm and sternomastoid pain with dysmetria;
(c) post-traumatic stiffness of the left shoulder with trapezial muscle and deltoid pain, and
(d) left elbow laceration, now healed.
Dr Dixon opined that Mrs Morgan had reached maximum medical improvement and was satisfied that there were no symptomatic pre-existing conditions in her neck or left shoulder.
Dr Dixon assessed Mrs Morgan’s neck as a DRE cervicothoracic category II impairment rating (5% WPI) on the basis of the post-traumatic stiffness of her neck with torticollis with spasm of the trapezius muscles and dysmetria (Table 73, AMA 4 Guides).
In respect of the left shoulder post-traumatic stiffness with trapezial muscle pain and spasm, Dr Dixon assessed a 6% WPI in respect of the left upper extremity (pie charts 38, 41 and 44 AMA 4 Guides).
Dr Dixon concluded that Mrs Morgan had a combined WPI of 11%.
Dr Grant Walker: 5 April 2022
On 5 April 2022, Mrs Morgan consulted Dr Grant Walker, consultant neurologist, at the request of the insurer’s lawyers. Dr Walker prepared a report in respect of the consultation dated 5 April 2022.[30]
[30] Insurer's documents at pages 20-27.
Dr Walker took a past medical history that was consistent with the evidence.
Dr Walker took a history of the motor accident and Mrs Morgan’s subsequent treatment that was consistent with the evidence. He referred to and reviewed the radiological investigations provided to him.
In respect of current complaints, Dr Walker noted that Mrs Morgan complained of ongoing neck pain and restriction of movement of the neck due to pain. The neck was constantly turned towards the left and she finds trying to turn to the right or extending the neck will give her significant pain. She has more pain if she looks down for any length of time such as when looking at a screen, cleaning or gardening. She says that her neck cramps. She stated that she had no problems with her shoulders. Mrs Morgan complained of ongoing bilateral knee pain which was present prior to the motor accident. She complained of a sensation of pins and needles in the first three fingers of both hands that occurs mostly at night. She has had this for some time. Dr Walker opined that, despite not having undergone appropriate investigations in the form of nerve conduction studies, the symptoms were almost certainly a carpal tunnel syndrome and unrelated to the motor accident. Mrs Morgan takes six to eight Panadol per day.
On examination, Dr Walker observed that Mrs Morgan’s head was tilted to the left as described above. There was a limitation of all directions of movement of her neck, due mostly to pain. There was no excessive contraction or spasms of the cervical muscles. She uses a compression bandage on her right arm extending down to the wrist because of her past breast cancer and localised oedema. She walks fairly slowly and does have a little difficulty with tandem gait. All reflexes were symmetrical and preserved.
Dr Walker concluded that Mrs Morgan had sustained a significant injury to her head and some more generalised injuries as a result of the motor accident. He opined that there did not appear to be any neurological sequelae as a result of the motor accident but rather, she had ongoing neck pain. Mrs Morgan’s neck pain had not been investigated to a reasonable degree. Dr Walker opined that she required a cervical spine MRI scan and a referral to a spinal surgeon, at the very least. He was also of the opinion that Mrs Morgan clearly had pre-existing cervical degenerative disease but denied any symptoms from it.
Dr Walker was satisfied that Mrs Morgan’s complaints and alleged disabilities were consistent with the injuries sustained in the motor accident.
Dr Walker was of the view that he could not provide a diagnosis without the appropriate investigations he had referred to in respect of the cervical spine. He opined that Mrs Morgan had suffered an exacerbation of pre-existing cervical degenerative disease caused by the motor accident. However the exact pathophysiological cause of her ongoing pain and restricted movements was uncertain.
Dr Walker opined that both Mrs Morgan’s head injury and neck injury were significant. Whilst she had no sequelae from her head injury, she certainly has a significant problem with her cervical spine which was, at least, partly due to the motor accident.
Dr Walker opined that Mrs Morgan had a DRE cervicothoracic category II impairment rating with loss of range of movement which equated to 5% WPI.
In commenting on Dr Dixon’s report, Dr Walker agreed with Dr Dixon’s impairment assessment in respect of the cervical spine. However, Dr Walker opined that Mrs Morgan did not have true torticollis. He noted that Dr Dixon rated WPI impairment in respect of Mrs Morgan’s left shoulder and disagreed with the assessment because Mrs Morgan denied any problems with it.
Dr Walker concluded that Mrs Morgan had a WPI of 5%.
SUBMISSIONS
Mrs Morgan’s submissions
Mrs Morgan submitted that the injuries for assessment exceed 10% WPI.
Mrs Morgan relied on the reports of Dr Dixon dated 8 March 2022, who assessed the cervical spine at 5% WPI and the left shoulder at 6% WPI, resulting in a total WPI of 11%.
Insurer’s submissions
According to the NSW ambulance electronic medical record on 12 September 2020, there was no cervical spine tenderness reported by Mrs Morgan.
The St George Hospital patient handover care plan for Mrs Morgan’s admission on 12 September 2020 described the diagnosis and presenting problem without mention of any neck issue.
The St George Hospital clinical records on 12 September 2020 referred to minor cervical spine pain on palpation, the development of neck pain on route to hospital, mild neck tenderness on route and the application of a soft collar. A complaint of neck stiffness from the soft collar was also recorded.
There was no mention in the clinical records of any ongoing neck issues when Mrs Morgan returned to St George Hospital on 18 September 2020 complaining of headache.
Mrs Morgan’s WPI is not greater than 10%. In this regard, the insurer relied on the report of Dr Walker dated 5 April 2022, who assessed the cervical spine at 5% WPI.
The certificate of assessment issued by Medical Assessor Cameron dated 28 March 2023 should be confirmed.
THE RE-EXAMINATION
Mrs Morgan attended a Panel medical examination with Medical Assessor Lahz in the Commission’s medical suites on 17 October 2023. The duration of the history taking and examination was 80 minutes.
Mrs Morgan arrived early for the re-examination and was accompanied by her husband although, he waited in the waiting room during the medical assessment. Mrs Morgan was aware of the reason for the medical examination, namely, a reassessment of the injuries sustained in the motor accident.
Background
Mrs Morgan lives with her husband in a two-storey strata villa where they have been residing for 7.5 years. She is now aged 76 and they have two adult sons. She explained that both her children are separated from their partners and she has frequent involvement with her grandchildren which she enjoys.
Past medical history
Mrs Morgan has an extensive past medical history. In 1971, she was involved in a serious motorbike accident in which she sustained a traumatic brain injury. There was a prolonged hospitalisation of about three months followed by rehabilitation. She said that holes were drilled on both sides of her head because they did not have the “things” we now have. Due to that accident, she reported visual difficulties, namely, a right visual field cut, permanently preventing her from driving and also double vision for which she required multiple operations on her eyes to tighten muscles. However, she denied any significant ongoing cognitive deficits from that accident and said that her memory and thinking were fine. “At the start, I was very forgetful although I got much better”, she remarked.
After the 1971 motorbike accident, Mrs Morgan returned to business college to relearn typing and shorthand which she had been studying beforehand. She said that she was slower with these tasks than prior to her motorbike accident although, she was still able to be successfully employed in an office. She went on to work in many offices as a “temp” and also able to travel the world independently. She married in 1976 and went on to have her sons in 1980 and 1983, taking time out of the workforce. Later, she worked in market research and trucking logistics. She also used to regularly complete typing for her father.
Regarding her neck, Mrs Morgan acknowledged mild neck symptoms for several years before the motor accident. She said her head did have a slight leftward tilt before the motor accident although this was much worse now. There was sporadic neck pain before the motor accident whereas now, there are constant painful symptoms. Moreover, she says that she has, due to the motor accident, lost active elevation of the left shoulder. She used to be able to reach items in high cupboards or shelves whereas now she cannot. She acknowledged previous left shoulder troubles although noted that these were episodic, not pervasive and not interfering with daily activity levels.
Mrs Morgan is known also to have a small right-sided meningioma which is monitored.
In 2003, Mrs Morgan was diagnosed with right-sided breast cancer treated with mastectomy and radiotherapy as well as Arimidex hormonal therapy. She was offered chemotherapy and declined it. In 2018, there was a recurrence in the right axilla for which she underwent significant surgery, “They removed as much tissue as they could without my requiring plastic surgery”, she explained. The latter surgery has caused loss of right shoulder movement due to tightness of the soft tissues in the adjacent axilla. She also received further radiotherapy but no chemotherapy and is now prescribed Letrozole, which is also hormonal therapy. At her recent oncology appointment, Mrs Morgan reports receiving an “all clear”.
Mrs Morgan acknowledged her fall in the garden with attendant pelvic and rib fractures in April 2020 and said that, most recently, she has started using a stick for the sake of balance and security. “Bad” knees were also mentioned.
More recently, Mrs Morgan has been diagnosed with paroxysmal atrial fibrillation and been prescribed an anticoagulant, Eliquis.
Mrs Morgan also has osteoporosis for which she receives six monthly Prolia injections.
Mrs Morgan’s other medications are mostly complementary for aches and pains and memory including calcium, vitamin D, Glucosamine, Turmeric and Ginkgo Biloba.
History of the motor accident
Mrs Morgan described the motor accident in which she had been walking in a carpark when she felt something “hit” her from behind. She thought the force relatively light although she was still thrown to the ground, landing hard on the left side and in the process, hitting her head. She fully recalls the event following which the at-fault driver came to her aid.
History of treatment and history following the motor accident
An ambulance was called and Mrs Morgan was taken to St George Hospital where she was not especially impressed with her treatment. She was there overnight initially in a room with a snoring inmate. She was moved to another room although the food was horrible and said that no one was medically examining her. She had neither glasses nor telephone on hand and felt it best to return home the next day.
Mrs Morgan was able to say that a scan of the brain at the hospital showed a small amount of blood “under the covering” with a progress scan suggested to occur several weeks later. By early October 2020, the progress brain scan showed that the subdural bleeding had resolved.
As a result of the soft tissue head injury caused by the motor accident, Mrs Morgan reported an ongoing painful and tender lump on the left side of her head. Sometimes, there are sharp pains about the left side of her head which can persist for a while before resolving spontaneously. On specific enquiry, she did not report any cognitive, behavioural or emotional changes due to the head injury from the motor accident. Her concerns solely related to the painful “bump” and associated localised head pain.
Mrs Morgan leads a functional life, still cooking, shopping, handling money and doing her chores. She regularly sees her adult children and grandchildren and enjoys socialising with them. She described various recent meet-ups and outings with family and friends including old workmates. She did not report any adverse personality or mood changes since the motor accident. She is generally in good spirits, eating and sleeping well. She also still enjoys reading and gardening and has a good appetite.
Mrs Morgan can take public transport on her own and at other times, her husband drives her. She has never been permitted to drive due to the visual field deficit from the 1971 motorbike accident. She said too that she often goes out walking with her husband.
Mrs Morgan’s greatest concern with respect to the injuries resulting from the motor accident is the neck and left shoulder. Her head is constantly pulled toward the left side by tight muscles and it is only with great effort that she can straighten it. For example, to have a passport photograph taken. She reported a constant pain starting behind the left ear and spreading inferiorly over the left trapezius muscle.
Mrs Morgan did not report any weakness, paraesthesia or radicular pain in the left upper limb.
Mrs Morgan received 20 to 30 sessions of physiotherapy after the motor accident for the neck which she said was helpful although, this typically only produced a transient benefit. She reported that the physiotherapy treatment consisted of massage, modalities, range-of-motion and isometric exercises.
Mrs Morgan accepted that her neck will likely remain the way it is and that she will continue to demonstrate a marked leftward head tilt and need to take regular Panadol.
Mrs Morgan is not receiving any specific treatment for the injuries from the motor accident.
Clinical examination
On examination, Mrs Morgan presented as a pleasant, talkative woman. She was somewhat digressive and verbose although, she could easily be brought back to the subject at hand, remaining very cooperative throughout the history and examination.
There was a consistent, very marked leftward head tilt which she struggled to correct. It was uncomfortable if she tried to do so although, with effort, she could bring her head to the nearly upright position.
Mrs Morgan was oriented to time, place and person, neatly and appropriately attired for the prevailing weather conditions.
On the Montreal Cognitive Assessment (MoCA), Mrs Morgan scored 24/30, the main deficits being short term memory and abstraction. It was also apparent that Mrs Morgan was quite impulsive, sometimes rushing in to complete the task before having fully understood and/or considered the instructions.
Mrs Morgan’s gait was relatively normal carrying a walking stick.
Mrs Morgan was also wearing a compression garment on the right upper limb for chronic lymphoedema, a remnant of the right-sided mastectomy and node clearance in 2003.
There was a small palpable, slightly tender bump in the left parietal region.
There was a “poke neck”, that is, a protracted head posture as well as the abovementioned left-sided torticollis.
There was tenderness over the left trapezius extending over the ipsilateral neck. There was palpable spasm in the left-sided neck muscles which could not be relaxed and which were pulling her head towards the left.
There was half the normal range of neck flexion, absence of extension, half the normal range of rightward rotation and lateral flexion and minimal active leftward rotation and lateral flexion, given that her head already pulled strongly toward the left. There was dysmetria, associated with muscle spasm.
The right arm girth was 6cm larger than the left 10cm above the elbow crease (32 vs 26), and the right forearm girth 3cm larger (27 vs 24).
As noted, the right arm/forearm girth measurements do not comprise a “constitutional baseline” due to the history of breast surgery and radiotherapy, causing right upper limb lymphoedema.
Similarly, the right shoulder range of motion is also not a constitutional baseline given the history of breast surgery and the more recent surgery of the right axilla giving rise to visible tethering of soft tissues in this location, causing restriction of right shoulder movement.
Upper limb power was normal as was sensation. Upper limb reflexes were also normal and symmetrical.
Upper limb neural tension tests were negative bilaterally.
At the shoulders, the following movements were observed and measured with a goniometer on three occasions:
Right Left Abduction 100° 110°, 100°, 110° Adduction 50° 40°, 40°, 40° Flexion 90° 120°, 110°, 110° Extension 60° 60°, 60°, 60° Internal rotation 80° 70°, 70°, 70° External rotation 80° 80°, 70°, 70°
There was slight variability of left shoulder movement due to pain referred from the neck. Mrs Morgan had localised pain over the trapezius which was tender. With terminal left shoulder flexion and abduction, she winced and grimaced although she tried her best. Impingement tests were negative at both shoulders. There was bilateral reduction of scapular musculature bulk.
There was a full constitutional range of motion at the elbows, wrists and hands.
Consistency of presentation
Mrs Morgan presented in an honest, straightforward and consistent manner.
Diagnosis, causation and permanent impairment
The head injury
The diagnosis is one of, at most, a mild complicated traumatic brain injury in the motor accident without residual neurological, cognitive or behavioural or emotional deficits, despite the presence of a small subdural bleed on initial brain imaging. She did not report any cognitive, behavioural or emotional difficulties due to the mild complicated brain injury associated with a small subdural bleed. There was no verified post-traumatic amnesia (PTA) although, the GCS at the motor accident scene was 14/15 and the scan at the hospital showed only a small subdural haemorrhage, which quickly resolved within a few weeks.
The Panel is satisfied that the mechanism of the motor accident, that is, being knocked over by a reversing vehicle and falling heavily onto her left side and striking the left side of her head on the concrete car park floor, could have caused or contributed to Mrs Morgan’s mild complicated traumatic brain injury. Further, the Panel is satisfied that it did cause such injury.
Due to the earlier much more severe brain injury in 1971, there are residual neurological deficits including visual field deficit, reduced memory, some impulsivity and concrete thinking. However, Mrs Morgan recovered sufficiently from this earlier injury to live a fulfilling life, being able to work, travel, marry and parent children. She reports good familial relationships, an active social life and ongoing independence. She also enjoys gardening.
Mrs Morgan denies cognitive deficits from the initial traumatic brain injury in 1971 although, given the severity of the injury, indicated by the prolonged hospitalisation and rehabilitation period, this would be unusual. There are likely, at least, mild deficits in memory and executive function despite an overall very satisfactory recovery from the original injury, with an ability to live a worthwhile functional life. Mild cognitive deficits were apparent on the MoCA demonstrating some difficulties with respect to memory, impulsivity and abstraction.
The traumatic brain injury sustained in the motor accident has been generally mild and not left Mrs Morgan with a permanent WPI.
Referring to cl 6.164 of the Guidelines, Mrs Morgan satisfies the criteria for the occurrence of a traumatic brain injury due to the motor accident. There was evidence of significant impact to the head and there was abnormal brain imaging, namely, subdural bleeding. Due to the mild complicated brain injury sustained in the motor accident, the CDR score is 0 for each of the categories of memory, orientation, judgment and problem solving, community affairs, home and hobbies and personal care (Table 6.9 of the Guidelines). Therefore, the CDR score is 0, which equates to 0% WPI for the mild traumatic brain injury caused by the motor accident.
Any ongoing cognitive difficulties in Mrs Morgan are due to the earlier much more severe traumatic brain injury sustained in the motorbike accident of 1971. Mrs Morgan did not report any new cognitive, emotional or behavioural difficulties due to the traumatic brain injury from the motor accident. She reported a painful area over the scalp, namely, the left parietal region, which is due to a soft tissue injury to the cranium and nothing to do with the mild brain trauma sustained in the subject motor accident.
The cervical spine
The diagnosis is one of a soft tissue injury to the cervical spine on the background of multilevel degenerative changes demonstrated in the St George Hospital CT scan dated 12 September 2020. X-rays of the cervical spine with dynamic views on 9 October 2020 did not demonstrate any fracture or instability.
The Panel is satisfied that the mechanism of the motor accident, that is, being knocked over by a reversing vehicle and falling heavily onto her left side and striking the left side of her head on the concrete car park floor, could have caused or contributed to the soft tissue injury to Mrs Morgan’s cervical spine. Further, the Panel is satisfied that it did cause such injuries.
The Panel is satisfied and finds that the clinical presentation in respect of Mrs Morgan’s neck is consistent with a DRE cervicothoracic category II impairment rating. There is cervical spine dysmetria with muscle spasm. There is no objective evidence of loss of structural integrity.
A 5% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, Chapter 3, Page 104.
The criteria for a diagnosis of DRE cervicothoracic category III impairment rating is not established as the criteria for radiculopathy are not found in accordance with cl 6.138 of the Guidelines, which are as follows:
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 of the Guidelines);
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 of the Guidelines);
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 of the Guidelines);
(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.
None of the criteria to support the presence of a cervical radiculopathy are met.
The left shoulder
The diagnosis is one of a soft tissue injury to the left shoulder.
The Panel is satisfied that the mechanism of the motor accident, that is, being knocked over by a reversing vehicle and falling heavily onto her left side and striking the left side of her head on the concrete car park floor, could have caused or contributed to the soft tissue injury to Mrs Morgan’s left shoulder. Further, the Panel is satisfied that it did cause such injury.
As noted, the right shoulder does not represent a constitutional baseline with respect to range of motion due to the history of breast cancer surgery and right upper limb lymphoedema. There is also thoracic kyphosis with poke neck posture causing additional restriction of the shoulders. There is a spastic left-sided torticollis, that is, muscle spasm causing the neck to tilt toward the left side, capable of reducing left-sided shoulder movements.
Mrs Morgan reports a significantly better range of left shoulder motion before the motor accident although, the medical records do not contain any useful information about pre-existing left shoulder movement.
There is now variable restriction of motion (but overall small variability) of the left shoulder due to pain referred from the neck.
Mrs Morgan does not have a full range of motion at the shoulders due to her history of right-sided breast cancer surgeries, thoracic kyphosis, poke neck posture and left-sided cervical muscle spasm (from torticollis) causing restriction of bilateral shoulder motion.
The variability in movement at the left shoulder was overall mild, and as noted, Mrs Morgan presented in a transparent manner and did her best during the examination. She would not have demonstrated normal movement as per the AMA 4 Guides at either shoulder before the 2020 motor accident, due to the factors mentioned above.
The Panel accepts that Mrs Morgan demonstrates left shoulder flexion of 120°, that is, 4% upper extremity impairment (UEI) (Figure 38, page 43 of the AMA 4 Guides) and left shoulder abduction of 110°, that is, 3% UEI (Figure 41, page 44 of the AMA 4 Guides). There is no impairment for loss of left shoulder motion in other planes of movement. In accordance with Table 3, page 20 of the AMA 4 Guides, 7% UEI equates with 4% WPI.
No deduction can be made for a constitutional baseline (range of motion at the right shoulder) because the right shoulder is also restricted due to the multiple medical factors as described above.
The left elbow
The diagnosis is one of a soft tissue injury to the left elbow and a laceration to the left elbow.
The Panel is satisfied that the mechanism of the motor accident, that is, being knocked over by a reversing vehicle and falling heavily onto her left side and striking the left side of her head on the concrete car park floor, could have caused or contributed to the soft tissue injury to Mrs Morgan’s left elbow and the laceration thereof. Further, the Panel is satisfied that it did cause such injuries.
On re-examination, Mrs Morgan made no complaint about ongoing pain or restriction in the left elbow. There was a full constitutional range of motion at the elbows, wrists and hands. The laceration to the left elbow had resolved.
There is no assessable permanent impairment of the left elbow.
Final WPI
In accordance with the Combined Values Chart (pages 322-324 of the AMA 4 Guides), 5% WPI for the cervical spine and 4% WPI for the left upper extremity (left shoulder) amounts to a final WPI of 9%.
Accordingly, the Panel assesses the combined degree of permanent impairment caused by the motor accident as 9% WPI.
FINDINGS
The Panel adopts the re-examination findings and conclusions of Medical Assessor Lahz based on her examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
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[31] and Insurance Australia Ltd v Marsh.[32]
[31] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[32] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel revokes the certificate issued by Medical Assessor Cameron dated 28 March 2023.
The Panel determines that Mrs Morgan sustained a mild complicated traumatic brain injury, a soft tissue injury to the cervical spine, a soft tissue injury to the left shoulder and a soft tissue injury and laceration to the left elbow (the latter having now resolved) caused by the motor accident.
The Panel determines that the injuries caused by the motor accident do not give rise to a WPI greater than 10%, that is, a WPI of 9%.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
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