Natali v AAI Limited t/as GIO
[2023] NSWPICMP 213
•18 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Natali v AAI Limited t/as GIO [2023] NSWPICMP 213 |
| CLAIMANT: | Mario Natali |
INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 18 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Assem dated 30 March 2022 and whole person impairment (WPI) assessment; claimant’s application for review of WPI assessment of 9% concerning cervical spine, lumbar spine, right shoulder, left shoulder, left knee and left hip; claimant involved in head on collision on 4 June 2018; issue considered about when complaints injury made; causation considered to consider the claimant’s assertion that the medical assessor failed to engage with the material and incorrectly determined causation; consideration of the impact of subsequent fall by the claimant and injuries arising from this; claimant medically examined by the Panel and complaints considered in light of extensive radiological investigations; Held – Panel satisfied that as a direct consequence of the accident the claimant suffered injuries to his cervical spine, lumbar spine, right shoulder; WPI assessed at 11%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Assessor Assem of 30 March 2022. 2. The Panel finds that directly arising out of the accident on 4 June 2018, the claimant has suffered the following injuries; a. cervical spine soft tissue injury b. lumbar spine soft tissue injury c. right shoulder aggravated acromioclavicular arthritis caused by the accident. 3. The Panel finds that the following injuries were not caused by the accident; a. left shoulder rotator cuff disease and tear. 4. The Panel finds that as a result of the accident the claimant suffered injury to his left knee and left hip however, these injuries have resolved. 5. The Panel finds that injuries suffered by the claimant and arising out of the accident give rise to a whole person impairment of 11%. |
REASONS
Decision reviewed
1. This is an application for review of the decision of Medical Assessor Assem (the Medical Assessor) dated 30 March 2022,
2. The following injuries were referred by the Personal Injury Commission for assessment of whole person impairment:
a)Cervical spine – Disc lesion, facet joint dysfunction.
b)Lumbar spine – Lumbar disc lesion.
c)Right shoulder – Tendonitis and rotator cuff disruption.
d)Left shoulder – Tendonitis and rotator cuff disruption.
e)Left knee – Chondromalacia patellae.
f)Left hip – Labral tear.
3. The Medical Assessor found that the following injuries caused by the accident gave rise to a permanent impairment of 9% and is not greater than 10%:
a)Cervical spine – soft tissue injury
b)Lumbar spine – soft tissue injury
c)Right Shoulder – soft tissue injury
The accident
4. The claimant was involved in an accident on 4 June 2018, He was driving a 4WD vehicle along Prairie Vale Road, Bossley Park when a vehicle travelling in the opposite direction lost control causing a head on collision. The claimant was wearing a seat belt. The airbags were deployed.
5. The claimant reported injuries to his neck, back and shoulder. His vehicle was towed away and later written off for insurance purposes. He was transported home after the accident. The claimant consulted his doctor the day following the accident .
Claimant’s submissions
6. The claimant says that the Medical Assessor failed to establish causation in relation to the left shoulder, left hip and left knee and failed to properly consider causation in accordance with the permanent impairment guidelines and the common law test of causation.
7. The claimant further says that rather than making an assessment that the guidelines required, the Medical Assessor rejected the ”theory ” on the basis of the absence of contemporaneous evidence and fell into error in doing so.
8. The claimant says that the Medical Assessor failed to engage with the material and incorrectly determined causation.
9. The claimant says that in this case, the relevance of absence of contemporaneous evidence is even more problematic. It is submitted that, as is made clear from the guidelines, and is generally the approach of the common law, causation means ”that a physical, chemical or biological factor contributed to the occurrence of a medical condition”. In deciding such a question, the claimant says that the issue that must be determined is whether the injury caused “or contributed to worsening” of the impairment; it does not have to be the sole cause, provided it is a contributing cause that is more than negligible. Further, causation can be direct or indirect. The claimant says that this was an issue which was not addressed by the Assessor.
10. The claimant submitted that the test of causation at common law is to be read in conjunction with the Motor Accident Authority Permanent Impairment Guidelines (the guidelines). The claimant says that what must be established is that the defendant’s conduct was responsible for an adverse difference in the claimants condition and its negligence was a cause of that difference.
11. The claimant says that the the Medical Assessor had available to him, the clinical notes of My Family Health Medical Centre at Gregory Hills. The accident occurred on 4 June 2018. These notes confirm a consultation on 8 June 2018 with a complaint of headache, neck pain, right shoulder pain, right wrist pain and ongoing middle and lower back pain.
12. A clinical note of 14 June 2018 then referred to back and shoulder pain. There is a further consultation note of 2 July 2018 which refers to ongoing neck/back/hip/left knee/left ankle pain. Also, the claimant says that there is a reference to neck pain radiating to both arms and pins and needles.
13. A further clinical entry of 9 July 2018 refers to the radiology findings in the MRI scan.
14. There is a clinical note of 19 July 2018 which refers to;
a)Right/left shoulder pain
b)ongoing left hip and left knee pain
c)affecting his walking
d)asking for MRI
15. The claimant says that in the circumstances based on what was said in Bugat v Fox [2014] NSWSC 888 and Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 the test of causation is not confined to the immediate affects of the accident. Furthermore, the claimant says that the Medical Assessor wrongly treated the absence of contemporaneous documentation as decisive on the issue of causation. The claimant submits that in Bugat, Hume AJ at paragraphs 31 and 32, warned not to place too much weight on the absence of contemporaneous complaint.
16. The claimant submits that the lack of clear complaint in this matter is not overly substantial when it is considered in context. The claimant submits that he is a self-employed gentleman and that for him, it was best to recover from his injuries and get on with managing his symptoms. The claimant says that the forces and impact involved in the accident were substantial. The accident occurred on 4 June 2018. There is a reference to back and shoulder pain on 14 June 2018 but the claimants says that it is unclear whether or not that is a reference to both shoulders or just the left shoulder and just the right shoulder.
17. The claimant says that clearly, a reference to neck pain radiating down both arms on 2 July 2018 was made. Additionally, there is a reference to right/left shoulder pain on 19 July 2018. The claimant says that whilst six weeks had passed since the accident and that is the first available clear complaint of both left shoulder pain or right shoulder pain, the Medical Assessor erred in finding that the left shoulder was not causally related to the accident.
18. The claimant says that it follows that the Medical Assessor upon failing to consider causation, then failed to undertake an apportionment of what the whole person impairment was for the subject accident and what the whole person impairment was relating to a fall in around April 2020 where he sustained further injury to his left shoulder requiring arthroscopic surgery. The claimant says that the Medical Assessor ought to have engaged in that statutory task but did not do so.
Insurer’s submissions
19. The insurer submits that the Medical Assessor, in determining the issue of causation, provided a detailed path of reasoning which demonstrated his engagement with the claimant's theories surrounding causation of the alleged left shoulder, left hip, and left knee injuries.
20. In that regard, the insurer submits that in his determination of the issue of causation, the Medical Assessor had provided a detailed path of reasoning which demonstrated engagement with the claimant's "theories" regarding causation of the alleged injuries.
21. The insurer highlights the following instances demonstrated in the Medical Assessor’s path of reasoning:
a)At page 3, the Medical Assessor obtained a pre-accident medical history and recorded the following response from the Claimant:
i."I brought to his attention that he did not seek medical attention from Dr Touma until 8 June 2018 (four days after the motor vehicle accident). He stated that he had difficulty recollecting events that occurred nearly four years ago. According to the medical records of Dr Touma, there was a large bruise over his right shoulder, pain in his neck, back and right wrist." (insurers emphasis)
b)At page 3, the Medical Assessor further recorded the following:
i."There were no other injuries documented until 2 July 2018 when Dr Touma added injuries to the left hip, knee and ankle. When this was brought to his attention, he reported immediate discomfort in his left hip and knee from maintaining his leg firmly on the floor of the vehicle." (insurers emphasis)
c)At page 3, the Medical Assessor questioned the claimant regarding his post-accident symptomatology:
i."I also noted that his left shoulder symptoms were not documented until 19 July 2018 (six weeks after the motor vehicle accident). When this was brought to his attention, he was unable to provide a direct response, stating that subsequent radiological imaging showed that the left shoulder was worse than the right." (insurers emphasis)
d)At page 5 and 6, the Medical Assessor conducted a clinical examination of the left shoulder, left knee hip and knee, providing his observations and findings of range of motion.
e)At page 7, the Medical Assessor considered the report of Dr Mastroianni dated 25 March 2020 and commented that:
i."as it was prior to the surgical procedure to his left shoulder, it is probably a more accurate reflection of the underlying impairment as a consequence of the motor vehicle accident." (insurers emphasis)
f)At page 8, the Medical Assessor considered a whole-body bone scan dated 26 November 2018.
g)At page 8, the Medical Assessor considered an MRI of both shoulders dated 29 November 2018.
h)At page 9, the Medical Assessor considered an X-ray and ultrasound of the left shoulder dated 21 April 2020.
At page 10, the Medical Assessor provided his path of reasoning and determination, as he
determined that:
"The later development of symptoms involving his left hip and knee
approximately four weeks after the motor vehicle accident and left shoulder
approximately six weeks after the motor vehicle accident are not causally
related. During this period, he consulted his local doctor several times without
reporting any other symptoms. Had there been a soft tissue injury to his left
shoulder, left hip and left knee, the symptoms would have been present soon
afterwards and interefered (sic) with his work activities. (emphasis added)
…I therefore did not consider that there was sufficient evidence to accept
causation for the injuries to his left shoulder, left hip and left knee."
(claimants emphasis added)
22. Based on the above, the insurer submits that the Medical Assessor took into account the history of the motor vehicle accident, findings on clinical examination, and his review of all documentation in providing his findings on page 10.
23. The Medical Assessor is further highlighted to have considered the claimant's theory regarding the absences of contemporaneous complaints and had asked the Claimant the necessary investigative questions to properly consider the claimant's theory.
24. The insurer submits that the Medical Assessor correctly determined the issue of causation, and in doing so had provided a detailed path of reasoning which demonstrated a clear engagement with the theories surrounding causation.
25. Claimant's alleged error: "The Assessor failed to establish causation in relation to the left shoulder, left hip and left knee and failed to properly consider causation in accordance with the permanent impairment guidelines and the Common law test of causation."
Left Shoulder
26. In the Claimant's submissions, the relevance of contemporaneous evidence in the determination is discussed with the Claimant eventually alleging in paragraph 10 and 19 that the Medical Assessor had not addressed an "issue" of causation and had "wrongly treated the absence of contemporaneous documentation as decisive on the issue of causation".
27. The insurer submits that the Medical Assessor’s determination of causation was conducted in
accordance with the permanent impairment guidelines and the common law test of causation.
28. The insurer further submits that the Medical Assessor duly satisfied his obligations in accordance with the prescribed tests for causation and had issued a determination which did not entirely rely on the 'absence of contemporaneous complaint' as a decisive factor, but one factor in a body of collective factors which contributed to the finding.
29. The Insurer highlights the following:
(a) At page 3, Assessor Assem questioned the Claimant regarding the post-accident symptomatology of his left shoulder:
"I also noted that his left shoulder symptoms were not documented until 19 July 2018 (six weeks after the motor vehicle accident). When this was brought to his attention, he was unable to provide a direct response, stating that subsequent radiological imaging showed that the left shoulder was worse than the right."
(b) At page 3 and 4, the Medical Assessor considered the Claimant's fall in April 2020 as
a relevant factor in determining causation, stating that:
"In April 2020, he had a fall, landing onto his left elbow, injuring his left shoulder."
30. The insurer noted that at page 8, the Medical Assessor considered a whole-body bone scan dated 26 November 2018, an MRI of both shoulders dated 29 November 2018, and an X-ray and ultrasound of the left shoulder dated 21 April 2020.
31. At page 10, the insurer reiterated that the Medical Assessor considered the available medical evidence and substantiated his findings, stating that:
"The later development of symptoms involving his left hip and knee approximately four weeks after the motor vehicle accident and left shoulder approximately six weeks after the motor vehicle accident are not causally related. During this period, he consulted his local doctor several times without reporting any other symptoms. Had there been a soft tissue injury to his left shoulder, left hip and left knee, the symptoms would have been present soon afterwards and interefered (sic) with his work activities" (insurers emphasis added)
(g)The insurer said that the Medical Assessor continued to note on page 10 that the claimant's fall was another factor to consider in the process to reach his determination, stating that:
"He subsequently had a fall in around April 2020 sustaining an injury to his left shoulder requiring arthroscopic surgery. I therefore did not consider that there was sufficient evidence to accept causation for the injuries to his left shoulder, left hip and left knee.…I therefore did not consider that there was sufficient evidence to accept causation for the injuries to his left shoulder, left hip and left knee”. (insurers emphasis added)
32. The insurer highlights that the Medical Assessor had considered a body of collective various factors, including the claimant's relevant injuries/conditions sustained independent from the accident, all relevant medical evidence, a lack of ongoing complaints and his clinical judgment.
33. The insurer submits that, in determining causation, the Medical Assessor did not treat the absence of contemporaneous evidence alone as determinative of the question of causation but exercised his clinical judgment to interpret the claimant's alleged injuries on the basis of the body of collective factors noted.
34. The insurer says that in the Claimant's submissions, it is said at paragraph 20 that the MyFamily Health Medical Centre records refer to "shoulder pain" on 14 June 2018 which the claimant alleges "it is unclear as to whether or not that is a reference to both shoulders".
35. The Insurer does not agree with this summation and says that a further review of the clinical records clearly refer to the right shoulder when viewed in context of the immediately preceding consultation.
36. The insurer says that on 4 June 2018, the Claimant's general practitioner, Dr Touma, examined the shoulder and reported:
"Shoulder FROM (sic) with slight pain right side"
37. The insurer says that in another entry on 8 June 2018, Dr Touma referred to "right shoulder pain with large bruising" and upon examination reported:
"Shoulder FROM (sic) with slight pain right side"
38. The insurer says that based on the identical examination, the two entries are submitted to be referring to the same right shoulder injury, and not a left shoulder injury as submitted by the claimant. The insurer says that it remains that the available medical evidence did not demonstrate any evidence of a left shoulder injury over a period of six weeks following the subject accident.
39. The insurer submits that the Medical Assessor has appropriately and correctly determined causation in accordance with the methodology that is required. Accordingly, the insurer says that there is no cause to suspect that the assessment is incorrect in any material respect.
Left Hip and Left Knee
40. The insurer notes that the claimant's submissions refer to the matter of Owen v Motor Accidents Authority and the test of causation employed in relation to the claimant's left hip and left knee.
41. The insurer highlights that the matter of Owen v Motor Accidents Authority is concerned with errors associated with holding contemporaneous documentation decisive on the issue of causation.
42. The insurer refers to the submission of the claimant that:
"if the left hip and left knee was caused by the walking with an altered gait, then that issue should have been considered."
43. The insurer again referred to the matter of Briggs v IAG t/as NRMA Insurance and says that the court determined that a Review Panel or Medical Assessor is open to employing the use of their clinical judgment to rely on the absence of contemporaneous evidence as part of a body of collective factors to make their finding.
44. The insurer highlights that at page 3 of the Medical Assessor’s certificate, the claimant is reported to have responded that his left hip and left knee injuries were attributable to:
"maintaining his leg firmly on the floor of the vehicle".
45. The insurer submits that this reasoning is contradictory to the reason noted in the claimant's submissions, namely that the injuries arise from walking with an altered gait.
46. The insurer submits that the Medical Assessor considered a body of collective factors in his determination of causation, including the issue that was alleged by the claimant to have been neglected. The insurer submits that the Medical Assessor in his certificate determined causation of the left hip and left knee injuries correctly in accordance with the relevant tests as prescribed by the guidelines and by the common law.
Claimant's alleged error: "Assessor failed to engage with the material and incorrectly determined causation"
47. The insurer notes that the claimant submitted that the Medical Assessor had failed to engage in the statutory task to undertake apportionment of whole person impairment following the subject accident and the whole person impairment relating to the fall around April 2020.
48. The insurer submits that there was no objective evidence of the subsequent injury arising from the fall in April 2020 and therefore says that the Medical Assessor was under no obligation to attempt an assessment of the impairment arising from the fall.
49. The insurer says that regulation 6.34 of the Motor Accident Guidelines states that:
"The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored" (insurers emphasis added)
50. The insurer submits that the only objective evidence from the time period of the fall in April 2020 is the report of Dr Mastroianni, Occupational Physician dated 25 March 2020, which had assessed the Claimant prior to the fall.
51. The insurer submits that, as per the Medical Assessor’s obligations under Regulation 6.34 of the guidelines, he was not obligated to undertake any apportionment of the subsequent injury.
52. In conclusions the insurer submits that the claimant has failed to demonstrate how correction of the assessment, as advanced by the claimant, would alter the outcome of Medical Assessor’s certificate.
53. The insurer says that the claimant has merely submitted that there have been errors with the consideration of the medical evidence and assessment of causation, rather than elaborating on the so-called errors and their materially to the certificate.
54. The insurer says that it is evident that the Medical Assessor has fully considered the medical evidence before him in order to form his own determination,
55. With regard to the claimant’s initial submissions in response to the claimant’s application for assessment of whole person impairment (WPI), the insurer highlighted the following;
(a) The available radiological investigations provide significant evidence that the Claimant has suffered from prior cervical and lumbar degenerative disease:
i.X-ray of the cervical spine performed on 8 June 2018 showed degenerative changes in the lower cervical apohyseal joint.
ii.X-ray of the lumbar spine performed on 8 June 2018 showed degenerative change at L5/S1apohypyseal joints.
iii.MRI of the lumbar spine performed on 5 July 2018 showed no disc protrusion. A further MRI performed on 29 November 2018 showed paracentral focal disc protrusion at L4/5.
iv.Bone scan performed on 26 November 2018 showed degenerative arthritis of the cervical and lumbar spine (A5), as well as the right acromioclavicular joint, right sternoclavicular joint and patellofemoral regions of both knees.
(h) There are substantial causation issues regarding the claimant's left shoulder. The insurer disputes that the left shoulder condition was caused by the accident. The insurer says that the claimant suffered an unrelated slip and fall on 19 April 2020. The Claimant underwent surgical rotator cuff repair to the left shoulder at the hands of Associate Professor Mark Haber in May 2020. Professor Haber recorded that the Claimant "slipped on a wet driveway and fell”
(i) An ultrasound of the left shoulder performed on 28 April 2020 indicated a "full thickness tear of the rotator cuff tendons. A large full thickness rotator cuff tear involving supraspinatus tendon was identified measuring 23 mm longitudinal".
56. The insurer says that the claimant’s expert, Dr Mastroianni did not find any evidence of muscle guarding or muscle tenderness, nor did he find any asymmetric loss of range of movement.
57. The Insurer submits that Dr Mastroianni erred in his utilisation of the DRE categories. The insurer says that had he assigned the correct category as prescribed by AMA4 the claimant's total WPI as assessed (15%) would decrease by 5% WPI. Dr Mastroianni did not provide detailed reasons as to why DRE II was chosen. As such, the insurer says that there is no basis for Dr Mastroianni's calculation of a 5% WPI related to the cervical spine.
The medical evidence
58. The personal injury claim form (PICF) signed by the claimant on 11 July 2018 noted his injuries as, mid back, lower back, right shoulder, chest, sternum, right wrist, left hip, left side groin, left knee and psychological injury.
59. The medical certificate of 4 June 2018 attached to the PICF is handwritten and difficult to read but is signed by Dr Touma. This refers to neck pain with multilevel disc bulging, lower back pain multilevel radiculopathy, facet joint arthrosis, right shoulder pain and possibly headaches but it is partially illegible.
60. An MRI of the lumbar spine of 29 November 2018 showed discovertebral changes throughout the lumbar spine with some facet joint arthropathy at the lower to lumbar levels. There was no significant neural impingement and no evidence of an osseous injury.
61. An MRI of 29 November 2018 of both shoulders seemed however only to be a scan of the right shoulder. In the summary conclusion it was said that there was;
•AC joint arthropathy,
•moderate subacromial subdeltoid bursal inflammation with some focal hypo intense bursal changes overlying the supraspinatus – query haemorrhagic bursitis
•probable low-grade partial-thickness bursal surface tears of the anterior mid supraspinatus
•subcutaneous lipoma overlying the deltoid.
62. The conclusion was a mild AC joint arthropathy, subacromial – subdeltoid bursal inflammation and supraspinatus tear of the right shoulder (?).
63. A whole body bone scan with SPECT/CT of the claimant’s cervical and lumbar spines of 26 November 2018 concluded;
•degenerative arthritis in the facet joints at the C2/3, C3/4 and C4/5 levels of the cervical spine.
•discovertebral the generative arthritis at the C5/6 and C6/7 levels and in the thoracic spine at the T5/6 and T8/9 level.
•degenerative arthritis in the left facet joint at the L4/5 level and in the right facet joint at the L5/S1 level of the lumbar spine.
•the uptake at the L3/4 spinous processes was consistent with enthesitis.
64. An MRI of the lumbar spine of 5 July 2018 showed no evidence for neural impingement throughout the lumbar spine. There was also reported to be “No focal disc protrusion. Multilevel minimal disc bulges and low-grade lumbar facet arthrosis”.
65. There is a report of Dr Mastroianni 25 March 2020. The claimant reported that after the collision, airbags were deployed. The claimant had pain in his back. No ambulance was required. His car needed towing.
66. The claimant said that the following day he woke up in pain in his neck and back, the left hip and knee were sore and the right shoulder was bruised. Symptoms persisted and then he had left shoulder pain. He saw Dr Sheridan neurosurgeon for the spinal injury and Dr Dave, orthopaedic specialist, for the shoulder injury. Both doctors recommended injections. The insurer did not agree to accept the injection to the neck but accepted liability for the shoulder injection and the claimant has had a cortisone injection in each shoulder.
67. The claimant said that he still had problems with his neck and shoulders but the left hip and knee were alright.
68. The claimant said that his back is sore all the time. Pain intensity varies. The claimant said that he had back pain some years earlier but had fully recovered. Back movements were three quarters normal .
69. Neck movements were normal in flexion and slightly restricted in extension . Rotation and tilt were restricted bilaterally, left greater than right.
70. Examination of the shoulders revealed normal contours. Over the right anterior shoulder joint there was a palpable lump consistent with light lipoma. The lump was not tender. The shoulders were restricted in movement. Right shoulder movements had 8% upper extremity impairment (UEI) and left shoulder movements 10% UEI.
71. The doctor concluded that the claimant had recovered from soft tissue injury to the left hip and left knee but continued to have symptoms in the spine and shoulders.
72. Dr Mastroianni provided a clinical diagnosis of;
•cervical disc lesion and facet dysfunction
•mechanical lower back problem and lumbar disc lesion
•bilateral shoulder tendinitis and rotator cuff disruption.
73. Dr Mastroianni said that the claimant’s condition was causally related to the accident.
74. An upper extremity impairment of 8% equates to 5% WPI and a 10% left upper extremity impairment equates to 6% WPI – AMA4 , Chapter three, page 43 to 44, figures 38 to 41.
75. The claimant was assessed to be DRE cervical category II. He had localised tenderness and dysmetria. This equates to 5% WPI at the American Medical Association Guides to Impairment (AMA4), Chapter three, Page 110, table 73.
76. With the claimants back, this was assessed as DRE lumbar category I, 5% WPI on AMA 4, Chapter three, page 110, table 72.
77. The total WPI 15%.
78. Clinical records of Dr Touma were produced. Notable points were;
•2 March 2020 – ongoing issues with neck, back improving.
•24 February 2020 – ongoing issues with back and neck since MVA mid-2018.
•17 December 2019 – ongoing neck and back pain affecting him.
•19 July 2019 – had another MVA. Physio,r,v for neck pain.
•13 May 2019 – patient improving with treatment and more back pain and no hand/finger pain, ongoing neck symptoms. Lumbar spine just tight through active range of movement not pain provoking –str sidelying (?) To shoulder girdle.
•29 April 2019 – finger flexion active and passive, third finger, pain four reduced neck range of motion left increased pain in neck extension painful both sides of the neck.
•1 April 2019 – physiotherapy from Mark Rossi – reports return of left hand symptoms and weakness as well as ongoing lumbar spine pain, reports increased pain.
•18 March 2019 – physiotherapy – reports improvement in hand strength and dexterity as well as reduced cervical pain and restriction.
•6 March 2019 – ongoing neck/lower back/shoulders pain/left knee pain. Shoulders pain on off after steroid injection. On examination neck/shoulder/knee no changes from pain. Reason for contact being chronic pain/adjustment disorder.
•15 January 2019 shoulders/neck range of motion.. Left hip labral tear/trochanteric bursitis. Symptomatic, if worse comeback.
•12 December 2018 – ongoing pain left hip and left knee pain affecting him shoulders/neck/lower back no changes.
•30 November 2018 neck MRI neck noted, MRI lower back noted.
•30 November 2018 – MRI both shoulders – right shoulder subacromial? Haemorrhagic stroke partial thickness supraspinatus tear left shoulder. Subacromial/subdeltoid bursitis/full thickness supraspinatus tear.
•19 July 2018 – diagnosis on MC. Neck pain, multiple level bulging, radiculopathy and facet joint arthrosis lower back pain with multiple level disc bulging and facet joint arthrosis. Headache, right/left shoulder pain, ongoing left hip and left knee pain affecting his walking – neck pain with multiple level disc bulging, radiculopathy and facet joint arthrosis, lower back pain with multiple level disc bulging and facet joint arthrosis.
•9 July 2018 – MRI noted and showing C3/4, C4/6 disc bulging, C6/C7 nerve compression, disc bulge at L2/3, L3/for and L4/5, disc bulge with bilateral formal stenosis C5/6, C6/7. On examination back/neck no changes.
•14 June 2018 – back and shoulder pain, headache, wrist better.
•8 June 2018 – head-on collision on Monday, 4 June 2018, a car crossroad and hit his car in area speed 60 KPH.
•5 September 2017 – osteoporosis, high cholesterol.
•21 August 2017 – mid back pain for past week – pain only with movement and bending and cough – pain free with rest and laying down.
79. Report of Professor Haber 28 April 2020. This was a report to Dr Touma.
80. The claimant reported pain following a motor vehicle accident two years earlier.
81. An ultrasound was undertaken in the clinic which demonstrated a large full thickness rotator cuff tear involving the supraspinatus tendon and was identified as measuring 23 mm longitudinal. The subscapularis tendon had 17 mm retracted full thickness tear.
82. Professor Haber said that due to the presence of a full thickness tear on persistent symptoms, he recommended a rotator cuff repair. In this report, Professor Haber did not mention whether the surgery was to the left or right shoulder however that the ultrasound was to the left shoulder and it can be assumed that the report was with respect to the left shoulder.
83. The claimant subsequently had an arthroscopic rotator cuff repair surgery in May 2020. Six weeks post-surgery he was reported to be to be progressing well with minimal pain and moderate recovery of range of motion. On 30 July 2020 he was reported as making an uneventful recovery.
84. Report of Dr Dave of 12 December 2018. Dr Dave said because of the accident the claimant injured both his shoulders, his cervical spine in both his hips and both his knees. His left side was injured more than the right
85. The referral to Dr Dave was only for both shoulders. The claimant described pain antero laterally over both shoulders and worse with overhead lifting. Dr Dave said that an injection of cortisone may give him some relief.
86. On behalf of the insurer, the claimant was examined by Dr Breit. In his report of 24 June 2021, he noted that the investigations showed significant pre-existing disease with bilateral impingement anatomy, spurring with rotator cuff tendinosis but on the left side a nearly full thickness tear of the supraspinatus that became a complete tear with his subsequent fall. That fall occurred on 19 April 2020.
87. Dr Breit said that there was nothing to indicate that he had an overt injury to the left shoulder and the most likely scenario was that of referred pain from the neck. He had a pre-existing almost full thickness rotator cuff tear that appears to have become a complete tear after this fall. He has then had surgery with residual restricted movement so that, in the opinion of Dr Breit, none of the issues with the left shoulder were related to this accident.
88. With regard to assessment of the claimant’s WPI, Dr Breit reported specifically, Chapter 3 has been used and for the lumbosacral spine, Paragraph 3.3g, Paragraph 3.3h for the cervicothoracic spine and Paragraph 3.3i for the thoracolumbar spine.
89. Dr Breit said that both the lumbosacral and cervicothoracic spine had non-symmetrical loss of movement. Despite the inconsistency in the range of neck movement, he considered that to be the case because of the muscular tightness and that even with that inconsistency, the range was not symmetrical. Therefore, Dr Breit said that the claimant had to be assessed under DRE Category II for both areas. The cervicothoracic spine was associated with 5%WPI and the lumbosacral spine 5%WPI. The thoracolumbar spine was assessed under DRE Category I, no spasm and movements were symmetrical. Dr Breit said that he had already indicated the left shoulder was not related to the accident, the right side was assessed in the AMA Guides, Chapter 2 and AMA Guides, Paragraph 3.1j, which relate to restricted movement. Dr Breit said that therein lay some difficulty. He said that internal rotation assessment should be made on the basis of 80° and he was, he said, with some trepidation, willing to accept the other movements which resulted in 10% right upper extremity impairment. That converted to 6%WPI. Utilising the Combined Table, Dr Breit said that was 15% WPI because there was no evidence of a deductible quantum.
90. Within the insurers internal review document, reference is made to a report of Dr Wallace of 14 July 2020. The Panel requested this from the insurer but no report was produced. The Panel does not know if the claimant attended Dr Wallace for examination. Dr Mastorianni referred to an opinion of Medical Assessor Kenna but his certificate was not available to the Panel. The reports of Dr Breit were not produced by the Panel and had to be requested. There was also a reference to a report of Dr Derek Lee of 14 July 2020. This was also requested by the Panel but no report was produced by the insurer.
91. The claimant was assessed by Assessor Woo on 2 September 2019 with a certificate provided on 10 September 2019. This was to determine minor and non-minor injuries. The lumbar spine and left shoulder were found to be non- minor injuries.
92. It was reported that the claimant attended his GP the day following the accident. The GP noticed bruising over the right chest corresponding to a seatbelt area. He was referred for investigations and physiotherapy. The claimant was referred to Dr Sheridan, neurosurgeon, who referred him for injection to the cervical spine but this was declined by the insurer. Assessor Woo recorded that the claimant was also referred to Dr Dave for shoulder injuries and received ultrasound guided injection to both shoulders. The claimant said that the injections only temporarily improved his symptoms for about two days.
93. With regard to the lower back pain this was said to be most problematic. The pain radiated down the left buttock/hip region. The pain level varied from 5 to 10 2/10 on the visual analogue (VAS) scale depending on physical activities.
94. Neck pain and stiffness was dealt with as being associated with tingling in both hands. The pain level had increased to 6/10. With right shoulder pain and stiffness the pain could be 10/10 with some of the movements.
95. Left hip pain was over the buttock with pain at a level of 5 to 6/10. Left knee pain was anterior in location and at a level of 5 to 6/10.
96. With left shoulder pain and stiffness, the pain had reduced to a level of 4- 5/10.
97. Reference was made to the GP clinical notes as at 9 April 2019. Comment was made of an entry on 8 June 2018 of headache, neck pain, right shoulder pain with large bruising, right wrist pain and swelling, ongoing mid and lower back pain.
98. There was an entry on 12 June 2018 of back and shoulder pain, headache, wrist better.
99. Entry on 2 July 2018 of pain on chest and back worse with cough and sneezing, neck pain radiating both arms and pins and needles, no weakness, examination neck/back/knee no changes.
100. An entry on 19 July 2018 – neck pain with multiple disc bulging, radiculopathy and facet joint arthrosis, lower back pain with multiple level disc bulging and facet joint arthrosis, headache, right/left shoulder pain, ongoing left hip and left knee pain affecting his walking. Diagnostic imaging requested – MRI right/left shoulder.
101. The Assessor said that the clinical notes indicated that the claimant had an onset of symptoms in his neck, back, both shoulders, left hip and left knee within six weeks following the accident.
102. The diagnosis was;
•lumbar spine injury – L4/5 focal disc protrusion as shown on MRI
•left shoulder injury – rotator cuff tear – full thickness tear of supraspinatus tendon with retraction as shown on MRI
•Right shoulder soft tissue injury – probable low-grade partial thickness bursal surface tears of the supraspinatus – most likely related to age-related degeneration from wear and tear rather than a frank injury
•left hip – soft tissue injury. The sites of symptoms were said to be actually around the muscles of the left buttock and greater trochanter of the proximal femur rather than the articulate joint itself. The MRI findings of labral tear with an 18 mm Perri labral cyst clearly indicated age-related degenerative changes rath than a frank injury.
•Left knee – soft tissue injury. MRI shows patella-femoral osteoarthritis and degenerative changes in the medial meniscus and partial thickness chondral loss of the medial femoral condyle. The full thickness chondral loss was said to be consistent with degenerative changes likely present prior to the accident with regard to his age.
103. As to causation, the Assessor said the force from the head-on collision causing deployment of airbags was sufficient to result in injuries to the lumbar spine, left and right shoulders, left hip and left knee.
104. Medical Assessor Assem noted that Dr Mastroianni obtained a much better range of motion of his shoulder compared to the restrictions observed by Medical Assessor at the time of his assessment. He said that as it was prior to the surgical procedure to his left shoulder, it is probably a more accurate reflection of the underlying impairment as a consequence of the accident.
105. As to causation, the Medical Assessor said that the later development of symptoms involving his left hip and knee approximately four weeks after the motor vehicle accident and left shoulder approximately six weeks after the motor vehicle accident were not causally related. He said that during this period the claimant consulted his doctor several times without reporting any other symptoms. The Assessor referred to Bugat v Fox but no more than acknowledging that case. The Assessor said that had there been a soft tissue injury to his left shoulder, left hip and left knee, and the symptoms would have been present soon afterwards and interfered with his work activities.
106. The Medical Assessor said that the claimant subsequently had a fall in around April 2020, sustaining an injury to his left shoulder requiring arthroscopic surgery. He said on this basis he did not consider that there was sufficient evidence to accept causation for the injuries to his left shoulder, left hip and left knee.
107. The Medical Assessor found the following injuries were caused by the accident;
•cervical spine – soft tissue injury
•Right shoulder – soft tissue injury
•lumbar spine – soft tissue injury
108. the Medical Assessor found the following injuries were not caused by the accident;
•left shoulder – soft tissue injury
•left hip – soft tissue injury
•left knee – soft tissue injury
109. As to WPI;
•cervical spine was DRE category I at 0% WPI – AMA 4,table 73 page 3/110
•lumbar spine was DRE lumbosacral category I at 0% – AMA 4, table 72, Page 110
•Right shoulder WPI 9%.
110. With the right shoulder, the Medical Assessor accepted a soft tissue injury to the right shoulder causing a moderate restriction in shoulder motion. He said that according to the pie charts of upper extremity impairment, the claimant had 15% RUEI (AMA 4, pie chart38, 3/43, pie chart 41, 3/44, pie chart 44, 3/45) which all equated to 9% WPI on AMA 4, table 4, 3/20.
111. The Medical Assessor said that Dr Mastroianni who examined the claimant just before his fall on 25 March 2020, obtained a mild to moderate restriction in shoulder motion consistent with the pathology identified on radiological imaging, giving 5% WPI. The Medical Assessor said that it is possible that his right shoulder symptoms had worsened after is left shoulder injury however, his movements were consistent on repeated testing (MAA PIC’s, clause 1.21)
Panel examination
112. The claimant was examined on behalf of the Panel by Medical Assessor Stubbs and Medical Assessor Dixon. Their report follows.
History and clinical examination: Mr Natali was seen by Assessors Dixon and Stubbs at the Personal Injury Commission (PIC) examination suites. Mr Natali was driven to the appointment by his wife.
History:
Mr Natali is a 59 year old dental technician of 30 years’ experience. He ran a solo practice with the assistance of his wife who acts as the practice manager. He reported that he was in good health and did not require any regular medications. Mr Natali had an episode of low back pain in 2016 when he saw his GP Dr Touma. He said that the pain had settled though it was in the same site and same character as his present pain. He worked about 30 hours a week. The couple lives in a split-level four-bedroom home. Mr Natali did the garden and yard work and his wife did the inside work. His hobby is fishing. The house had a pool. He was not enrolled in any gymnasium or otherwise doing organised physical activity pre and post-accident.
His motor vehicle accident occurred on 4 June 2018. He was driving and Isuzu four-wheel-drive and had a head-on collision with a small Mazda sedan. He was wearing a seatbelt and the airbags deployed. He was able to get out of the vehicle himself and a friend drove him home. The Isuzu has been replaced with a similar type of vehicle. Although shaken by the accident he did not experience immediate pain or discomfort.
On the morning following the accident he woke with neck, shoulder, and back pain. The neck pain started in the nape and spread to the base of the skull and into the trapezial region is on both sides. There was soreness in both shoulders but no pain distally in the upper limbs. The neck would be stiff and uncomfortable on arising and with constant posture but eased by heat and movement. The low back pain was in the small of the back spreading to both sides and into the right buttock the pain did not spread beyond this level. Like the pain the stiffness on arising was eased by heat moving around and exacerbated with constant posture. Neither the neck or back pain is increased by coughing or sneezing. There was sharp pain in the points of both shoulder and he had difficulty with overhead activity above eye height. The pain was worse on the right-hand side and would become very troublesome at night if he lay on his right side.
He saw his general practitioner on the day after the accident. There was a large bruise over the right shoulder and the general practitioner noted right wrist pain as well. He was sent for x-rays including x-rays of the cervical and lumbar spine on 8 June 2018, MRI studies of the cervical and lumbar spine occurred on 5 July 2018. A regional bone scan of 26 November 2018. Ultrasounds were performed of both shoulders and cortisone injections were given. Later MRI examination was performed of both shoulders. He was sent to see Dr Chandra Dave an orthopaedic shoulder surgeon who suggested conservative treatment. Mr Natali commented that he was told the left shoulder had greater problems than the right but he said that it was the less painful of the two.
Mr Natal it was able to continue at work, but his symptoms persisted in all regions, and he struggled to manage his yard.
In April 2020 Mr Natali fell very heavily on to his left side. There was immediate and unbearable shoulder pain, this then settled down to a lower intensity constant pain aggravated by movement which was restricted and weak. He saw Dr Touma again who wanted to send him back to see Dr Dave. However, Mrs Natali was not happy with Dr Dave and she suggested he see Dr Haber, also a shoulder surgeon, based on social media rating. Further investigation revealed a full thickness rotator cuff tear of the left shoulder and surgery was performed at the Macquarie Private Hospital. He underwent a period of immobilisation in a sling followed by physiotherapy. Movement has improved but not what it was before the fall and there is continuing night pain in the point of shoulders, intermittent on the left side but constant in the right shoulder and much aggravated by lying on the shoulder at night.
Presently he is not having any active management. He takes a mixture of simple analgesics and anti-inflammatory agents as required. He continues working but still struggles with use of both arms at or above shoulder level. A recent hospitalisation with pneumonia is unrelated to the motor vehicle accident. He is growing increasingly frustrated with time spent pursuing his claims particularly the many independent medical examinations that he has had.
Clinical examination:
Mr Natali was wearing a long-sleeved button up shirt outside his jeans. He was asked to undress to the waist. He carefully removed the shirt and T-shirt by bending forward and keeping his arms below shoulder level. When he dressed at the end of the examination, he made better use of both arms.
He stands 177 cm tall and weighs 120 kg. He can rise from a chair without assistance and can tip toe and heel toe walk and squat to 90°.
Cervical spine-upper limbs:
He has a comfortable neutral neck posture and could move his neck around freely giving his history. He has tenderness in the mid-low cervical region extending to the occiput was noted the tenderness does not extend much below the upper borders of the scapular. There was no guarding or spasm noted. There is a subcutaneous lipoma at the base of the neck on the right. Compression through the top of the head did not increase neck pain nor did the Valsalva manoeuvre. There was some tenderness on the right trapezial region side bending to the right. Sperling’s sign is negative. Lateral flexion of the neck is combined with extension) elicits no painful response, brachial stretch test is negative. There are no positive nerve root traction signs. Total range of voluntary active motion is half normal in all directions and is symmetrical. The better observed range of motion in formal examination was pointed out and explained as tightness and worries about aggravation from the clinical examination. Though there is general trapezial tenderness there is no spasm or guarding. The tingling in both hands does not follow any dermatomal pattern – it does not fit the definition of non-confirmed radicular symptoms.
Girth of the upper limbs is arms 37 right equals left and forearms 33 cm right equals left. With the elbows by the side there is 5/5 strength of elbow flexion and extension wrist flexion extension and grip.
There is weakness of both shoulders, right worse than left at clinical grade 4/5 and wasting of the supraspinatus and infraspinatus fossa, 2+ on the right 1+ on the left. There is also deltoid wasting, right worse than left. There is a positive impingement sign, right equals left. The lift off test is negative, right equals left.
Biceps jerk, triceps jerk and supinator jerk are 1+ right equals left. There is no sensory disturbance. There is no Tinel’s sign and the either elbow or positive carpal tunnel compression test in either wrist (there is no carpal or cubital tunnel compression).
Range of motion in wrists, elbows, and hands is normal.
The following table includes repeated goniometer testing of range of motion both shoulders. There is point tenderness over the right acromioclavicular joint which is prominent and some tenderness in the anterior subdeltoid bursa right equals left and along the bicipital groove right equals left
| Right | Left | |
| Flexion figure 38 | 70 7% UEI | 100 5% |
| Extension | 40 1% | 50 0% |
| Abduction figure 41 | 60 6% | 90 4% |
| Adduction | 30 1% | 40 0% |
| External rotation figure 44 | 60 0% | 60 0% |
| Internal rotation | 40 3% | 50 2% |
*Best-of-three measurements. Flexion and abduction vary by 20°, internal rotation by 10° the rest are quite consistent. Combined values are right shoulder 18% upper extremity impairment, left shoulder 11% upper extremity impairment table 3 converts right shoulder impairment to 11% WPI
Conclusion: there are no abnormal neurological findings. The neck is limited in movement but symmetrically so and though there is tenderness there is no spasm or guarding. Nerve root tension signs are negative. The cervical spine is DRE 1.
There is significant bilateral rotator cuff disease. The local tenderness and the history of bruising over the point of the right shoulder noted following the accident also points to right acromioclavicular joint injury.
Thoracic-Lumbar spine and lower limbs:
In the lumbar spine there is mild midline tenderness without spread. There is no spasm or guarding, posture is normal but all lumbar and thoracic movement is limited to half or less normal range imitation, this is symmetrical and there is no spasm or guarding.
Girth of the lower extremities is right thigh 52 cm, left thigh 51 cm, right calf 41 cm, left calf 42 cm. Knee and ankle jerks are brisk and symmetrical. Clinical muscle grade both against gravity and manual testing is 5/5. Sensation is normal. Hips and knees moved moderately well for age. There is some mild postural Plano-valgus which corrects when he stands on tiptoes. Straight leg raising is only 30° lying supine but full knee extension be obtained when sitting slumped forwards on the edge of the couch. Knees, hips, and ankles are normal.
Conclusion: apart from the low voluntary range of movement in the lumbar and thoracic spine the clinical examination is normal. Specifically there is no asymmetry guarding or spasm. Neurological examination is normal. The discrepancy between straight leg raising and full knee extension when sitting suggests hamstring tightness rather than nerve root tension. The lumbar spine is DRE 1.
There are no injuries to the lower limbs from the motor vehicle accident.
Imaging: –
The following imaging was reviewed –
MRI cervical spine, MRI lumbar spine, SuperScan Imaging 5 July 2018.
There is widespread cervical spondylosis at all levels. There are dark vertebral discs from nuclear desiccation with accompanying loss of intervertebral disc height and posterior annular bulging. The changes are most pronounced at C5/6 and C6/7 where there accompanying marginal osteophytes and in the oblique views changes in the facet joints and narrowing of intervertebral canal most pronounced at C5/6. In general, the cervical canal comfortably accommodates the spinal cord. There is no evidence of cord compression or fluid signal from within the spinal cord. In C5 and C6 intervertebral bodies there are Modic type II changes posteriorly most pronounced about the disc space. Modic type II changes represent fatty infiltration and are a common and probably transient features of normal spinal ageing.
Mr Natali is age-related degenerative changes in the cervical spine. There is no sign of any acute musculoskeletal injury or loss of stability. Though there is some degenerative foraminal stenosis the nerve roots do not appear to be compressed. This is consistent with the absence of nerve root traction signs clinical examination.
Lumbar spine: the lumbar spine shows similar ageing changes to the cervical spine though, unusually, these are less pronounced in the lumbar spine than in the cervical spine. Disc desiccation and disc narrowing is most pronounced at L3/4 and L4/5 with accompanying early facet arthrosis and mild degenerative disc bulging. Modic type III changes indicating marrow fibrosis are present at L3/4, again these are features of spinal ageing and probably persistent. The MRI is unremarkable his age as is the clinical examination
Whole body bone scan: Southwest Nuclear Imaging 26 November 2018.
There are scattered mild increases in isotope uptake in the cervical and lumbar spines and these are more reactive at the less “aged” levels for instance activity at C2/3 and L5/S1. There is increased isotope uptake at both the right acromioclavicular joint (ACJ) and the right sternoclavicular joint (SCJ) and in the patellofemoral joint in both knees. The left ACJ and SCJ show a little increased activity. Overall the bone scan is consistent with the MRI studies of the lumbar and cervical spine. The right ACJ/SCJ shows more activity than the left consistent with the clinical findings of localised tenderness on the right but not the left during the clinical examination
Ray Scan Imaging Liverpool MRI both shoulders 28 November 2018.
Both shoulders are similar. Joint fluid is present in the subacromial /subdeltoid bursa. There is irregularity of the supraspinatus, and infraspinatus tendon, particularly of the bursal side, representing at least partial tears that are very probably pinhole full thickness tears given the presence of joint fluid in the subdeltoid bursa on the right. There is no obvious full thickness tear in the right shoulder but there is an approximately 1 cm full thickness tear of the anterior supraspinatus of the left shoulder. This tear appears to be long standing as the margins are smooth rather than ragged. The acromio-clavicular ligaments are ossified and thickened in both shoulders. There is evidence long-standing impingement and some sclerosis of each greater tuberosity.
The shoulders differ firstly in that the subcutaneous lipoma is visualised in the right shoulder and secondly that the degree of acromioclavicular arthritis is noticeably different. The acromioclavicular joint is arthritic on the right with loss of joint space and enlargement of both the acromion and the outer clavicle. The bone here shows a strong fluid signal from within the marrow on both sides of the joint. On the left-hand side there is much less bony hypertrophy but there is a similar loss of joint space. Marrow reaction is confined to the outer clavicle and is characterised by series of small bright foci suggestive of sub chondral cysts or local areas of mucoid degeneration. In the left shoulder. The findings are consistent long-standing rotator cuff degeneration in both shoulders. The comment of the initial treating surgeon, Dr Dave, is understandable – the left shoulder shows more advanced rotator cuff degeneration than the right lower the right shoulder is the one the most symptoms.
Comments:
The MRIs of the cervical and lumbar spine are very much what one would expect for a male in the mid-50s. There are age-related changes but there are no features on either of acute bony or ligamentous injury. Given the absence of any record of neurological injury at any level the treatment is conservative and the prognosis is good. There is no evidence of more than transient soft tissue strain of the motor vehicle accident but the spine is deconditioned. Both the cervical and lumbar spine are DRE 1
The right shoulder has established acromioclavicular and sternoclavicular arthritis clinically which is confirmed on MRI and bone scan. Bruising over the anterior shoulder right acromioclavicular joint is recorded immediately post injury. Pitching forward against the seatbelt harness is very plausible mechanism of injury. Symptoms in the right shoulder have been consistent since the accident in particular the principle complaint of wakening at night after rolling onto the right side placing pressure over the right acromioclavicular joint. Aggravation of the pre-existing ACJ arthritis is caused by the motor vehicle accident.
The remaining changes in the shoulder are long-standing and degenerative character and may be asymptomatic in a person who has low demands for overhead use. The motor vehicle accident certainly did not cause the caracoacromial hypertrophy or the signs of long-standing impingement.
In the left shoulder the acromioclavicular joint (ACJ)shows changes on the MRI but clinically there is no active ACJ arthritis. This is supported by the inactivity in the regional bone scan. There is degenerative pattern full thickness tear but this is small, the rotator cuff is still well-balanced and there is an absence of a prior complaint. These are also findings that may be asymptomatic in the low demand person. There is no direct evidence confirming injury in a motor vehicle accident unlike the bruising seen in the right shoulder. There is also no reason to believe that there are any indirect force applied across the left shoulder since the left arm is unconstrained.
Upper limb injuries do occur because of the airbag deployment. However, the injuries to the hand and forearms are probably from contact with the airbag module cover. Proximal upper limb injuries are not recorded from airbags in the literature probably because elbow and shoulder joints act as energy absorption mechanisms.
There was a major increase in symptomatology from the fall in 2020. This led to surgery. There is however no connection between the motor vehicle accident and the subsequent surgery. There are already degenerative changes, there is already a full thickness cuff tear, and the fall is a fully sufficient explanation why the surgery was required. If the motor vehicle accident had not occurred then the overwhelming probability is that the fall Mr Natali suffered would still have caused an extension of the degenerative rotator cuff tear and led to surgery. The MVA plays no causal role in the subsequent surgery.
| Right | Left | ||
| Flexion | Figure 38 UEI | 70° UEI 7% | 100° UEI 5% |
| Extension | 40° UEI 1% | 50° UEI 0% | |
| Abduction | Figure 41 | 60° UEI 6% | 90° UEI 4% |
| Adduction | 30° UEI 1% | 40° UEI 0% | |
| External rotation | Figure 44 | 60° UEI 0% | 60° UEI 0% |
| Internal rotation | 40° UEI 3% | 50° UEI 2% |
Right equals 18% UEI left 11% UEI. This gives 11% WPI for the right shoulder. Left shoulder is not normal and cannot be deducted but the left shoulder is not injured by the MVA and cannot be added either.
Summarising, the Panel concludes the following assessments;
·cervical spine soft tissue injury caused by motor vehicle accident 0% WPI.
·Lumbar spine soft tissue injury caused by motor vehicle accident 0% WPI.
·Right shoulder aggravated acromioclavicular arthritis caused by motor vehicle accident 11% WPI.
·Left shoulder rotator cuff disease not caused by accident.
| Body Part or System | AMA 4 Guides/ Guidelines References {chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | ||||||
| 1 | Cervical spine | Table 70 Page 108 | Yes | 0% | 0% | 0% | |||||
| 2 | Lumbar spine |
| Yes | 0% | 0% | 0% | |||||
| 3 | R) Shoulder | AMA4 figures 39, 41 and 44 | Yes | 11% | 0% | 11% |
Total WPI 11%
113. The Panel adopts the examination report and findings of Medical Assessor Stubbs and Medical Assessor Dixon.
Causation
The Motor Accident Guidelines
114. The Motor Accident Guidelines identifies the test for causation at clauses 6.6 and 6.7.[1]
The authorities
115. In Ackling v QBE Insurance (Aust) Ltd, [2] Johnson J indicated the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one.” His Honour also observed that when undertaking the task of assessing causation, a review panel will derive practical assistance from the Guidelines.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
116. In Owen v Motor Accidents Authority (NSW,)[4] Campbell J adopted the Justice Johnson’s approach with a caveat touching upon the CLA:
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Medical Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)).”[5]
The Civil Liability Act (the CLA)
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
117. As mandated by Justice Campbell in Owen, section 5D of the CLA needs to also be considered when assessing causation.
118. Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
119. There are two elements to address when assessing causation under s 5D(1):
- “factual causation”;[6] and
- “scope of liability”.[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing “factual causation” and “scope of liability” involves the making of value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”.
The Medical Assessor found the following injuries were caused by the accident;
a.cervical spine- soft tissue injury
b.Right shoulder – soft tissue injury
c.lumbar spine – soft tissue injury.
The Medical Assessor however found that the following injuries were not caused by the accident;
a.left shoulder – soft tissue injury
b.left hip – soft tissue injury
c.left knee – soft tissue injury.
With the claimants left hip and left knee injuries, the claimant submits that these disabilities were caused by walking with an altered gait following the accident.. According to the Medical Assessor however the claimant said that his left hip and left knee injuries were attributable to maintaining his leg firmly on the floor of his car. There is a contradiction here about the cause of the injuries.
When the claimant first attended Dr Touma, his general practitioner (GP), on 4 June 2018 the clinical notes only refer to complaints of neck pain not back pain and right shoulder pain.
The claimant reported to Dr Mastroianni that the following day after the accident, he woke up with pain in his neck and back and that his left hip and knee was sore in the right shoulder was bruised. Symptoms persisted and subsequently he also had left shoulder pain. The claimant informed Dr Mastroianni that his left hip and knee were all right.
The claimant did not complain of injuries to his left hip and right knee to his GP until 2 July 2018. the Medical Assessor l found both hips and knees normal for age with no evidence of injury
The claimant suffered a head on collision. It would not be unreasonable for him to suffer injuries to his left hip and left knee in those circumstances. However, on examination the claimant made no complaint about his left hip and left knee and appeared untroubled. Whilst the claimant may have injured these areas, he has recovered and there is no assessable impairment.
Regarding injury to the claimants left shoulder, complaints of pain in this area were not made immediately after the accident. The dynamics of the injury arising from a head on collision and the involvement of a restraining seatbelt are such that a right shoulder injury might be anticipated. The accident occurred on 4 June 2018. The claimant suffered a fall on 19 April 2020. He fell on his left side. The claimant was then noted to have a full thickness tear of his left shoulder. Dr Breit in his report of 24 June 2021, said that there was nothing to indicate that the claimant had an overt injury to his left shoulder and that it is most likely that he was suffering, from his fall, referred pain from the neck.
The Panel is not of the finding that the accident which occurred on 4 June 2018 caused or contributed to a worsening of the impairment to the claimants left shoulder. The panel can find no reporting of any left shoulder symptoms until 19 July 2018, six weeks after the accident. The fall on 19 April 2020 onto his left side was significant. The Panel is not of the finding that any injury occurred to the claimants left shoulder in accident.
The claimant did make complaints immediately after the accident about neck pain low back pain and right shoulder pain. The Panel accepts that in a head-on collision, firstly these body areas would be susceptible to injury. Secondly, with complaint being made to the claimant’s GP immediately after the accident about injury to these areas, that injury and pain arising out of the accident is reasonable and the Panel accepts this.
The Panel finds that directly arising out of the accident on 4 June 2018, the claimant has suffered the following injuries;
a.cervical spine soft tissue injury
b.lumbar spine soft tissue injury
c.right shoulder aggravated acromioclavicular arthritis caused by the accident.
The Panel finds that the following injuries were not caused by the accident;
a.left shoulder rotator cuff disease and tear.
The Panel finds that as a result of the accident the claimant suffered injury to his left knee and left hip however, these injuries have resolved.
The Panel finds that injuries suffered by the claimant and arising out of the accident give rise to a whole person impairment of 12%.
Determination
The Panel finds that directly arising out of the accident on 4 June 2018, the claimant has suffered the following injuries;
a.cervical spine soft tissue injury
b.lumbar spine soft tissue injury
c.right shoulder aggravated acromioclavicular arthritis caused by the accident.
The Panel finds that the following injuries were not caused by the accident;
a.left shoulder rotator cuff disease and tear.
The Panel finds that as a result of the accident the claimant suffered injury to his left knee and left hip however, these injuries have resolved.
Injuries suffered by the claimant and arising out of the accident give rise to a whole person impairment of 11%.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
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