Newman v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Newman v AAI Limited t/as GIO [2022] NSWPICMR 42
CLAIMANT:	Florence Enriquez Newman
INSURER:	AAI Limited t/as GIO
MERIT REVIEWER:	Terence O'Riain
DATE OF DECISION:	22 July 2022
CATCHWORDS:	MOTOR ACCIDENTS- Dispute about the amount of weekly payments of statutory benefits payable under section 3.8, Division 3.3, Part 3 of the Motor Accident Injuries Act 2017 (2017 Act) after the second entitlement period (after 78 weeks); insurer argues this claimant’s earning capacity dispute constitutes a medical assessment matter under Schedule 2 clause 2(d) of the 2017 Act and the Personal Injury Commission (Commission) may not determine the dispute as a merit review matter; “impairment of earning capacity” as a medical dispute is found in Part 4 of the 2017 Act; see for example sections 4.5(1)(a), 4.6(1)(a), 4.6(3), 4.8 & 4.9(1)(a); Part 4 addresses damages not statutory benefits; right shoulder condition complained of 4 months post–accident; General Practitioner supports accident causing claimant’s loss of earning capacity; conflicting causation opinions in medical assessments on treatment and minor injury status; medical assessments not binding on causation; conflicting claimant accounts of accident mechanism and symptom onset in right shoulder; Assessors relying on uneducated and mentally ill claimant to provide account of accident mechanism; right shoulder asymptomatic pre–accident; insurer preferred view that psychological condition related only to right shoulder; not accident related; 3 member Medical Review Panel (Panel) questioned claimant on accident mechanism via video; Panel made findings on credit; Panel found right shoulder not related to accident; but neck condition related and non–minor; Medical Assessor found accident primarily caused non-minor psychological condition and secondarily related to accepted neck and disputed right shoulder conditions; Held — the Commission can determine this dispute about earning capacity as a merit review matter under Schedule 2(1)(a) of the 2017 Act; reviewable decision set aside and remitted to insurer to consider; correct and preferable conclusion claimant’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury.
DETERMINATIONS MADE:	Certificate Issued under section 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act, and is therefore a merit review matter *under Schedule 2(1)(a) of the Motor Accidents Injuries Act 2017.* The reviewable decision dated 15 October 2022 is set aside and remitted to the insurer for reconsideration in accordance with the directions below: 1. Ms Newman on consideration of her treating general practitioner certificates supporting her loss has suffered a loss of earning capacity as a result of her injuries sustained in the subject motor accident. 2. I find that the correct and preferable conclusion is that Ms Newman’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury. 3. This decision is to have effect from 8 December 2020.

Background and dispute

History

Ms Newman was a passenger in a motor vehicle, and her friend was driving her to see her general practitioner (GP) for a check-up at around 1:00 pm on 24 January 2018, when the insured driver’s car struck their car on the left-hand side at a right angle.
Ms Newman says she was scared and shaking with pain all over her body. She got out of the driver’s door and could mobilise. No ambulance was called, and the car was drivable. Her friend continued the journey to the doctor where she told the doctor what had happened.
Ms Newman submitted an Application for Personal Injury Benefits claim form dated
16 February 2018 where Ms Newman reported she was shocked with pain on the left side of her arm, shoulder and the back of her neck. In that form she also reported that Merville Express employed her as a casual cleaner earning $700 weekly and that she was on Newstart. The insurer commenced to pay her benefits.

The decision under review

The insurer has made a number of decisions regarding the claimant’s entitlements to benefits, the subject of this application originally being the internal review decision made on 29 December 2020.
The insurer’s letter dated 13 October 2020[1] advised that weekly benefits would not be paid for any period after 8 December 2020. The insurer determined that any incapacity to work related to the right shoulder injury, which was not causally related to the accident. Therefore, the injuries sustained in the subject accident had not impaired her earning capacity.
[1] R29.
The insured conducted an internal review of the adverse earning capacity decision dated 13 October 2020. A Certificate of Determination – Internal Review dated
29 December 2020 affirmed the 13 October 2020 decision.
The insurer relied on the Medical Assessment Certificate of Assessor Wijetunga[2] who determined the tears in the right shoulder could not have been caused in the subject motor accident, because of the Medical Assessor’s opinion about the biomechanics of the accident and the lack of early complaints about that body part.
[2] Medical Assessment Certificate from Assessor Nel Wijetunga– minor injury (physical) dated 26 June 2019; A6-5.
The insurer’s decision was also based on Dr Melissa Barrett’s report dated
[3] R26.
17 September 2020[3] which opined that Ms Newman’s secondary psychological condition, which is also causing loss of earning capacity, was solely related to her right shoulder condition, which Dr Barrett accepted from the insurer was not due to the accident. The report also opined Ms Newman suffered an exacerbation of her pre-accident persistent depressive disorder as a result of the right shoulder injury.
On 5 October 2021 Ms Newman’s lawyers requested a further internal review for the insurer to revise the liability decision in the earlier Earning Capacity Assessment decision regarding Ms Newman’s eligibility for payments for her pre-accident weekly wages, in consideration of cl 4.42 of the Motor Accident Guidelines NSW (version 7) as new information relevant to the previous liability decision.
Assessor Paisley certificate stated he had re-examined Ms Newman’s psychological condition on the insurer’s application and found that the psychological condition is related to various accident related causes including primary psychological impacts and was not just reactive to the disputed right shoulder injury.
Medical Assessor Paisley’s certificate and reasons dated 20 August 2021[4] opined that Ms Newman’s psychological condition was non-minor, and in respect of causation, primarily due to the impact of the motor accident and a secondary condition related to her cervical and right shoulder conditions.
[4] AD4-Certificate of Shannon Paisley (Psych) 19.8.2021.
The insurer applied to have Assessor Paisley’s re-assess Ms Newman’s psychological condition. Assessor Paisley found that the psychological condition is related to various accident-related causes, including primary psychological impacts, and was not just reactive to the disputed right shoulder injury.
The insurer’s letter dated 6 September 2021 advised that the insurer maintained their previous denial of entitlement to weekly benefits. The insurer relied on Ms Newman’s incapacity to work being related to the right shoulder injury—which the insurer considers was not caused by the accident.
The insurer earning capacity decision in the liability decision dated 6 September 2021 was confirmed in the internal review certificate (dated 15 October 2021[5]) on the basis that although Ms Newman has suffered a total loss of earning capacity from her secondary psychological condition, it is only due to her right shoulder injuries, which the insurer has decided is not attributable to the motor accident that happened on 24 January 2018.
[5] AD3.
General practitioner Dr Maher Milad’s certificate of capacity/certificate of fitness dated 9 September 2021 provided diagnoses including right shoulder injuries, severe psychological injuries and neck strain. Dr Milad certified her unfit for work from
9 September 2021 until 9 October 2021commenting:
“Florence is not fit for work since the accident on 24/1/2018 bec. of Rt Shoulder injury and as well because of severe Psychological stress and injuries.”
The insurer accepts it is arguable that whilst Ms Newman’s persistent depressive disorder was initially caused by more than the right shoulder, the insurer relies on
Dr Barrett’s comment that the right shoulder condition was the sole source of
[6] AD3 page 9.
Ms Newman’s psychological condition.[6]
There is medical evidence from Ms Newman’s GP and various specialists that supports Ms Newman’s contention that the motor accident caused the shoulder condition and the psychological conditions with the associated disability.
Drs Bodel[7] and Wijetunga both examined Ms Newman’s right shoulder condition for the Dispute Resolution Service (DRS).
[7] Medical Assessment Certificate from Assessor James Bodel– treatment (physical) dated 29 December 2020; A9-8.
The Assessors’ opinions on causation are split, and the insurer relies on Medical Assessor Wijetunga’s decision stating that the right shoulder condition is not accident related, while Assessor Bodel’s later certificate supports the accident nexus.
Assessor Bodel notes:
“There is no history of any other accident or injury and no other event that could have led to the pathology in the region of the right shoulder which is clearly identified on the MRI scan. There is also no history of any prior problems with either shoulder at the time of the motor vehicle accident.”
The insurer applied for a Medical Review Panel to replace Medical Assessor Bodel’s findings.
That application had not progressed due to the covid 19 related delays, but recently the review was completed and provided for consideration.[8] This will be discussed below.
[8] AD15-2022.04.25 - Review Panel Certificate.
The insurer says the dispute is limited to a medical assessment under Schedule 2(2)(d) of:
“the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident.”
I will deal with that assertion below.
Having conducted teleconferences with the parties and considered both s 52 of the Personal Injury Commission Act 2020(the 2020 Act) and Procedural Direction PIC2 I have determined the matter can be determined on the papers.
I am satisfied sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing. The parties agree to me determining the dispute on the papers.

Ms Newman’s pre-accident history

Assessor Paisley recorded the following history when examining Ms Newman.[9]
[9] AD4.
Ms Newman has never held a driver’s licence.
Ms Newman is Filipina with seven siblings, and she worked from a young age to support the family. She denied experiencing any traumatic events during childhood.
Ms Newman fell pregnant at 16 years old. She moved to Australia at 20 years old and worked in a supermarket for eight years. Her first marriage was abusive, lasting 11 years.
Ms Newman’s next partner died suddenly of a heart attack in 2016. She felt ostracised by his family during this time because she was from a different cultural background. This complicated her grief.
She remarried in February 2019.
Ms Newman sought psychological treatment in 2005 and was diagnosed with bipolar disorder. She did not agree with the diagnosis, as she had been in a controlling relationship where the husband sought to make allies of her treating doctors.
Ms Newman psychological condition had been stable and not requiring medication until after the accident. Although there had been an earlier inpatient admission there was no history of hypomanic or manic episodes, or family mental illness.
Ms Newman was convicted for being an “accessory to fraud”. She performed one year of community service. Ms Newman explained to Assessor Paisley this occurred in the context of her boyfriend at the time committing fraud on the premises they shared. She has no history of Workers Compensation Claims.
In the two weeks before the accident Ms Newman was training to be a cleaner. She had not worked for some years before that and has not worked since.
There is no history of Ms Newman working in industries requiring repetitive shoulder movements or any occupation or incidents which would traumatise the shoulders.
I have noted that Ms Newman sometimes required interpreters to assist her during some of her interviews. In some accounts they assist and in others Ms Newman manages to communicate in English.

Transitional matters and procedure

The Personal Injury Commission (the Commission) was established on 1 March 2021. These proceedings were commenced on 23 February 2021, before the Commission was established. In accordance with Schedule 1 Pt 2 cls 14A and 14B of the 2020 Act, they constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
There have been three teleconferences in this dispute:
(a)    29 March 2021;
(b)    16 August 2021, and
(c)    15 November 2021.
The parties were in disagreement about the jurisdictional issues, and medical disputes that were relevant to the merit review were delayed due to covid 19 impacting on appointments.
On 5 June 2022, the claimant’s legal representatives notified the Commission they had withdrawn.
On 29 June 2022, I had a conversation with the insurer’s representative Mark Malley after he appeared in another matter before me, asking him to resubmit Ms Newman’s previous statements which were lodged with the insurer in May 2019 and a further statement dated 13 November 2020. These had become lost in the portal. To date they have not been made available.

Jurisdictional issue

The insurer argues Ms Newman’s earning capacity dispute constitutes a medical assessment matter under Schedule 2 cl 2(d) of the Motor Accident Injuries Act2017 (the MAI Act) and the Commission may not determine the dispute as a merit review matter.
The insurer submits a dispute about the degree of impairment of an injured person’s earning capacity, which has resulted from accident related injuries is a medical assessment matter for the purposes of Pt 7 of the MAI Act.
The insurer’s decision maker, in the later internal review certificate dated
15 October 2021, expressed the difficulty was due to the conclusiveness of the Medical Assessment Certificates issued.
The insurer’s decision maker pointed out that Adam J in Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424 (Girgis) held findings on causation in a Medical Assessment Certificate are not material to any other issue (see [34]).
He commented that approach results in multiple Medical Assessment Certificates being issued with differing determinations as to causation for the same injuries. Assessor Wijetunga determined the accident did not cause the right shoulder injury before determining the ‘minor injury’ decision, yet Assessor Bodel found the accident caused the relevant injury in relation to a treatment dispute.
The recent Review Panel Certificate dated 25 April 2022[10] regarding Assessor Bodel’s findings discounted his opinion on causation for the right shoulder injury, but also certified a different outcome to Assessor Wijetunga’s findings on Ms Newman’s cervical condition to say it was non-minor and resulted in 5% permanent impairment.
[10] AD15-2022.04.25 - Review Panel Certificate_11375486.
I note that lends strength to the claimant’s submissions regarding Assessor Paisley’s further assessment, that notwithstanding the dispute about the right shoulder, the cervical condition is contributing materially to Ms Newman’s secondary psychological condition.
The insurer’s decision maker pointed out Assessor Wijetunga may have erred in her assessment as the medical assessment matter to be decided was “whether the injury caused by the motor accident is a minor injury for the purposes of the Act” (emphasis added). The phrase ‘whether the injury caused by the motor accident’, indicates the element of causation for the injury has already been determined and what remains is whether such an injury satisfies the definition of ‘minor injury’.
The insurer’s decision maker opined the legislator anticipated causation would be agreed upon prior to the assessment. Or, if causation was in dispute, it is to be determined pursuant to a miscellaneous assessment matter under Schedule 2(3)(b) which states, whether for the purposes of s 3.1 the death of or injury to a person has resulted from a motor accident in this State.
The insurer’s decision maker writes this is inconsistent though with decisions made under the Motor Accidents Compensation Act 1999 (MAC Act) such as Rodger v De Gelder [2015] NSWCA 211 in which Gleeson JA stated at [171]:
“It is well established that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) is unequivocally for the medical assessor, or review panel, as the case may be, including the element of causation.”
As noted above, that decision and the decisions referred to by Gleeson JA were made under the MAC Act. The insurer’s decision maker decided they ought to be followed regardless and a minor injury assessment, like an assessment of permanent impairment, can include causation. However, the difficulty in such an application is highlighted by the inconsistent Medical Assessment Certificates on the issue of causation issued in this matter, and it may be considered inconsistent with Schedule 2(3)(b).
Ms Newman submits the dispute is a merit review matter because it is about the amount of statutory benefits payable under Div. 3.3 (see Schedule 2 cl 1(a)).
Section 3.8 of the MAI Act uses the term “loss of earning capacity” in s 3.8(1) and “post-accident earning capacity” in s 3.8(2). The term “impairment of earning capacity” is not found in s 3.8. Disputes about loss of earning capacity in the context of s 3.8 are disputes about the amount of statutory benefits payable under Div. 3.3.
Further, while “impairment of earning capacity” is found in Pt 4 of the MAI Act (see for example ss 4.5(1)(a), 4.6(1)(a), 4.6(3), 4.8 & 4.9(1)(a)), that Part addresses damages, not statutory benefits.
I find the Commission can determine this dispute about Ms Newman’s earning capacity as a merit review matter under Schedule 2(1)(a) of the MAI Act. It is not about
Ms Newman’s “impairment of earning capacity”.
Member Williams’ reasons in ACH v Allianz Australia Insurance Limited [2021] NSWPICMR 35 (27 July 2021) assisted me in forming this view.

Relevant statutory provisions

Section 3.8 and Schedule 1 cl 8 of the MAI Act are the relevant provisions stated in the decisions:
“3.8 Weekly payments after second entitlement period (after week 78)
(1) A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person—
(a) is at least 18 years of age (whether or not the person is an earner), or
(b) is under 18 years of age and is an earner. Note—
The person’s age after the second entitlement period is relevant to determining entitlement to statutory benefits after the second entitlement period. A person’s age at the date of the motor accident is not relevant. Schedule 1 defines when a person is an earner.
(2) A weekly payment of statutory benefits under this section is to be at the rate of—
(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident earning capacity and the person’s post-accident earning capacity (if any) after the second entitlement period.
(3) A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person’s post- accident earning capacity (if any) after the second entitlement period.
(4) A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person’s pre- accident earning capacity, whichever is the lesser.

Schedule 1 cl 8 Meaning of ‘post-accident earning capacity’
(1) Post-accident earning capacityof an injured person means—
(a) ...
(b) for any period after the second entitlement period—the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person’s fitness for work in any such employment.
(2) ...
(3) A person’s fitness for work after the second entitlement period is to be determined having regard to the following—
(a) the nature of the injury and the likely process of recovery,
(b) treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c) the person’s training, skills and experience,
(d) the age of the person,
(e) any medical certificate provided by the injured person as to the person’s fitness for work.
(4) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.”

The insurer notwithstanding s 3.8 relating to the amount of weekly payments has made a decision on causation and relied on that section to decline to pay Ms Newman medical benefits and weekly payments.
The definition of post-accident earning capacity contained in Schedule 1 includes a variety of matters not all of which are medical matters.
For the purpose of this dispute, I proceed on the basis there is no dispute as to
Ms Newman’s pre-accident earning capacity nor the non-medical components of determining her post-accident earning capacity, in particular that she is an earner.
I also proceed on the basis it is agreed the amount of Ms Newman’s loss of earning incapacity is established, but the cause of loss is disputed.
The parties agree the dispute relates to Ms Newman’s entitlements to weekly payments of statutory benefits in accordance with s 3.8 of the MAI Act for the period after 8 December 2020 and continuing.
Ms Newman claims she suffered a total loss of earning capacity due to the accident–due to the impact of a right shoulder condition and a psychological condition–which is continuing, and she is entitled to weekly payments in accordance with s 3.8 of the MAI Act.

Evidence re causation

Independent Medical examinations

Dr Thomas Rosenthal’s report dated 4 September 2020 wrote there is insufficient evidence to suggest she tore her right rotator cuff and had she done so the pain would be immediate. He opined there was no frank injury to the right shoulder from the motor vehicle accident based on the available material.
Dr Rosenthal noted there was no improvement from the C7 nerve root injection. “The right shoulder pain got worse around April/May 2018”. Her injury from the accident is the neck injury. He opines the shoulder injury is unrelated and thus would not be considered in determining her reduced fitness for work because of injuries from the accident. Dr Rosenthal thought there was asymmetry in the neck and assessed
Ms Newman’s cervical condition at 5% whole person impairment.
Dr Raymond Wallace saw Ms Newman with an interpreter on 9 August 2020. He wrote – in May 2018, some four months post-injury, she notified doctors about pain in her right shoulder. Dr Wallace recorded a markedly reduced range of motion but normal neurological examination with hypersensitivity and tenderness globally. He concluded:
“there is no objective medical evidence Ms Newman had suffered any injury to her right shoulder at the time of the index motor vehicle accident of January 2018… She did not note the onset of right shoulder symptoms until May 2018, some 4 months post-injury. Her right shoulder condition is due to age related degenerative rotator cuff pathology which is constitutional in origin and entirely unrelated to the motor vehicle accident of 24 January 2018.”
Dr Graeme Mendelson wrote to Bryden’s lawyers on 30 February 2020 – Ms Newman was on a new start allowance and was apparently about to start work. She has not worked since the accident. Dr Mendelson confirms that when Ms Newman saw her GP after the accident she was not having any severe symptoms, but they started that night. She takes tramadol and codeine paracetamol for her pain. Dr Mendelson was aware of the investigations – MRI of the right shoulder, ultrasound of the right shoulder and CT of the cervical spine.
He reports she was then 80 kg in weight and 150 cm tall. Abduction was 75° of flexion 80°. There was no neurological deficit. There were some lower back problems, but essentially the difficulty is the right shoulder, and this had resulted in limitation of movement and weakness.
Dr Mendelson thought complete recovery was unlikely even with surgery; her lumbar and cervical spine would be an ongoing problem with discomfort and may require surgery.
Dr Mendelson opined there is a direct connection between the injuries received in the motor vehicle accident. She was asymptomatic in all areas involved prior to the motor vehicle accident.
The medical review panel[11] wrote that Dr Mendelson was not aware of the gap between the accident and the onset of right shoulder pain when he wrote that report.
[11] AD15-2022.04.25 - Review Panel Certificate_11375486.
I note although Dr Mendelson does not refer to the gap in reporting the right shoulder condition, his instructions would have included the scan reports, plus GP and the Canterbury Hospital notes and Dr Leonard Kuo’s findings, which document the timing of the complaints and investigations.
Dr Jeff Bertucen, psychiatrist wrote to Law Partners Personal Injury Lawyers on
12 November 2019 – he found Ms Newman’s permanent impairment was 6% from post-traumatic stress disorder (a primary condition) and secondary to her right shoulder condition. He found Ms Newman’s pre-existing psychological illnesses were not operative at the time of the accident.
Dr Melissa Barrett, psychiatrist wrote to Moray and Agnew on 17 September 2020 and assessed net 0% psychological impairment as Ms Newman’s pre-accident permanent impairment was and remains 5%. Dr Barrett opines Ms Newman’s secondary psychological condition is only related to the right shoulder injury, although she concedes she has no expertise when it comes to forming an opinion on whether the accident caused that injury.
Dr Melissa Barrett’s further report dated 27 October 2021 confirmed her opinion in her earlier report that it was the pain from the right shoulder that was causing her secondary psychological condition. She did not traverse Assessor Paisley’s findings on causation in his further medical assessment discussed below.

Imaging studies

Canterbury Hospital X-ray of the chest performed on 25 January 2018 with the given history of motor vehicle accident.
Canterbury Hospital CT cervical spine dated 25 January 2018 –reported limbus vertebrae or focal ossification anterior longitudinal ligament C4/5, C5/6, and C6/7, no fracture or subluxation, no prevertebral soft tissue swelling is demonstrated. Moderate to severe stenosis of the right C6/7 neural exit foramina.
Right shoulder ultrasound for 6 June 2018 radiologist David Kang–this reported subacromial bursitis and moderate to high grade partial thickness tear of the supraspinatus, possible early frozen shoulder. Ultrasound guided cortisone injections were given on 20 June 2018 and 19 July 2018.
Campsie Medical Imaging MRI dated 9 January 2019, Dr Brian Lam reports there is a complete tear of the supraspinatus with 4 mm of retraction but no atrophy in the muscle, and there is no other significant interarticular pathology.
Alfred Medical Imaging dated 16 February 2020 MRI cervical spine reported the dominant finding is severe foraminal narrowing on the right at C6 7 and to a lesser degree on the right at C 5/6 with associated exiting nerve root impingement. Otherwise, normal findings for age.

Treating doctor reports

Canterbury Hospital:
(a)    25 January 2018 notes – summarised as–MVA yesterday at 1 PM had to evacuate by the driver side. Neither police nor ambulance attended. No head injury, no LOC, full recall of all events gradually worsening neck pain since, no other symptoms. GCS 15, looks well, hemodynamically stable, midline cervical spine tenderness to C4/6, decreased sensation to pinprick on C4 and C5 in both upper limbs, normal lower limbs. CT scan performed to exclude cervical fracture;
(b)    4 April 2019 notes vertigo and gastro-oesophageal reflux disease. Neurological examination normal;
(c)    13 May 2019 – three hour history of low back pain suffered when sitting on a couch, denies any proceeding trauma or mechanical stress. On Panadol and Ibuprofen. Recently re-married. Still awaiting rotator cuff repair;
(d)    Notes from 5 September 2019 referred Ms Newman back to her GP noting she was very anxious to the point where ECG and serum troponin were performed. History of anxiety and major depression and she was commenced on medication. Under financial stress re-CTP claim. Very depressed as former partner died during surgery, and
(e)    2 July 2020 vertigo and nausea with a similar episode one year before and attended Bankstown (Hospital). No major abnormal findings and discharged home.
Lakemba Family Health Centre GP notes–
(a)    Dr Monsur saw Ms Newman on 24 January 2018: patient states she was involved in MVA around 20 minutes ago, was passenger in front seat, hit by another car at the left side of her car, airbag did not inflate, felt some discomfort around the neck area;
(b)    Dr Hossain 2 February 2018 noting Ms Newman seeks Centrelink certificate, and
(c)    5 February 2018 Dr Monsur–to see the psychologist with a history of depression and mental health issues.
Haldon Street Medical Centre:
(a) Dr Ahmed 18 February 2019 medical certificates retrospectively referring to the shoulder injury, and
(b) on 10 May 2019 the centre notes doctor further retrospectively referring to the shoulder injury, and noting initial treatment was an injury of the neck and shoulder pain, and a similar medical certificate on 16 July 2019 making retrospective reference to the shoulder.
Dr Leonard Kuo on 8 October 2018 and 16 January 2019 – linking the right shoulder problems to the accident and confirming the presence of the tear on MRI.
Dr Ompraksh Damodaran of Sydney Spine Institute’s letter to Dr Milard at the Campsie Medical and Dental Centre dated 30 June 2020[12] – she has a right-sided C7 radiculopathy and right-sided shoulder problems. There is significant periscapular pain diminution light touch at C6 and C7 on the right side, MRI shows C6 7 right sided foraminal stenosis. “This is fairly severe”. The scans also show a disc protrusion at C5 6. He suggests a foraminal injection and if no improvement to see a pain physician.
[12] R21
Dr Damodaran also writes:
“Florence's main issue is the primary shoulder pathology. She also has neck pain with intermittent C7 radiculopathy particularly affecting the right side. She did not have these symptoms prior to the accident. Motor vehicle accident(s) can lead to exacerbation of underlying pre-existing degenerative cervical spine pathology. Patients can have long-standing foraminal stenosis which can become exacerbated and acutely sympathetic following a motor vehicle accident. This also leads to her current shoulder issues. I believe that the accident has led to exacerbation of pre-existing neck issue(s), and it may have also contributed to her primary shoulder pathology.”

Personal Injury Commission/DRS– medical assessments

Medical Assessor Nel Wijetunga certificate dated 26 June 2019 – the cervical spine and associated whiplash disorder is a minor injury, but accident did not cause tear in right rotator cuff. Medical Assessor Wijetunga noted there is no contemporaneous evidence of injury as the right shoulder injury was not recorded until five months after the accident.
Medical Assessor Wijetunga queried Ms Newman about the delay to presentation for right shoulder pain and changed her reporting of onset from immediate to two to three months after the motor vehicle accident. The Medical Assessor queried Ms Newman as to why it was not listed on the personal injury claim form, Ms Newman says the shoulder was not troublesome then. Assessor Wijetunga did not rely on the letter of
Dr Ahmed of 18 February 2019 since it was written retrospectively. Assessor Wijetunga quotes from the internal review documents of GIO that Dr Ahmed’s report on
29 May 2018 did not mention her shoulder and it was not till 1 June 2018 that the shoulder was examined.
The Assessor writes:
“Mrs Newman was involved in a motor vehicle accident which resulted in her vehicle being t-boned on her passenger side, directly against the left shoulder. Therefore there was no restraint against the right shoulder. There were no airbags deployed, so there is a lack of direct trauma to the right shoulder. Additionally, there is no documentation of right shoulder pain for several months. With further clarification, Mrs Newman advised that the right shoulder pain only onset two to three months after the injury. An injury involving a full or partial tear of the right shoulder, would normally occur with sufficient force against the right shoulder or pushing against the right shoulder and would at least be present or obvious in the form of reduced range of movement and/or pain, within the first couple of weeks. A delay of a few months is not medically plausible with the nature of a rotator cuff injury. Therefore the rotator cuff injury has not been caused by the motor vehicle accident.”[13]
[13] A6-5 page 8.
Medical Assessor Paisley’s certificate and reasons dated 20 August 2021 are summarised above.
DRS Medical Assessor Anthony Samuels issued a Medical Assessment – Treatment (Psychological) Certificate dated 4 December 2020. Assessor Samuels reported the following:
(a)    he considered that Ms Newman appeared to meet the diagnostic criteria for a persistent depressive disorder with anxious mood;
(b)    he determined there was no benefit in further psychological sessions given the limited improvement reported to the date of the examination, and
(c)    he reported the accident and chronic pain exacerbated Ms Newman’s underlying depression coupled with a preoccupation with the belief that the insurer had denied her appropriate care.
Assessor Bodel’s certificate dated 29 December 2020 states he accepts the right shoulder problem relates to the motor vehicle accident, noting Drs’ Wallace, Rosenthal, and Damodaran reports.
Assessor Bodel wrote Ms Newman reported immediate neck pain. He records guarding in the cervical spine and reduced range of motion in all directions but more so on extension and rotation to the left and thus dysmetria. There are no thoracic or lumbar spine problems.
Assessor Bodel’s opinion relies on the absence of any symptomatology prior to the motor vehicle accident and that the neck injury had disguised the nature of the shoulder problem.
Assessor Bodel notes the insurer’s submissions on Medical Assessor Wijetunga’s findings and delay in reporting the right shoulder condition.
Assessor Bodel writes:
“I am satisfied that the pathology in the region of the right shoulder identified in the ultrasound and MRI scans is causally related to the effects of the motor vehicle accident for the following reasons. This lady gives no history of any other accident or injury leading to the onset of symptoms in that region. At her initial clinical presentation at hospital, she was complaining of neck pain and referred pain and numbness and tingling in both arms. I accept that there was no specific mention of either shoulder at that time, but she did have widespread complaints involving the neck, both shoulders and arms at the time of the motor vehicle accident. There is no history of any other accident or injury and no other event that could have led to the pathology in the region of the right shoulder which is clearly identified on the MRI scan. There is also no history of any prior problems with either shoulder at the time of the motor vehicle accident.”
Drs Mohammed Assem, Richard Crane, Geoffrey Stubbs issued a replacement assessment certificate dated 25 April 2022 in response to the insurer’s application for review.[14]
[14] AD15-2022.04.25 - Review Panel Certificate_11375486.
The insurer wanted the panel to find that the right shoulder was not causally related to the accident and there was only a whiplash associated disorder to the neck, which was a minor injury. The insurer had sought the application because Assessor Bodel did not explain how the injury could have been suffered in the accident.
Although, the panel found that the accident did not cause the right shoulder injury, it found that Ms Newman’s neck injury was not a minor injury with 5% permanent impairment.
Although not commented on in the panel’s report or any insurer’s submissions, Assessor Paisley’s further assessment found that the neck injury contributed to
Ms Newman’s psychological condition–which was, according to her GP– causing her a loss of earning capacity.
To test Ms Newman’s memory the three medical specialists on the panel questioned Ms Newman via video link. The decision does not mention whether an interpreter was available to assist Ms Newman.
The Panel told Ms Newman during the interview, “the Panel accepted that there are no proceeding [sic] right shoulder problems and that she now suffered from a rotator cuff tear”.
They also asked Ms Newman to explain how the accident could have injured her right shoulder.
The panel’s decision on causation was as follows:
“The Panel felt that Ms Newman was inconsistent and at times evasive in her answers to the questions. In this circumstance the Panel felt the contemporary record was more reliable. The Panel believe that the doctors who saw her after the onset rotator cuff symptoms were misled by her statements that right shoulder symptoms were present immediately after the accident. The Panel accept that there were no symptoms prior to the accident but the assumption the accident must have caused the rotator cuff tear was un-soundly based on the history provided by Mrs Newman of immediate and continuing right shoulder problems and there was no plausible physical mechanism why a left-sided impact should have caused any injury to the right shoulder.”
The panel opined that if the accident injured the right shoulder then Ms Newman would have reported it immediately, and it would have been included in her claim form. Unlike Medical Assessor Wijetunga they were of the opinion that the accident was a side swipe rather than a T-bone type collision, based on their analysis of one photo.
The panel provided a number of different ways that a shoulder rotator can be injured. They noted that Ms Newman did not describe any of the ways that could result from direct trauma.
They did not address Dr Damodaran’s hypothesis.

Submissions

Claimant’s submissions

Assessor Shannon Paisley’s Further Medical Assessment of Ms Newman’s psychological injuries dated 19 August 2021 (examination was on 25 May 2021) found Ms Newman suffered from persistent depressive disorder and therefore a non-minor psychological injury.
On 15 October 2021 the insurer’s further Internal Review outcome affirmed that
Ms Newman was not entitled to receive any wages beyond 8 December 2020.
The insurer’s decision was limited to whether Schedule 2 (2)(d) of the Act applied concerning the degree of impairment of the earning capacity of the injured person that has resulted from the motor accident caused injury.
Ms Newman submits the insurer had selectively relied upon the previous decision of Assessor Wijetunga where it was determined that Ms Newman’s right shoulder injury was not causally related to the subject accident, thereby disregarding Assessor Bodel’s decision on the right shoulder and now Assessor Paisley’s causation decision on her psychiatric condition.
Assessor Shannon Paisley assessed Ms Newman twice, and on both occasions Assessor Paisley certified on 14 August 2019 and 19 August 2021 that the accident caused Ms Newman’s psychological injuries.
Assessor Paisley’s recent Certificate of Outcome considered two aspects of causation which addressed:
(a) whether Ms Newman’s current condition is a continuation of a pre-existing condition, and
(b) whether the accident caused the right shoulder injury, and if so, is her right shoulder injury the main cause of her current psychological condition.
Assessor Paisley mentions Ms Newman had been stable and did not require any psychological medications from 2005 until after the accident, and since the subject accident she has required antidepressants and further reliance on psychological therapy with Ms Tanuza Rahman until the insurer ceased her treatment funding.
Assessor Paisley documented in his certificate of 19 August 2021:
“In either case, her depression was not caused solely by the pain in her right shoulder. She did experience significant pain symptoms from soft tissue injuries in her neck and back which caused distress and incapacity. She had psychological shock from the accident which, although it did not cause PTSD, also contributed to her depressive symptoms.”

Ms Newman’s GP Dr Milad continued to issue Ms Newman Certificates of Capacity certifying her totally unfit for pre-accident duties. In the most recent Certificate of Capacity before me, dated 9 November 2021, Dr Maher refers to Ms Newman’ incapacity as a result of her neck, back, right shoulder and due to her psychological injuries.

Insurer’s submissions

The insurer submits, correctly, that the only issue is causation, that is referring specifically to the original decision—whether the subject accident is a cause of the pathology leading to the need for the right shoulder surgery. DRS Assessor Wijetunga–in relation to the minor injury dispute–found the right shoulder pathology did not arise as a consequence of the accident. Dealing with the proposed right shoulder surgery treatment dispute, Assessor Bodel concluded that there is a causal nexus.
The decision to cease payments after 8 December 2020 was affirmed in Internal–Decision Reviewer’s, Ms Prasad decision dated 29 December 2020. Ms Prasad asserted that the claimant has the capacity to work pre-injury hours and also confirmed that the claimant has no entitlement of weekly statutory benefits for ongoing wage loss.
The earlier Internal Review reasons extend for some 18 pages and list, at pages 3 and 4, some 30 documents considered. In addition, the relevant pieces of legislation and guidelines referred to are itemised on page 4. The following 13 pages then summarise the material and documents reviewed and then, commencing at page 17, follow four pages of analysis and reasoning.
The critical issues identified are the lack of nexus between Ms Newman’s right shoulder complaints and the subject motor accident, and her alleged incapacity for work.
Ms Prasad’s decision considered and analysed the large volume of material available to her and formed her opinion that the claimant’s incapacity is not a result of the injuries sustained in the subject accident and, further, that the accident related injuries do not prevent her from returning to her pre-injury duties of 25 hours per week as a cleaner or in an alternate position such as one of those identified earlier in the reasons.
Assessor Bodel’s certificate dated 29 December 2020 addressed a dispute about proposed right shoulder surgery and his opinion conflicts with Assessor Wijetunga dealing with the same causation issue in relation to minor injury. In addition, Ms Prasad expressly had regard to the other opinions referred to in her Internal Review, in particular Dr Rosenthal, occupational physician, and Dr Wallace, orthopaedic surgeon.
The MAI Act does not contain an adequate mechanism to conclusively resolve a dispute about causation of a particular injury which can arise when the issue is considered by different Assessors in the context of different discrete disputes at different times, as in this case.
In any event, Assessor Bodel’s decision has now been reviewed and the insurer relies on the Review Panel Replacement Certificate of Assessors Assem, Crane and Stubbs dated 25 April 2022[15].
[15] AD15.
The insurer also relies on the following submissions from Moray and Agnew’s letter dated 2 June 2022.[16]
[16] AD14.
The insurer contends that as a matter of law, after Review Panel Replacement certificate issued, DRS Assessor Bodel’s certificate dated 29 December 2020 with his opinion and reasons can no longer be considered or taken into account in this dispute (or in any other dispute in the Commission or a court) because, having been set aside, it has no status as a ‘certificate’ and otherwise does not comply with the requirements of PIC Direction 4.
The insurer contends that the replacement certificate with its reasons fortifies previously outlined arguments regarding the lack of nexus between the motor accident and the claimant’s right shoulder problems and resulting incapacity.
In Assessor Bodel’s opinion, the key determining feature is the absence of any other accident or injury involving the claimant on a history of no pre-accident right shoulder issues.
However, the insurer argues that alone is not enough where there is no dispute that the accident occurred when the insured vehicle collided with the passenger (left) side of the claimant’s vehicle while she was sitting in the front passenger seat.
In AAI Limited v Fitzpatrick [2015] NSWSC 1108, a decision under the MAC Act, the principles of which the insurer contends apply to a claim under the MAI Act, Schmidt J summarised the medical assessor’s obligations as follows:
“[27] There was no real issue between the parties as to the assessor’s obligations under this statutory scheme, where the statutory task being undertaken requires consideration to be given to the question of both factual and medical causation.”
Those obligations are of the nature discussed in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [47] - [48], (Wingfoot) namely, to form and give his or her own opinion on the medical dispute referred. In undertaking that function, the Assessor must consider what both parties advance, in light of the information provided to the Assessor. The Assessor is not called on to choose between competing arguments, or to opine on the correctness of other opinions about the medical dispute, but must form his or her own opinion, by applying the Assessor’s own medical experience and expertise.
In forming his or her opinions on the dispute, the Assessor must take into account what any clinical examination he or she conducts reveals, as well as the opinions of other medical practitioners, including those expressed in earlier certificates, the treating doctors and those who have expressed medico-legal opinions. Account must also be taken of diagnostic findings and other available notes and reports, including those from allied health professionals.
The conclusions expressed in the certificate issued must then be explained by the Assessor in the accompanying statement of the reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the Assessor arrived at the opinions formed on each of the issues which had to be resolved. Such reasons are not, in review proceedings such as this, to be scrutinised over zealously, as discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.
As discussed in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at 77 it is said: where there is a medical controversy over a particular issue, more expansive explanations may need to be given.
Wingfoot dealt with controversy about a medical panel decision referred for determination pursuant to the Accident Compensation Act 1985 (Vic). The High Court expressed it as:
“The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
The insurer in these submissions asserts that Assessor Wijetunga’s findings on causation were binding, which contrasts with the insurer’s most recent decision maker reference to Girgis above.
The insurer’s later submissions state that the panel reviewing Assessor Bodel’s decision is binding and Assessor Bodel’s decision cannot be further considered in any proceedings.
The insurer does not make submissions regarding Assessor Paisley’s further assessment, although Dr Barrett re-examined Ms Newman after Assessor Paisley’s further assessment dated 19 August 2021 and the insurer apparently provided that certificate to Dr Barrett to comment on: it is referred to as a report 25 May 2021 (the date Assessor Paisley re-examined Ms Newman).
I perused Dr Barrett’s later report dated 27 October 2021[17], and it does not address Assessor Paisley’s further assessment linking the neck condition with the secondary psychological condition and a primary psychological condition.
[17] R36 in AD13.
I revert to the review panel’s conclusion that the motor accident caused the non-minor cervical condition, and it has caused permanent impairment.

Documentation

As part of the merit review, I considered the following documents:
(a)    Application for Personal Injury Benefits Claim Form dated 16 February 2018;
(b)    Certificate of Determination – Internal Review dated 15 October 2021;
(c)    Medical Assessor Shannon Paisley’s Medical Assessment Certificate minor injury (psychological) dated 14 August 2019;
(d)    Further Medical Assessment Certificate from Medical Assessor Shannon Paisley– minor injury (psychological) dated 19 August 2021;
(e)    Assessor Anthony Samuels’ certificate dated 4 December 2020
(f)    Medical Assessment Certificate from Medical Assessor Wijetunga– minor injury (physical) dated 26 June 2019;
(g)    Medical Assessment Certificate from Medical Assessor James Bodel– treatment (physical) dated 29 December 2020;
(h)    Dr Omprakash Damodoran’s letter to Dr Milad dated 30 June 2020;
(i)    Dr Melissa Barrett’s report dated 17 September 2020;
(j)    Dr Melissa Barrett’s report dated 27 October 2021;
(k)    Review Panel Certificate 22 April 2022 regarding Ms Newman’s physical injuries;
(l)    GIO Claims Team’s Adverse Earning Capacity Decision dated 6 September 2021, and
(m)     Dr Bertucen’s report dated 12 November 2019.
I do not have the following documents referred to in the various reports above:
(a)    Dr Kuo’s (orthopaedic surgeon) reports dated 8 October 2018, 16 January 2019 and 2 June 2020;
(b)    Dr Tanuza Rahman’s report dated 8 May 2019;
(c)    Dr Masum Ahmed’s report dated 16 July 2019;
(d)    Ms Newman’s statement dated 13 November 2020, and
(e)    undated and unsigned statement submitted May 2019.

Reasons

Objects of the relevant Acts

Ms Newman’s claim is made under the provisions of the MAI Act; accordingly the Commission will make the merit review decision in accordance with the 2020 Act, the Commission's rules and any relevant provisions of the MAI Act.
The MAI Act objects are found at s 1.3(2), which addresses among other things "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes” and “to provide early and ongoing financial support for persons injured in motor accidents".
Section 1.3(4) provides that when interpreting the provisions of the MAI Act, a construction that would promote the objects of the Act is to be preferred over one that would not.
Section 1.3(5) provides that when exercising a discretion conferred by the MAI Act, that discretion must be exercised in a way that would also promote the objects of the MAI Act.
The objects of the 2020 Act are set out in s 3 and include ensuring that the Commission’s decisions are timely, fair, consistent and of a high quality and that the Commission is enabled to decide matters justly, quickly, cost effectively and with as little formality as possible.
Section 4 of the 2020 Act echoes ss 1.3(4) and (5) of the MAI Act and requires interpretations of provisions that promote the objects of the 2020 Act and the exercise of legislatively conferred discretions in a way which promotes the objects of the 2020 Act.
Section 42(1) of the 2020 Act and the Commission rules contain the Commission’s ‘guiding principle’ which is that the Commission must facilitate “the just, quick and cost-effective resolution of the real issues in the proceedings”.
Section 42(2) requires me, as a Member of the Commission, as well as a Merit Reviewer, to give effect to the guiding principle when exercising any power given to me under the 2020 Act or the rules of when interpreting any provision of the 2020 Act or the rules.
I confirm the delay in producing this decision is more than 12 months since it was first referred. There have been numerous additional decisions made in respect of
Ms Newman’s claim, including the recent medical review panel in late April 2022.
The merit review on earning capacity is a fresh decision, and the decision to be made is on injury causation. I have noted the outcomes of the earlier conclusions regarding causation, and they provide guidance as to what must be considered.

Amount of weekly payments

In determining a merit review, according to s 7.13(1) of the MAI Act, I must decide what the "correct and preferable decision" should be, according to the material before me.
I am required to step into the shoes of the insurer and make my own decision on the merits of the dispute – s 7.13(2), based on the information provided rather than on identifying errors in the previous decisions.
Pursuant to s 7.13(3), as Merit Reviewer I may decide to:
·        affirm the reviewable decision, or
·        vary the reviewable decision, or
·        set aside the reviewable decision and make a decision in substitution for the reviewable decision, or
·        set aside the reviewable decision and remit the matter for reconsideration by the insurer in accordance with any direction made by the merit reviewer.
I am satisfied that sufficient information has been supplied to the Commission in connection with these proceedings, so I may determine this merit review without holding a conference or formal hearing (see s 52(3) of the 2020 Act) and can proceed on the papers in accordance with Procedural Direction PIC2.
In accordance with s 43 of the 2020 Act I am not bound by the rules of evidence but may inform myself on any matter in the manner I think appropriate and as the proper consideration of this matter permits.
Ms Newman is accepted as an earner under Schedule 1, cl 2 of the MAI Act.
The insurer’s original decision is that the claimant’s right shoulder is causing
Ms Newman to lose her earning capacity, and that the motor accident did not cause the right shoulder condition.
Since that decision was made there have been a number of medical assessments and a further internal review decision regarding the right shoulder and the cause of the disabling psychological condition.
The more recent internal review decision decided that in spite of Ms Newman’s psychological condition – which is also adversely affecting her earning capacity being linked to the primary impact of the accident, and the secondary psychological condition arising from her neck as well as the shoulder condition was only linked to her right shoulder.

Credit

The Review Panel’s decision finding against the nexus between the accident and
Ms Newman’s condition reads as if Ms Newman’s failure to satisfy these Assessors is based on her credit.
The Assessors along with Assessor Wijetunga states that for the right shoulder condition to happen in the accident when Ms Newman delayed reporting it specifically is not “medically plausible”.
Assessor Wijetunga applies a biomechanical approach, not based on a scientific examination of the accident in question, but rather an analysis of Ms Newman’s recollection of how the accident occurred when she opines that the lack of right restraint on the shoulder and lack of direct trauma coupled with the late report of symptoms meant the accident could not cause the condition.
In December 2021 the panel asked Ms Newman to explain how she could have been injured.
Ms Newman is neither well-educated, nor a fluent English speaker nor a driver. She has no experience of driving other than as a passenger so relying on her recollection to establish the biomechanics is unscientific and uncertain.
Her late reporting and sometime confusing and conflicting recollections of when she started to have symptoms after the accident are treated as untruthful, when given the number of times she had to tell her story to specialists, her lack of education and English fluency, her mental ill-health, her trauma history, the lack of an advocate to appear on her behalf and the power imbalance between her questioners and herself it is understandable she would be confused and may give answers that conflict with past answers.
Ms Newman’s evidence in these circumstances on the mechanism of the accident could not have been logical and probative.
The Review Panel bases its decision on what it “felt”, and its beliefs that Ms Newman was evasive in her answers or misleading to her doctors—even though they told her that the condition was accepted as not being symptomatic before the accident.
The Review Panel wrote that Ms Newman must have misled the other doctors who examined her, when those doctors were briefed with the same clinical notes and treating correspondence as they were.
The panel treated the information that she provided in their interview via video as exhibiting a lack of credibility when they were required to decide a medical issue.

The decisions

As expressed above the medical review panel and Assessor Wijetunga’s decisions finding no nexus between the accident and Ms Newman’s right shoulder condition have based their decisions on credit, i.e. they assess Ms Newman’s reliability as an historian of how the accident occurred and the late report of symptoms. Then those decision makers decide that what she recounts makes the nexus medically implausible.
That is unhelpful because they treat Ms Newman as if she ought to be a credible historian of how a car accident injured her.
The evidence describing how the car accident occurred is a photograph, which I have not seen and Ms Newman's accounts. She has had to describe the accident and history of complaints to seven medical Assessors since early 2018 and to five medico-legal specialists as well as treatment providers.
From the photo, the review panel hypothesised that the accident was a sideswipe that could not have injured her shoulder and not a T-bone collision as the Canterbury Hospital clinical notes and Medical Assessor Wijetunga reports.
There are no statements from either the insured driver or the driver of Ms Newman’s car.
Although the rules of evidence do not apply to Commission proceedings, I have to ask whether evidence, which has been repeated over four years by this unsophisticated witness will be probative and logical, and to choose what weight to give this.
When the three specialist panel questioned her over Teams it was almost four years since she was injured. In the normal course of events, each time a story is told it will vary. The panel says it preferred the documentary evidence, yet it makes findings on Ms Newman’s credit including writing in the report that the doctors who approved the nexus with the accident were “misled”.
Medical Assessor Wijetunga, in the interests of fairness, puts the late report of injury to her, but write that she lacked a “plausible explanation” and judges the lack of wasting in the right shoulder as indicative of Ms Newman not being incapacitated when that was not in question.
It is not possible to accurately gauge what would be the effect of the doctors’ questioning filtered through Ms Newman’s diverse cultural norms, her status, lack of English comprehension, lack of education compared with the combined post graduate of the doctors she saw, and her lack of driving experience.
It is safer not to rely on Ms Newman to recount how the accident happened or to pick one account as the correct one, and it would be misleading for me to give much weight to her inconsistency when she describes when the condition became symptomatic. It is clear that the symptomology occurred after the accident, albeit not specifically and immediately afterwards, but with no intervening events breaking the chain of causation.

Regarding her psychological condition I am satisfied that although she had mental health challenges pre-accident that there is a consistent connection with that condition to the motor accident.
This is supported in Dr Barrett’s reports and Assessor Paisley assessments.

Injury causation

Physical condition

There is a divergence of opinions on shoulder causation, and the insurer prefers Assessor Wijetunga on the right shoulder and subsequently the medical review panel because they robustly opine that it is not medically plausible the accident caused her injury, as Ms Newman described it happening.
Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(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.”
This, therefore, involves a medical decision and a non-medical informed judgement.
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.
In Peet v NRMA Insurance Ltd [18] the Court reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW[19] who stated that it was “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 the Civil Liability Act, 2002, s 5D”.
[18] [2015] NSWSC 558.
[19] (2012) NSWSC 560.
In the recent case of Hunter v Insurance Australia Ltd[20] the Court observed (at paragraph 16) that a Review Panel was obliged to apply the Guidelines which incorporated “common law principles of causation”.
[20] [2021] NSWSC 623.
Wright J’s recent decision in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 [70] points out “This (scientific) reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty.” In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
“Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]: ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.”
It is accepted there was no evidence Ms Newman right shoulder problem existed before the accident and there was no event after the accident that could have made it symptomatic.
It is relevant that the Assessors in Ms Newman’s case question the presence or absence of contemporaneous evidence of injury, but a lack of early complaint is not determinative regarding causation if there is other evidence available.[21]
[21] Bugat v Fox [2014] NSWSC 888.
Also relevant to this is Dr Damodoran’s suggesting that there was a link between the accepted neck condition and the shoulder condition.
Doctors like Assessor Bodel – who do not rely on how accurately Ms Newman relates how the accident occurred and also note the early lack of specific complaints – take the approach that before the accident the right shoulder was asymptomatic, then after the accident she complained almost immediately of neck pain and bilateral upper limb numbness[22], then there is a considerable delay before the right shoulder complaints begin, with the pathology confirmed with an ultrasound on 6 June 2018 and MRI on
[22] R2 Canterbury Hospital discharge 13 February 2018.
9 January 2019.
I will rely on the documentary evidence, which can be summarised as Ms Newman attending the GP immediately after the accident where she reported shock and neck pain with sensations in both arms, then reporting immediate neck pain the same night at the Canterbury Hospital. Subsequently, in April 2018 she reports specific problems with the right shoulder later confirmed by scans as a tear.
Ms Newman’s GP certified that she is unfit for work due to a physical capacity based on her right shoulder injury. He also notes her resulting functional restrictions, along with post-traumatic stress disorder, anxiety and depression[23].
[23] AD5.
Based on the available evidence, the accident was the only known mechanism to either injure or cause a degenerative pre-existing tear in the right shoulder to become symptomatic.
Dr Ompraksh Damodaran’s letter[24] to Ms Newman’s doctor is helpful, because of the link he draws between the accepted neck injury and the disabling shoulder condition, which I quoted above.
[24] R21.
I have noted that the other specialists or Assessors do not traverse that aspect of
Dr Damodaran’s letter, when it provides a hypothesis that the disabling shoulder condition is linked to the accident.

Psychological condition

In respect of the psychological condition, Assessor Shannon Paisley has also found in her further medical assessment that Ms Newman’s “depression was not caused solely by the pain in her right shoulder. She experience significant pain symptoms from soft tissue injuries in her neck and back which caused distress and incapacity. She had psychological shock from the accident which, although it did not cause PTSD, also contributed to her depressive symptoms”.[25] The learned Assessor found that
[25] AD4 page 8.
Ms Newman’s condition is a persistent depressive disorder, which aligns with the GP’s summation in terms of the impact, if not matching the diagnoses.
Although the insurer relied on Dr Barrett’s comment that the right shoulder condition was the sole source of Ms Newman’s psychological condition[26], Dr Barrett did not comment on this finding when she wrote her later report.[27]
[26] AD3 page 9.
[27] R36 as part of AD13.
I am satisfied that Ms Newman suffers a primary and a non-shoulder related secondary psychological condition as a result of the accident.
Now that the review panel, on the insurer’s application, has found that Ms Newman’s neck condition was persistent, non-minor and causing permanent impairment then Assessor Paisley’s further assessment ought to be accepted in reconsidering the earning capacity decision.
Although there is considerable controversy, with almost an even number of opinions about the source of the right shoulder condition, there is an uncontradicted assessment from Assessor Paisley regarding the cause of Ms Newman’s psychological condition being related primarily to the accident substantially, and the secondary condition is substantially attributable to the persistent neck condition.
I am satisfied that the correct and preferable outcome of this merit review is that insurer’s decision be set aside, and the insurer consider the earning capacity decision again in the light of those findings.

Costs

There is no dispute between Florence Enriquez Newman and the insurer in respect to recovery legal costs under s 8.10 of the MAI Act.

No directions as to costs are made.

Conclusion

The reviewable decision dated 15 October 2022 is set aside and remitted to the insurer for reconsideration in accordance with the directions below:

Ms Newman–on consideration of her treating GP certificates supporting her loss–has suffered a loss of earning capacity as a result of her injuries sustained in the subject motor accident.
I find that the correct and preferable conclusion is that Ms Newman’s loss of earning capacity was substantially a result of her primary psychological condition arising from the accident and secondary psychological condition arising from her neck injury.
This decision is to have effect from 8 December 2020.

Legislation and guidelines

In making this decision, I have considered the following:
· the application, reply and supporting documentation;
· MAI Act specifically Division 3.3 of the–Weekly payments of statutory benefits to injured persons;
· Schedule 1–Definitions relating to earnings for purposes of weekly payments of statutory benefits under Division 3.3;
· Schedule 2(1) (a)– relating to the amount of earnings for purposes of weekly payments of statutory benefits under Division 3.3;
· Clause 4.42 of the Motor Accident Guidelines (version 7), and
· Motor Accident Injuries Regulation 2017, (the Regulation).

[2022] NSWPICMR 42

22 July 2022