Norwell v AAI Limited t/as GIO

[2022] NSWPICMP 510

DETERMINATION OF REVIEW PANEL

CITATION:

Norwell v AAI Limited t/as GIO [2022] NSWPICMP 510

CLAIMANT:

Jason Norwell

INSURER:

AAI Limited t/as GIO

REVIEW Panel

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Tai Tak Wan

DATE OF DECISION:

12 December 2022

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical dispute about whole person impairment (WPI) and treatment; review of Medical Assessor’s assessment of permanent impairment under section 63 of the 1999 Act; allegation of head/traumatic brain injury made years after the accident, injuries to cervical , thoracic and lumbar spine, right and left shoulders, right foot drop with altered gait and gastrointestinal upset; treatment in dispute includes domestic assistance, General Practitioner and neurological consultations and physiotherapy; Held – head injury investigated and two neuropsychological assessments suggest minimal effort applied during testing, no medical explanation for foot drop, gaps in medicine, lack of radiological findings; WPI assessed at 0% and some domestic assistance allowed in the first year after the accident; no matter of principle. 

DETERMINATIONS MADE:  

Issued under Part 3.4 of the Motor Accidents Compensation Act 1999

The Review Panel:

1.     Confirms the certificate of Medical Assessor Ian Cameron dated 12 January 2022 and certifies that the degree of Jason Norwell’s permanent impairment resulting from the injuries caused by the motor accident on 19 January 2015 is not greater than 10%.

2.     Revokes the certificate of Medical Assessor Ian Cameron dated 12 January 2022 and certifies that the claimant had an accident-related need for some domestic assistance from the date of the accident until the end of 2015.

A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

introduction

1. Jason Norwell (the claimant) was involved in a motor vehicle accident on 19 February 2015. He describes the circumstances of the accident in his claim form[1] as follows:

   “I was stationary at the intersection. The lights changed providing me with a green light. As I commenced to cross the intersection, I was about to enter the driveway for Warilla Grove [shopping centre]. The other driver struck my vehicle at 80 kms per hour, stating he was sorry but had been awake since 3.00am and did not see me.”

   [1] Page 650 of the bundle of documents lodged by the insurer on 15 July 2022 on behalf of both parties (the joint bundle). This bundle is document AD5 in the Commission’s electronic file.

2. Mr Norwell made a claim against GIO, the third-party insurer of the offending motor vehicle. GIO has admitted liability for the claim.

3. A dispute arose between Mr Norwell and GIO as to whether Mr Norwell is entitled to recover damages for non-economic loss. A further dispute arose between the two parties in relation to treatment provided or to be provided to Mr Norwell.

4. Those disputes were referred for medical assessment and on 12 January 2022, Medical Assessor Ian Cameron determined that:

   (a)    the claimant did not have a whole person impairment (WPI) of greater than 10% (in respect of the injuries referred to him for assessment), and

   (b)    none of the treatment in dispute was related to his injuries or was reasonable and necessary in the circumstances.

5. The claimant was dissatisfied with those assessments and sought a review of the decision by the Personal Injury Commission (the Commission).

6. The claimant’s application for review was accepted by the delegate of the President of the Commission and the President has convened this Panel to conduct the Review.

Legislative Framework

General

1. Mr Norwell’s claim and entitlements to damages are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act). Mr Norwell may be entitled to damages for both non-economic (non-pecuniary) losses and economic (pecuniary) losses.

2. Damages for non-economic loss are limited and restricted by the provisions in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.

   [2] The current maximum as of October 2021 is $590,000.

3. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].

   [3] See s 132 and s 44(1)(c) of the MAC Act.

Permanent impairment assessment

1. Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).

   [4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.

2. The Panel will expand upon the provision of the AMA4Guides and the Guidelines in the Assessment part of these reasons.

Treatment

1. Section 83 of the MAC Act imposes upon insurers a duty to provide treatment, the need for which was caused by the injuries sustained in the accident. The insurer need only pay for treatment that is verified and is reasonable and necessary.

2. Damages for pecuniary or economic losses are determined in accordance with common law principles and include damages for past and future treatment and care (including gratuitous care) needs.

Dispute resolution

1. Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:

   “(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

   (b) whether any such treatment relates to the injury caused by the motor accident,

   (c) (Repealed)

   (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

   (e) (Repealed)”

2. Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor O’Neill’s in 2017), further medical assessments (such as Medical Assessor Cameron’s) and the review of medical assessments by this Review Panel[5].

   [5] Sections 61, 62 and 63 of the MAC Act.

3. Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).

4. If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).

5. The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).

6. Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Assessment under Review

1. The claimant has been previously assessed by a number of medical assessors as follows:

   (a)    Medical Assessor O’Neil on 7 July 2017 assessed the claimant’s WPI at 5% in respect of injuries to the head, neck, thoracic and lumbar spine;

   (b)    Medical Assessor Stern on 15 August 2017 was asked to assess an optic nerve injury. He determined the optic nerve was not injured in the accident and therefore there was 0% WPI;

   (c)    Medical Assessor Barrett on 8 September 2017 assessed the claimant’s WPI in respect of an adjustment disorder with depressed and anxious mood at 5%;

   (d)    Medical Assessor Julian Parmegiani on 27 November 2019 undertook a further medical assessment and determined there were no psychiatric injuries relevant to the accident and that the claimant did not therefore have a WPI for any psychiatric injuries, and

   (e)    a Medical Review Panel (Medical Assessors Newlyn, Mason and Samuels) considered Medical Assessor Parmegiani’s assessment and on 20 June 2020 found that the claimant did not have a clinical psychiatric diagnosis or disorder relevant to the accident and that he did not have an adjustment disorder with depressed and anxious mood.

2. Medical Assessor Cameron was asked to assess the claimant’s WPI of the following injuries[6]:

   (a)    head / traumatic brain injury – amnesia, confusion, loss of memory, difficulty concentrating, intracranial hypertension, migraines, headaches (resulting in need for spinal tap);

   (b)    cervical, thoracic and lumbar spine soft tissue injury;

   (c)    right shoulder – soft tissue injury, dislocation, Hills-Sachs deformity and bursitis;

   (d)    left shoulder – soft tissue injury;

   (e)    right lower extremity – foot drop and altered gait, and

   (f)    gastrointestinal – diarrhoea, constipation and haemorrhoids secondary to medication use.

   [6] It is not clear who framed the description of injuries but they have been copied from Medical Assessor Cameron’s certificate.

3. In terms of the treatment disputes, Medical Assessor Cameron was asked to assess:

   (a)    domestic assistance – whether any of the claimant’s care needs were related to the car accident and whether 6-10 hours a week of past care was reasonable and necessary;

   (b)    domestic assistance – whether any care needs into the future are related to the car accident and whether 0-11 hours a week for various periods and for the remainder of the claimant’s life is reasonable and necessary;

   (c)    general practitioner (GP) consultations – whether 0-4 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and reasonable and necessary;

   (d)    neurological consultations – whether 0-4 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and reasonable and necessary, and

   (e)    physiotherapy consultations – whether 0-12 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and reasonable and necessary.

4. Medical Assessor Cameron noted the claimant has had extensive treatment in the seven years since the accident and that he had long-standing pain and had seen a pain management consultant. Medical Assessor Cameron was given a history that in the year before his assessment, the claimant’s back pain had caused a deterioration in his walking, and he had neck pain with movement and shoulder restriction. The claimant said he had used a walking stick for many years and wore an ankle splint. Medical Assessor Cameron records “Mr Norwell did not have specific complaints about his digestive system”.

5. Medical Assessor Cameron administered a “mini-mental” test and suggested the result was inconsistent. Medical Assessor Cameron also recorded inconsistent movements in the neck, both shoulders and the lower back which the claimant said were due to pain.

6. Medical Assessor Cameron diagnosed soft tissue injuries and said that the claimant did not sustain a traumatic brain injury. He found no neurological impairment to explain the claimant’s “foot drop”.

7. Medical Assessor Cameron was not satisfied there were any shoulder injuries and that the there was no assessable impairment due to inconsistency of movement.

8. While he supported Mr Norwell’s intermittent gastrointestinal symptoms suggesting they might be due to medication use he did not find any causal connection between medication and the development of haemorrhoids.

9. Medical Assessor Cameron certified 0% WPI for the soft tissue injuries to the neck, lower back and gastrointestinal issues.

10. In terms of treatment Medical Assessor Cameron said, “Mr Norwell has a chronic pain syndrome and functional neurological disorder. Domestic assistance and further health consultations are not appropriate in this situation and are likely to further escalate the level of Mr Norwell’s disability”.

Submissions

Claimant’s submissions in support of the further assessment

1. The claimant’s early submissions[7] did not seek further assessment of the ophthalmic injury but that the neck, back, head and psychological injuries should be reassessed. The claimant relied on the chronology of treatment and says at [25] that he is reliant on a walking stick in late 2018 and has developed a right shoulder injury.

   [7] Dated 18 July 2019 and found at page 32 of the joint bundle.

2. The claimant’s submissions allege the deterioration of the claimant’s injuries[8]. Mr Norwell relied on a change to his medication, the diagnosis of depression and related treatment, the consultations at the Illawarra Brain Injury Service (IBIS) and the shoulder treatment and investigations.The claimant also relied on the diagnosis of traumatic brain injury, foot drop, steroid injections to the right shoulder, shoulder radiology and the fact that he was now reliant on a walking stick.

   [8] These submissions are dated 22 December 2020 and are found at page 661 of the joint bundle.

3. The claimant documents at [13]-[17] right shoulder complaints starting with his complaints of right trapezius stiffness on 21 February 2015. He notes his claim form (March 2015) includes a right shoulder injury. He then notes complaints of right shoulder pain to the Illawarra Shoalhaven Chronic Pain service in January 2017, July 2018 and March 2019 and that there are other documents from 2017 and 2018 which document shoulder pain. The Panel notes the claimant’s submissions do not identify any documented right shoulder complaints between March 2015 and January 2017.

4. The claimant then submits at [18] that his right shoulder symptoms have arisen or developed because of his use of a walking stick from late 2018. He points to the diagnosis of a Hill-Sachs deformity and mild subdeltoid bursitis and the Dapto Medical Centre notes which reveal no pre-accident shoulder complaints. He submits at [26] that motor accidents are a common source of dislocation.

5. Mr Norwell also notes his shoulder impairment is “quite severe” and that he has had three ultrasound guided steroid injections into his right shoulder on 7 November 2019, 12 December 2019 and 22 April 2020 and that he still suffers pain “as a result of direct injury to the right shoulder”.

6. In terms of the left shoulder the claimant says this should also be included as “he has sustained injury to both shoulders caused by radiating pain from his neck into his left and right shoulders and this pain is exacerbated with use of his walking stick”. The Panel notes that pain does not cause injury. Pain is a symptom of injury and that a neck injury can cause both neck pain and, if there is damage to a cervical nerve root, that pain radiating into the shoulder.

7. The claimant also argues that his neck and back condition has deteriorated leading to his use of a walking stick starting in 2018 which warrants the further assessment and that he has been diagnosed with a brain injury and that this needs to be assessed.

Claimant submissions in support of the review

1. The claimant relies upon his statement, and the statement of his wife, to support an allegation that the assessment by Medical Assessor Cameron took only 10 minutes and that this was insufficient time to properly examine the claimant, take a proper history and address the alleged inconsistencies.

2. The claimant also says that the mini-mental state examination administered by Medical Assessor Cameron was incomplete, inconsistencies were not put to him, and that the Assessor expressed the view he was living independently which he says he was not.

3. Other complaints were made in respect of the assessment including the testing of the claimant’s reflexes and the Medical Assessor’s failure to ask for the claimant’s scans which his wife had bought along with her to the assessment.

4. The claimant noted the Medical Assessor referred to selective medical records and reports but not the claimant’s experts or the treating GP’s reports. The claimant also says the Medical Assessor’s reasons concerning the treatment and care disputes did not explain the decisions made.

Insurer’s submissions

1. The insurer says[9] that the original medical assessment application from 2017 referred to neck, back, optical, head and psychological injuries and that there was no reference to left or right shoulder injuries.

   [9] The insurer’s submissions in support of the review are dated 5 February 2021 and are found at page 1,440 of the joint bundle.

2. The insurer argues that the claimant did not sustain any brain injury at all or that if he did it was a mild brain injury from which he has recovered. The insurer refers to criteria for the diagnosis of traumatic brain injury which it says have not been met.

3. The insurer argues at [32]-[35] that the claimant’s right shoulder was not injured in the accident and that there is no causal connection between the February 2015 accident and the 2018 development of right shoulder pain. The insurer also argues that the left shoulder has no symptoms of impairment and should not be included in any assessment in any event.

4. The insurer takes issue with the claimant’s suggestion that his neck and back have deteriorated and that he needs a walking stick as a result. The insurer notes at [36] the only scans made available are CT scans of the lumbar and cervical spine dated 16 September 2016 and there are no new scans to suggest any deterioration.

Procedural matters

1. The Panel met on 25 May 2022 to consider the nature of the dispute and the injuries in issue, the documentation available and whether a re-examination of the claimant was necessary.

2. The Panel directed the parties to confer with a view to identifying any injuries the parties agreed did not have to be assessed and any treatment modalities that did not need to be assessed.

3. The Panel also noted the extensive submissions in respect of the claimant’s alleged head and brain injury and drew the parties’ attention to cls 1.160 and 1.1.64 of the Guidelines and the parties were invited to provide further submissions.

Claimant’s further submissions

1. The claimant uploaded to the portal a letter with attachments which suggests there was no face to face, audio or visual conference between the parties in compliance with the directions but an exchange of emails with neither party making any concessions in relation to treatment or injuries.

2. The claimant provided no additional submissions in particular no submissions with regards to the interpretation or application of cls 1.160 and 1.164.

Insurer’s further submissions

1. The insurer provided further submissions on 18 July 2022 in relation to cls 1.160 and 1.164 and says:

   (a)    there is no evidence of any diagnosed communication disorder or permanent or episodic disturbances of consciousness;

   (b)    the evidence of Dr Cusack, Dr Batchelor and Medical Assessor Samuell do not support any finding of integrative functioning abnormalities, and

   (c)    there is no evidence of emotional or behavioural disturbance and the Medical Review Panel (comprising three psychiatrists) did not diagnose any psychological condition.

2. The insurer also submitted that there is no evidence of a significant impact to the head and no significant, medically verified abnormality or brain imaging abnormality.

Panel’s decision

1. The Panel determined that a re-examination of all injuries and re-consideration of all treatment in dispute would need to occur in the light of the parties’ failure to come to any agreement which might narrow the issues in dispute.

Review of the Evidence

General observations

1. The joint bundle has more than 2,100 pages.

2. The Panel notes the remarks of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[10] at [63]:

   “The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”

   [10] [2022] NSWSC 1079.

3. While the Panel has considered all the documentation filed in this matter, the Panel does not propose to refer to each and every document in these reasons, only those which the Panel (particularly the medical members of the Panel) consider are clinically significant to the decisions that it has made.

4. At the outset the Panel notes that the claimant has included his pre-accident GP’s notes from the Dapto Medical Centre (to 2012). The Panel notes there are no complaints of musculo-skeletal problems apparent in these records.

Claim form

1. The claimant signed his claim form as true and correct on 10 March 2015. He denied any previous incidents, accidents or relevant conditions and listed his injuries as neck, head, vision and right shoulder.

2. Dr Michelmore signed the medical certificate on 17 March 2015[11] having examined the claimant on 21 February 2015 and 17 March 2015. The doctor diagnosed musculo-skeletal neck and head pain, right side of neck and noted the claimant complained of altered vision. Dr Michelmore said the claimant had been a patient of the practice for one month only[12]. There was a pain diagram completed shading the right side of the back of the head and over the right trapezius towards the right shoulder as follows:

   [image unable to render]

   [11] Page 1,776 of the joint bundle.

   [12] Other records suggest that Dr Michelmore was a new GP and has only seen the claimant since the accident.

3. A letter from the claimant’s solicitor to GIO on 8 September 2017, some two and a half years after the accident[13] identified two additional physical injuries, the thoracic spine and lumbar spine, as well as anxiety.

   [13] Page 1,779 of the bundle.

4. There is a statement from the claimant’s parents[14] confirming their view of their son is a changed man since the accident and that they have cared for him and driven him everywhere. They say that Mr Norwell’s acceptance into the National Disability Insurance Scheme (NDIS) is indicative of his problems “as a direct result of the car accident”.

   [14] At page 1,386 of the joint bundle.

5. The claimant’s statement[15] documents his pain and treatment. He says, for example, he has poor memory, impaired cognitive abilities, rashes on his back from sitting and lying down all the time. He adds that the hair on his head has thinned because of stress caused by the accident, and that he has used a walking stick “since the accident”. The Panel notes this history is incorrect. In the claimant’s detailed chronology, the claimant says he commenced using the walking street in late 2018, three to four years after the accident. He says he is always in pain.

   [15] At page 1,388 of the joint bundle.

6. Mr Norwell says he needs to be near a bathroom because he fears he will soil himself. He says he has erectile dysfunction. While the Panel notes it has been referred a dispute about gastrointestinal issues, the Panel has not been referred any issue of erectile dysfunction.

7. The claimant says he cannot drive, he has difficulty sleeping and his eyes are affected by bright lights. He also complains of nightmares about the spinal tap and migraines four to five times a week more so in colder weather.

8. The claimant says he cannot walk across the road (to his children’s school) and he has to get his father to drive him across the road.

9. The claimant says before the accident he did almost all of the domestic chores and that since the accident he cannot do anything and because of this has son Max had to go and live with his mother. He says he has been unable to do anything for his children. He says he gets significant assistance from NDIS including help around the home and garden and that he has an electric scooter.

Treatment providers

1. The claimant provided a very detailed chronology of relevant pre-accident matters, the accident and the claimant’s post-accident treatment[16]. The chronology is completed for the claimant’s case and therefore does not include any references to the insurer’s material or anything adverse to the claimant’s case such as the findings of Mr Jason Cusack. Another example of the selective nature of the chronology is that it does not include the note of Friday 22 June 2018 where the claimant complained of stiffness and pain in the right shoulder which he says he has had since the car accident. On examination by Dr Michelmore, the claimant had a full range of motion at the shoulder joint with no impingements on passive movement but that on active movement “Jason holds right arm flexed at elbow and limits active flexion and abduction”. Dr Michelmore suggests he does not have a shoulder joint issue therefore there was no indication for shoulder X-ray.

   [16] The first version of this is up to 12 July 2019 and the second version lodged with the application form is taken up to April 2020.

2. The Panel does not intend to recite the entire history but the significant features of it are listed below.

   (a)    the claimant played cricket from 1977 for 35 years. While at school he played rugby league;

   (b)    his first job was as a kitchen hand at Red Rooster in 1986 and then he completed three months with the Navy in 1988 and a further three months in 1992;

   (c) between 1988 and 1992, and the claimant had a variety of labouring jobs and from 1992 to 1995 he worked as a labourer with the Steelworks and then from 1996 to 2000 he worked in a variety of occupations before attending a number of training courses designed to assist him into work (e.g. customer service) before getting his first aid certificate in October 2000 and certificates for the responsible service of alcohol and responsible conduct of gambling in 2001 after which he worked for three months at the Albion Park Bowling Club;

   (d)    there is no record of any employment between 2001 and the date of the accident but during that time the claimant’s son Max who I said to have Attention Deficit Hyperactivity Disorder (ADHD) is born, there is a custody dispute and the claimant becomes Max’s carer. Also in this time the claimant marries his wife Alma and he and his wife have two children;

   (e)    the claimant has a routine eye test in June 2012 which was normal;

   (f)    the claimant saw Dr Michelmore two days after the accident complaining of neck and right sided head pain with a headache and right sided eye problems. The eye issue was followed up with an eye test at Specsavers and glasses were prescribed;

   (g)    the claimant next saw Dr Michelmore on 17 March 2015 complaining of right sided neck pain, a glassy feeling in the right eye and is referred for physiotherapy. The Panel notes it does not appear the claimant had any physiotherapy either privately or pursuant to a care plan and through the Medicare system;

   (h)    the claimant attends a chiropractor on 21 September and 18 November 2015;

   (i)    the claimant attended ophthalmologist Dr Delaney on 19 November 2015 and he identified bilateral papilledema and requested an urgent MRI. The MRI demonstrated an issue with the sheath of the optic nerve and an appointment with a neurosurgeon was recommended. The claimant attended Associate Professor Jaeger on 11 January 2016 complaining of chronic neck and lower back pain and headaches since the date of the accident and at a further appointment the claimant was tentatively diagnosed with idiopathic intracranial hypertension and he was referred for a lumbar puncture;

   (j)    on 3 March 2016 the claimant saw Dr Michelmore for follow up of neck pain and complains of continued neck and back pain. He could not recall the names of his doctors and was referred for physiotherapy. The claimant had seven sessions of physiotherapy with further consultations with Dr Michelmore before a lumbar puncture on 31 May 2016 which was unsuccessful as the claimant had problems lying still due to back and knee problems. The claimant complained about the procedure and on 25 June 2016 said he felt a “stinging / vibrating sensation in his lower back since the lumbar puncture”;

   (k)    the second lumbar puncture was performed on 26 July 2016 and after this his headaches improved however the claimant’s neck and lower back pain persisted with the claimant reporting to Dr Michelmore on 16 September 2016 that his back locks up. CT Scans undertaken show “mild to moderate degenerative spondylosis in the mid and lower back” with a lumbar disc issue at L3/4. Following this there are a number of attendance on Dr Michelmore for back pain with no mention in the chronology of neck pain at this time;

   (l)    the claimant attended Port Kembla Hospital for pain management in April and May 2017 complaining of neck, right scapular, lower back and thoracic spine pain constant but worsening over time with stabbing, numbness, stinging, aching pain in the legs. He was diagnosed with chronic pain;

   (m)     in May 2017 the claimant consulted Dr Michelmore complaining of depression and was prescribed an antidepressant which had no effect and the medication was changed. Between then and December 2017 the claimant attended Dr Michelmore for back pain. On 1 November he requested a disability parking permanent because his back condition was deteriorating. The Panel notes the form[17] mentions back pain only;

   [17] Page 316 of the bundle.

   (n)    in February 2018 the claimant was mobilising with a walking stick and complaining of memory issues otherwise during this period there are complaints of back pain and depression;

   (o)    on 25 May 2018 the claimant said his neck and back were deteriorating with the cooler weather and on 22 June 2018 the claimant complained to Dr Michelmore of stiffness and pain in the right shoulder which he says he has had since the car accident;

   (p)    due to increasing symptoms of depression, on 10 July 2018 Dr Michelmore developed a mental health care plan;

   (q)    in August 2018 the clamant had a normal MRI of the brain and cervical spine and attended Wollongong Hospital for a consultation with Dr Fuller complaining of numbness in the feet and right hand with stinging throbbing pain in the thighs, ongoing memory issues, bowel issues, mobility issues and the like. The claimant had moderated his alcohol consumption but was still smoking up to 30 cigarettes a day;

   (r)    Mr Norwell then attended the Port Kembla Hospital’s brain injury service clinic on 5 September 2018 complaining of shoulder, neck and back pain, pain in his legs, sleeping difficulties, memory loss, chronic headaches, difficulty sleeping, depression and anxiety (the report from Dr Wyatt will be referred to below);

   (s)    the claimant continued to consult Dr Michelmore for pains and depression and on 23 October 2018 she writes to the NDIS Review Tribunal in support of his application citing all his problems are due to the accident[18]. The outcome appears to be that the claimant received a grant of $70,000 to fund treatment;

   (t)    on 13 November 2018, the claimant had neuropsychological testing with Mr Jason Cusack and there were further attendances on the Port Kembla and Shellharbour hospitals and other for treatment of his depression and back pain;

   (u)    the claimant is reported to have stopped driving in late 2018 or early 2019;

   (v)    he commences hydrotherapy in January 2019 and until the end of the chronology is having hydrotherapy and continued appointments for pain management;

   (w)   the claimant was granted the disability support pension on 14 June 2019 having been supported by psychologist Marcelo Di Martino[19];

   (x)    after this, the claimant continued to attend Port Kembla Hospital for hydrotherapy to address his chronic neck, back and right shoulder pain, see his GP for medication and monitoring, and

   (y)    the sub-deltoid injections he has had are reported as not having had any effect.

   [18] The claimant also received support from Marcelo Di Martino psychologist in a letter dated 21 November 2018 found at page 76 of the bundle.

   [19] See page 74 of the joint bundle.

3. The claimant’s physiotherapist, in a report dated 15 December 2016[20] refers to pain in the neck and lumbar spine with restricted motion in both regions and headaches. The Panel notes there is no reference to shoulder or leg pain in this report.

   [20] Page 222 of the bundle.

4. A note from the chiropractor Jeffrey Threlfo dated 8 December 2016[21] refers to a restriction of movement in the neck and he comments on an X-ray of the cervical spine. He says that the claimant “presents with spondylitis – marked in cervical and lumbar” and there is no mention of shoulders or legs. There are two questionnaires from the chiropractor (page 2171) which suggest the claimant was only treated for neck pain.

   [21] Page 224 of the bundle.

5. Professor Jaeger, neurosurgeon has provided document including a short letter dated 20 January 2016 confirming the presence of the papilledema and slightly enlarged blind spot with restricted fields. The claimant was discharged from his care on 8 August 2016.

6. In a report dated 3 March 2016, Dr Fuller, neurologist, wrote to Dr Jaeger noting that the claimant did not think he lost consciousness in the accident and that symptoms of dizziness had been improving along with headaches which were still present but were varying in intensity.

7. There is a referral from Dr Michelmore to the Pain Management Clinic at Port Kembla Hospital with an attached summary of all her consultations up until that date (29 November 2016).

8. Dr Fuller wrote to the claimant’s GP on 20 August 2018[22] about the claimants “suspect traumatic brain injury and traumatic optic nerve damage”, headaches, traumatic brain injury effects and depression.

   [22] Page 615 of the bundle

9. She noted the EEG and brain MRI which were normal and that there was no evidence of acute axonal injury. She notes “injurious tobacco use” and that the claimant should stop smoking. The claimant complained of numbness in the feet and right hand and stinging throbbing pain in both thighs. He said he has ongoing memory and cognition issues and that his bowel motions are either constipated or the reverse which she considers may be irritable bowel syndrome.

10. The claimant was said to be using a walking stick because of lower back and right leg pain which was causing pain in the right upper limb and shoulder.

11. She considered his optic nerve and optic discs and said, “smoking and vitamin deficiencies can occasionally cause this picture”. She requested cardiovascular screening, EMG and nerve conduction studies, asked Mr Michelmore to monitor the claimant’s bowel function (she noted his smoking and alcohol consumption may have had a causative effect). She was waiting for the neuropsychological study from Mr Cusack.

12. Psychologist Di Martino diagnosed[23] the claimant with post-traumatic stress disorder and major depressive disorder and advised he needed support to maintain his functional capacity and live independently and he was said to require ongoing behavioural support to treat his posttraumatic stress disorder and depression. He noted no “significant improvement” in the three years he had been providing treatment.

    [23] His letters to Centrelink and NDIS are dated 21 November 2018 and are found at pages 74 and 76 of the joint bundle.

13. Dr Wyatt of the IBIS wrote a report to the claimant’s GP dated 3 October 2018. He has a history of a “very active and high functioning man” who has become “quite disabled, subsequently losing his job and becoming unemployed”. The Panel queries whether this history is accurate as the chronology provided by the claimant and his own history is that he had not worked for several years before the accident.

14. Dr Wyatt notes the claimant’s ongoing headaches and widespread chronic pain in the neck, back, shoulder and leg with severe post traumatic headaches. The claimant reported erratic consumption of medication alternated with alcohol for pain relief. The claimant told Dr Wyatt he did not take the antidepressant Amitriptyline every night because it causes constipation. Dr Wyatt also noted the claimant’s psychological issues. He provided Dr Michelmore with his plans for future medication changes and awaited the neuropsychological testing from Mr Cusack before providing further advice.

15. Dr Ediriweers, a psychiatrist with the IBIS wrote to the claimant’s GP[24] after receiving the neurologist’s report. He had a history of the claimant being the sole carer of his 16-year-old son at the time of the accident and that he “relinquished duties” because of the accident. The Panel queries this history noting other records refer to this child being “kidnapped” by his mother and the claimant having no contact with him as a result[25].

    [24] Dated 16 October 2018 and found at page 620 of the joint bundle.

    [25] GP note of  1 November 2017 – “Has had a very stressful time with his son Max being ‘kidnapped’ – not returned from his Mum after access visit. Ongoing saga re Max not being medicated appropriately. Biological mother has apparently coerced Max into say that he is ‘in fear of his life’ on returning to Jason. Police and courts involved. Ongoing issues.”

16. The claimant reported things were getting worse, he was getting more frustrated, life was getting more difficult, and medications were not assisting him.

17. Dr Ediriweers noted the claimant had reduced his drinking due to financial worries but was still smoking and more so than usual. He diagnosed “depression with psychotic symptoms” and recommended changes to medication and ongoing counselling. A second report dated 4 December 2018 noted an improvement in mood.

18. There is a report from Paul Stewart the community psychiatric registrar on 2 January 2020 noting the claimant had an adjustment disorder with depressive features transitioned into an ongoing depressive disorder, but he was the view the claimant does not have a posttraumatic stress disorder illness or a psychotic illness.

Relevant imaging studies and other Investigations

1. The medical members of the Panel reviewed the films and reports of the following investigations brought to the assessment by the claimant:

   (a)    14 October 2019 – X-ray and ultrasound right shoulder reported by Dr Eric Brecher showed a moderate to large sized Hill-Sachs deformity involving the posterolateral surface of the right humeral head, suggesting the sequelae of a previous anterior shoulder dislocation. The ultrasound showed mild subdeltoid bursitis.

   (b)    22 September 2020 – X-ray and ultrasound left shoulder reported by Dr Eric Brecher showed mild degenerative osteoarthritis of the left acromioclavicular (AC) joint. The ultrasound scan showed mild to moderate tendinosis of the supraspinatus tendon and probable subdeltoid bursitis.

   (c)    24 September 2020 – report by Dr Eric Brecher of the ultrasound guided steroid injection into the right subdeltoid bursa.

   (d)    12 October 2020 – report by Dr Eric Brecher of the ultrasound guided steroid injection into the left subdeltoid bursa.

   (e)    12 December 2020 – report by Dr Eric Brecher of a further ultrasound guided steroid injection into the left subdeltoid bursa.

   (f)    24 December 2020 – report by Dr Eric Brecher of a further ultrasound guided steroid injection into the right subdeltoid bursa.

   (g)    3 June 2021 – report of Dr Saif Abdulrazzaq Jamel concerning an ultrasound guided steroid injection into the left AC Joint.

   (h)    10 June 2021 – report of Dr Eric Brecher concerning an ultrasound guided steroid injection into the right AC Joint.

1. Overall, the examining Panel members agreed with the reports of the radiologists.

2. In addition, the Panel notes that on 30 April 2015 at the request of the claimant’ chiropractor, X-rays were undertaken of the claimant’s cervical, thoracic and lumbar spines and pelvis. No acute bony injury was seen at that time. The Panel notes that the claimant’s chronology of treatment suggests the first attendance on Dr Threlfo was 21 September 2015 which suggests either an error in the chronology or an error in the date of his X-rays. The Panel notes Dr Threlfo’s notes commence with a first attendance in September 2015 and therefore the Panel has proceeded on the basis that the claimant’s first treatment was in September 2015.

3. The Panel has also reviewed the report of the claimant’s CT scans of the cervical and lumbar spine[26] which the case chronology and the reports suggest were requested not by the claimant’s treatment team but by Dr Drew Dixon who provided a medico-legal report in support of the claimant’s claim. The Panel notes the report has a clinical history of “investigation of ongoing right trapezius and lower backache after RTA in February 2015”.

   [26] The scans are dated 16 September 2018 and are found at page 285 of the joint bundle.

4. The cervical spine CT scan showed “mild to moderate degenerative spondylosis of the mid and lower cervical spine”. The lumbar spine CT showed “mild degenerative spondylosis of the lumbar spine” with “moderate spinal stenosis located at the L3/L4 level due predominantly to the presence of a large posterior disco vertebral complex”.

Neuropsychological testing

1. Neuropsychological testing was undertaken on 14 November and 4 December 2018 by Jason Cusack a psychologist with the IBIS[27]. His report dated 10 January 2019 includes the following observations:

   (a)    after taking the post-accident history he considers the possibility of a “mild traumatic brain injury with post concussive symptoms” rather than anything more serious;

   (b)    after the claimant gave a history of the deterioration of his functioning, Mr Cusack says this “is not typical for mild traumatic brain injury” however he does suggest that post concussive symptoms and mood, pain and adjustment to injury could be contributing to the claimant’s presentation;

   (c)    Dr Fuller did not think the claimant was focused on “financial or other maladaptive gain from his injury”, and

   (d)    the testing resulted in “atypical performance [which] unfortunately raised significant questions over the validity of the assessment as an accurate measure of Jason’s true cognitive capacities”.

   [27] Mr Cusack is a clinical psychologist and therefore can administer neuropsychological tests however he is not a neuropsychologist and therefore the Panel defers to Dr Batchelor. Mr Cusack’s report is at page 125 of the bundle.

2. Mr Cusack’s opinion was that the claimant may have sustained a mild traumatic brain injury and he “would expect the claimant to return to his pre-accident abilities within a year”. He considered that the claimant did not qualify for full engagement with the brain injury service but could participate by receiving some functional strategies to compensate for his memory deficits. He did raise the issue of sub-optimal effort or the possible exaggeration of symptoms.

3. Associate Professor Jennifer Batchelor, a neuropsychologist produced a joint medico-legal report dated 1 April 2021. Her executive summary on page 1 makes the following points:

   (a)    the evidence indicates that the claimant did not sustain a traumatic brain injury of sufficient severity to cause any permanent impairment of cognition, and

   (b)    the results of the testing revealed definite evidence of suboptimal performance.

Medico-legal assessments

1. Dr Home, an occupational physician provided the first medico-legal report in this matter on 30 November 2015, nine months after the accident[28].

   [28] Page 1828 of the joint bundle.

2. Dr Home was given a consistent history of the accident, the claimant hitting his head inside the car and the development of early symptoms of neck pain and headache. Dr Home was told by the claimant that he telephoned his insurer to lodge a claim for his car the day after the accident.

3. The claimant told Dr Home that he began to develop low back pain one week after the accident and that this pain has intensified. The claimant told Dr Home he had been having chiropractic treatment for his neck and there has been some improvement in his range of neck motion, but his pain had not improved.

4. The claimant complained of intermittent neck pain, which was also present most of the day, headaches, low back pain to the left, stiffness in the upper back and left upper shoulder girdle region.

5. He reported being able to lift his daughter for short periods and that he undertakes light food preparation, dishwashing and some cleaning and laundry and he assists with the shopping.

6. On examination there was asymmetrical restriction of neck movement, but a full range of active motion measured by goniometer in the right and left shoulder.

7. Dr Home diagnosed a soft tissue injury to the cervical spine, “no obvious complaint at the right shoulder” and there was no restriction of shoulder motion secondary to this neck complaint. He did not consider the lower back pain was caused by the accident on the basis that:

   (a)    there was no record of low back pain in the medical certificate attached to the claim form;

   (b)    there was no mention of lower back having been injured in the claim form completed by the claimant, and

   (c)    there was no mention of lower back pain in the notes of Dr Michelmore from 21 February and 17 March 2015 or her report of 8 April 2015.

8. Dr Home declined to assess WPI on the basis that the claimant’s injuries had not stabilised.

9. Dr Dragutinovich undertook an assessment of the claimant’s psychological condition for his solicitors on 26 August 2016[29]. He has a history of the accident with the claimant recalling what the driver said to him and what Mr Norwell said to the driver in return. The claimant also recalled a memory of being fearful because the impact occurred on the side of the car where his daughter usually sat in her child seat. The doctor reports no loss of consciousness and neck, head, thoracic and lumbar pain which was increasing despite pain killers. He notes the treatment and investigations the claimant received including the two lumbar spinal taps which the claimant described as necessary to ease the pressure of his “brain pushing on the back of my eyes”. This succeeded in stopping the “super headaches”.

   [29] Page 1,970 of the joint bundle.

10. The claimant complained of depression because all he does is move from the bedroom to the loungeroom and can no longer help his wife or play with his children.

11. Dr Dragutinovich diagnosed a specific phobia of driving and a chronic adjustment disorder and assessed the claimant’s WPI at 17%.

12. Dr Dixon examined the claimant on 8 September 2016 for the claimant’s solicitor[30]. Dr Dixon takes a history of perhaps a “transient loss of consciousness”. He noted the claimant was having difficulty looking after his child due to back pain and sciatic pain and neck pain and stiffness and so on.

    [30] Page 1,985 of the joint bundle.

13. The claimant complained of headaches, bilateral shoulder pain more so on the right, his neck and back pain disturbs his sleep, and he was having trouble elevating his arms. Dr Dixon obtained a history from the claimant of difficulty doing heavy chores, heavy lifting and heavy shopping. On examination the Panel notes mild restriction of movement in the shoulders.

14. Dr Dixon diagnosed as related to the accident the following:

    (a)    head injury with partial amnesia for the accident and oedema on the brain and optic nerve damage;

    (b)    neck strain injury;

    (c)    bilateral shoulder pain due to brachialgia (radiating pain due to a neck injury);

    (d)    low back strain, and

    (e)    post-traumatic anxiety and depressive disorder.

15. Medical Assessor Dixon assessed the claimant as having a 5% WPI for the neck (DRE II), a seatbelt injury to the right shoulder attracting a 5% WPI, mild impairment to the left shoulder of 2% and 5% for a lumbar spine injury (DRE II).

16. Dr Smith orthopaedic surgeon undertook an assessment of the claimant for the GIO on 20 October 2016[31]. He assessed DRE I for each of the claimant’s neck, thoracic and lumbar spines.

    [31] Page 1,868 of the joint bundle.

17. Dr Smith records current symptoms of headaches, neck pain and stiffness, lower back pain and pain in the legs with pins and needles.

18. On examination of the upper limbs, he observed “the shoulders move normally in range and rhythm” although there was restriction of movement but no sensory abnormality and global loss of power in all movements including the shoulder.

19. On examination of the lower back the claimant managed a straight leg raised to 90 degrees on both sides without difficulty and there were no neurological deficits in either limb.

20. From an orthopaedic perspective, Dr Smith thought the claimant was manufacturing physical signs and he noted he was not qualified to comment on the optic or central nervous system issues. He said, “the weakness he exhibits in the upper limbs is incompatible with any organic illness”.

21. The claimant’s solicitor obtained reports from Dr Bors an ophthalmologist in November 2016. He assessed the claimant’s WPI due to a loss of vision at 3%.

22. Dr Davies neurosurgeon provided a report dated 3 November 2017 to the claimant’s solicitor. He has a history of the claimant immediately feeling dizzy with neck pain and a headache and a strange feeling in his back. While the claimant said he could not remember much about the accident, Mr Norwell said he did not lose consciousness. Dr Davies noted the claimant’s complaints of ongoing pain and restriction in the neck with severe headaches which had reduced since his lumbar puncture. Dr Davies records pain around the right shoulder and left lower back with shooting pains down the front of both thighs and numbness in both calves. The claimant reported pain elevating his right arm because of right shoulder pain. On examination the claimant was only able to straight leg raise to 50 degrees in the right leg and 40 degrees in the left leg with pain.

23. Dr Davies diagnoses cervical and lumbar strain injuries and trauma to the shoulders with intracranial hypertension and visual disturbance.

24. He assessed 7% impairment for the claimant’s head injury, DRE II for the neck and back (5% each) and included an orthopaedic shoulder assessment and ophthalmic assessment (5%) and found a 26% WPI.

25. Dr Fraser wrote a report dated 21 March 2018 to the claimant’s solicitors. She undertook a comprehensive review of the documentation and noted the claimant’s headaches had settled but he was getting neck pain and there was a report of tinnitus and memory loss and confusion, neck and back pain, right shoulder pain and visual blur. She said the claimant has “some features suggestive of, but not diagnostic for intracranial hypertension”. She noted the lumbar puncture opening pressure was normal.

26. Dr Fraser noted the relationship of “significant head injury” to the development of exophoria and that the claimant’s exophoria is related to the accident. She recommended a “proper headache assessment by a specialist neurologist”.

27. Dr Zeman of the Vocational Capacity Centre undertook an assessment of the claimant on 19 February 2021. The claimant reported neck and back pain as well as pain in both shoulders. Mr Norwell said he had eye problems, right foot problems and leg problems worse on the right. He had a poor recall of the accident, vaguely recalled seeing a chiropractor, having a spinal tap and that he had cortisone injections. He said he had a “dislocation” of his shoulder which was put back into place and he had physiotherapy.

28. The claimant said the ankle brace and the walking stick helped and he denied going to a pain clinic.

29. Dr Zeman noted the claimant used a walking stick leaning heavily and that the claimant wore a right ankle splint which was not effective in the thongs the claimant was wearing. A mini mental test was administered, and the claimant scored 25 out of 30.

30. His back and neck and shoulders were examined. When being formally examined, “his neck movements suddenly reduced, and his neck was flexed and to the right”. During informal observation the claimant demonstrated “a much greater range of motion”.

31. Dr Zeman noted that shoulder movements were assessed and self-limited noting there was no muscle wasting or fasciculation or crepitus.

32. Dr Zeman diagnosed soft tissue injuries to the cervical spine and head, a resolved optic nerve injury, chronic pain and somatoform disorder.

33. Dr Zeman thought the prognosis was poor due to non-organic behavioural matters. He was of the opinion there was no care or treatment needed in the future.

Other DRS and Commission medical assessments

Physical assessments

1. Medical Assessor O’Neill assessed the claimant for the Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA) on 7 July 2017[32]. He was asked to assess the claimant’s head injury (amnesia, confusion, loss of memory, difficulty concentrating, intracranial hypertension), neck, thoracic and lumbar spine injuries.

   [32] His decision is found at page 623.

2. He has a history of the claimant hitting his head, having a “cracking headache” and developing a “weird” sensation in his neck and back. Medical Assessor O’Neill reports the claimant saw his “usual doctor” two days after the accident. The Panel notes Dr Michelmore was not at that time the claimant’s usual doctor and that she had seen him for the first time two days after the accident.

3. The claimant reported his main problems were his neck and back but mainly the back. The claimant also complained of right shoulder pain and constant pain over the left side of the back of the head near the neck.

4. Medical Assessor O’Neill accepted the claimant hit his head but was not serious enough to warrant an impairment of cognitive function under the Guidelines. He considered there was “a significant psychosomatic component” and considered there was a “clear discrepancy” between the signs and symptoms on examination of the lower back and the lack of corresponding medical notes. He noted the deterioration of symptoms.

5. The Medical Assessor found a DRE category I for the lower back, DRE category II for the neck (5%) and no impairment for the head injury.

6. Medical Assessor Stern undertook an assessment on 9 August 2017 of the claimant and issued an assessment of the claimant’s optic nerve injury.

7. He was given a history by the claimant of not being knocked out and that he got out of the car but had a “glassy-foggy feeling in the right eye” which lasted for several months and improved after the spinal tap in August 2016. Mr Norwell says he still gets this glassy vision a couple of times a week. Medical Assessor Stern also has a history of ongoing neck, right shoulder and lower back pain with daily tension headaches and bright lights causes headaches.

8. Medical Assessor Stern diagnosed an aggravation or exacerbation of a pre-existing constitutional exophoria or exotropia caused by the head injury and Mr Norwell’s neck injury. While he did not need reading glasses before the accident Medical Assessor Stern considers there was a temporary enhancement of his near sightedness but he would have got there in any event. He found there was no optic nerve injury and he noted Medical Assessor O’Neill’s opinion about the head injury.

9. Because the only injury listed was the optic nerve injury, the assessor did not certify an impairment of 3% for the aggravation/exacerbation of the pre-existing ocular imbalance.

Psychiatric assessments

1. Medical Assessor Barrett assessed the claimant’s psychological injury finding and adjustment disorder with depressed and anxious mood which attracted a WPI of 5%.

2. She has a history of the claimant smoking 30 cigarettes a day for the last 25 years, drinking before and after the accident (although more since the accident) and a history of gambling on poker machines once a week.

3. The claimant reported he had amnesia, confusion and memory loss immediately after the accident which has worsened and which he attributed to the after-effects of the accident and the medication he uses.

4. The claimant reported the first antidepressant he was given produced diarrhoea, so he ceased it.

5. Medical Assessor Julian Parmegiani undertook a further assessment of the claimant’s psychiatric injuries on 26 November 2019. He took a history of the accident, noted the claimant was a poor historian and reported persistent cognitive impairment including loss of concentration and poor memory and depression.

6. The claimant said he never left the house but then said he played poker machines at the local bowling club. He said his wife performs all the domestic duties. The Medical Assessor noted that the claimant was vague and confused about many things but was able to recall specific details of medico-legal assessments.

7. Medical Assessor Parmegiani considered Mr Norwell’s presentation was not consistent with Major Depressive Disorder, Post-traumatic Stress Disorder or an adjustment disorder.

8. He diagnosed a Somatic Symptom (Pain) disorder which “arose from personality traits and are perpetuated by external incentives associated with the sick role”. He says the motor vehicle accident did not cause this.

9. A Review Panel made up of Medical Assessors Newlyn, Mason and Samuels undertook a review of Medical Assessor Parmegiani’s decision. The Panel considered the documents before Medical Assessor Parmegiani and other documents which had not been provided to the Medical Assessor and they examined the claimant by skype.

10. The Panel noted Mr Norwell was vague about the accident. He thought he went to his GP the day after the accident. The Panel noted non-specific and vague psychiatric symptoms with a focus on the physical difficulties causing his problems.

11. The Panel considered the claimant’s symptoms were inconsistent with the documents and that he has not developed a recognised clinical psychiatric disorder. They were of the view he did not meet criteria for the diagnosis of Somatic Symptom Disorder or an adjustment disorder with depressed and anxious mood claimed by Mr Norwell

Examination findings

1. Mr Norwell attended the assessment on 4 October 2022 with his wife. She remained behind in the waiting area during the course of the examination. Medical Assessor Wan and Medical Assessor Gibson conducted the examination which concluded about two hours later.

History as given by Mr Norwell

Pre-Accident medical history and relevant personal details

1. Mr Norwell is 52-years-old, and unemployed. He said he is now in receipt of the disability support pension, but before the motor accident he was in receipt of the carer’s payment as his older son Max has attention-deficit hyperactivity disorder (ADHD).

Past health

1. The claimant denied any other accidents, injuries or other relevant conditions sustained before the accident and says that his past health was otherwise good.

2. He denied any history of allergy to medication.

Social history

1. Mr Norwell was born in Sydney and attended high school up to year 11. He did not sit the HSC exams, because he wanted to work. He said his school performance was average and his best subject was mathematics. His worst subject in school was science. He did not attend TAFE and does not have any trade licence or qualification.

2. After school he worked in different jobs in different places, usually as a casual worker or labourer, including in a “meat works”, a kitchen hand at “Red Rooster”, and a pastry worker. He could not tell the Medical Assessors when he stopped working, but he said he had to look after his son, who was from a previous relationship. He said he had tried the Navy and attended training twice but not successful in securing full time employment with them.

3. He lives with his wife and two of his children (a seven-year-old son, and an eight-year-old daughter). His older son Max has moved out of the home. He lives in a single storey house with five steps. He said he has to use the rail to walk up and down the steps.

1. Mr Norwell is a chronic heavy smoker (20 cigarettes a day), and a chronic drinker (six units of alcohol a day, although he does not drink every day). He admitted that he drank more alcohol before the accident. He denied using any recreational drugs.

2. Recently he has obtained services from NDIS.

3. He said he does not play sport or go to gym regularly.

History of the motor accident

1. Mr Norwell told the examining Panel Members that on 19 February 2015 he was the restrained driver of his car, with no passenger. He said he could not remember most details of the accident, because “it was a long time ago, and I have poor memory” and in particular he could not remember the time of the accident. He said while he was entering a driveway to a shopping centre, a car went through a red light and hit his car on the passenger (left) side, but his head hit something on the right side of the car. He got out of the car and exchanged details with the driver of the other car. He reported no loss of consciousness. Neither police nor ambulance came to the scene. He said his car was not drivable after the accident and was later written off. He was taken home by a passer-by. The Panel notes this history is consistent with the other histories provided to the doctors who have examined him for treatment and medico-legal purposes.

History of symptoms and treatment following the motor accident

1. Mr Norwell told the Medical Assessors that he had headache, poor memory, neck pain and back pain soon after the accident. However, he only consulted his GP two days after the accident. The Panel notes that according to the records of Dr Mitchelmore, on 21 February 2015, the claimant complained of neck stiffness, right sided headache and a “glassy feeling” in the right eye. Mr Norwell said he told the GP all his complaints, but he could not explain why poor memory and back pain were not recorded. Later Mr Norwell said that his back pain started after the failed lumbar puncture (in July 2016).

2. He said he was referred to see a chiropractor, who he could not name.

3. He recalled being referred to see an ophthalmologist, who noticed some papilledema[33] and that he was prescribed Diamox. He also mentioned being referred to see an optometrist soon after the accident in 2015.

   [33] Optic disc swelling caused by an increase in intracranial pressure.

4. An MRI brain scan was performed in November 2015, nine months after the car accident. Mr Norwell was referred to see a neurosurgeon in January 2016 and he had a lumbar puncture the first of which was not successful. The second lumbar puncture was successful, and according to report of a neurologist, the pressure was 17 cm H₂O, which the Panel notes is normal.

5. He was referred to see several specialists, although he could not name them:

   (a)    a neurologist in 2016 (according to support documents, probably Dr Fuller);

   (b)    a neurosurgeon in 2017 (probably Associate Professor Jaeger);

   (c)    a psychologist in 2016 (Dr Dragutinovich or Mr Di Martino);

   (d)    another neurologist in 2017 (probably Medical Assessor O’Neil);

   (e)    a psychiatrist in 2017 (probably Medical Assessor Barrett);

   (f)    the Illawarra Pain Clinic;

   (g)    the IBIS;

   (h)    a clinical psychologist, Mr Cusack, in January 2019, who undertook a psychometric assessment, and

   (i)    a neuropsychologist, Associate Professor Jennifer Batchelor in April 2021, who conducted a neuropsychological assessment.

Details of any relevant injuries or conditions sustained since the motor accident

1. Mr Norwell denied any history of significant accidents, injuries or other relevant conditions sustained since the accident.

Current symptoms  

1. Mr Norwell’s current complaints provided to the Panel are as follows:

   (a)    low back pain – aggravated by walking. He could not give pain scores such as a number out of 10 for the Visual Analogue Scale (VAS) and had difficulty in describing the characteristics of the pains he was experiencing;

   (b)    headache – he has two types of headaches: what he said were migraines with pain mainly in the right eye, and pain radiating from the neck;

   (c)    neck pain – it is a constant pain at the back of neck which is increased by movements of the neck;

   (d)    numbness in both legs;

   (e)    pulsating pain in his feet, more on the right side – sometimes (not all the time) he has weakness in the right leg and has to use a walking stick. Sometimes (again not all the time) he uses a splint for the right ankle;

   (f)    numbness in both hands;

   (g)    sometimes Mr Norwell has pain in his left wrist. He said he is going to have another nerve conduction test;

   (h)    his sleep is not good, both due to early waking and late sleeping and he has difficulty finding a good pillow;

   (i)    his memory is not good since the accident. He said sometimes he forgets what happened the day before. He also said his mood is bad since the accident;

   (j)    he told the Panel he is depressed and is always angry because of his chronic pain;

   (k)    he gets gastric reflux from to time;

   (l)    he is constipated from to time;

   (m)     he has no problem with his bladder function;

   (n)    he told the Panel he is independent in his personal hygiene care and most activities of daily living (ADL). However, his wife does most of the housework, although he said before the accident, he might occasionally help with some of the domestic duties;

   (o)    he informed the Panel he did not play sport before the accident and does not play sport now, and

   (p)    he does not have many friends and does not normally socialise.

Current and proposed treatment

1. Mr Norwell stated that he has been taking the following medication:

   (a)    Endep (amitriptyline) 50mg at night;

   (b)    Norspan patch 5mg patch weekly for the last two months (down from 10mg patch);

   (c)    Belsomra (suvorexant) for insomnia;

   (d)    Sumatriptan, for migraine, and

   (e)    Diamox which has been ceased.

2. The Panel notes that none of the above medications treat gastrointestinal upsets.

3. He said he is still regularly seeing his psychologist, psychiatrist and pain specialist.

4. He said he once received physiotherapy and hydrotherapy but has ceased them.

Findings on Clinical Examination

Clinical examination

1. Mr Norwell was orientated and alert. He was 177cm tall, and weighed 98kg, which gave a body mass index of 31 which is in the obese range.

2. Mr Norwell held a walking stick as he moved into the consultation room and as he left however he was observed to walk independently without it during the course of the examination. Mr Norwell also had a foot drop brace (similar to a “foot up” orthosis) on the right ankle. He said he has had foot drop since the failed lumbar puncture. However, when he was asked to walk without the ankle brace, he walked with a very strange gait similar to someone with right sided hemiplegia, but not someone in the Medical Assessor’s experience, with a foot drop. Later when the Medical Assessors tested Mr Norwell’s reflexes in his lower limbs, there were movements of the right foot and toes, suggesting that Mr Norwell does not have a foot drop and that his alleged altered gait was not related to any injury of any nerve root or the spinal cord.

3. Mr Norwell could dress and undress independently. However, he refused to try walking on his toes, or on his heels or in a heel-toe way. He could partially squat. He could get on and off the examination couch independently.

4. He said he is mostly right hand dominant, but he writes with his left hand.

5. Examination of the claimant’s head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia. Pupils were equal and reactive. Active movements of eyes were clinically normal in all direction, apart from that the right eye did not move fully when Mr Norwell was asked to look to the left side (there was a squint). Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs.

Mental state screening

1. Mr Norwell scored 28/30 in the Folstein Mini Mental test. He lost 1 point in short term verbal memory test, and 1 point in the date (he said “I don’t know” in answer to a question about the date of the examination).

2. Mr Norwell had no problem in copying figures including one 3-dimensional cube, but he had difficulty in copying another 3-dimensional cube. He had no problem in alternating sequences. He drew a clock showing the current time well. Regarding written arithmetic tests, he got the correct answer for addition, subtraction, but was wrong in multiplication and division. He gave good answers quickly for three differences and three similarities between apple and orange, fast and correct. Abstract thinking was normal.

3. In summary, there was no clinical cognitive impairment detected in the mental state screening tests. The difficulty in short term verbal memory and the date of examination may have been due to inadequate effort or Mr Norwell not paying particular attention during that part of the test. The difficulty of copying one 3-D cube while having no problem in another 3-D cube was puzzling in particular.

4. It is the clinical judgment of the examining Panel Members that the mini-mental type screening test is not sensitive enough to detect subtle change in mild traumatic brain injury, which ordinarily requires a comprehensive neuropsychological assessment. Therefore, the Panel considered in detail the neuropsychological assessment by Professor Batchelor and the testing undertaken by Mr Cusack.

5. Associate Professor Jennifer Batchelor’s neuropsychological assessment was documented in a report dated 1 April 2021 following an examination on 11 February 2021. Her report is comprehensive. She was provided with adequate details regarding the history of the accident and the claimant’s subsequent treatment, and she has documented at length the investigations and specialists reports she has considered and explains the battery of psychometric tests she performed. The tests done were well chosen and recognised by the Panel for the purpose of assessing traumatic brain injury. She has also provided the detailed data and results of the tests that were done.

6. The Test of Memory Malingering (TOMM) is a standard test assessing sub-optimal performance. The result of TOMM as well as her other observation showed clearly that maximum effort was not given by Mr Norwell during the assessment. She stated:

   “The findings on examination were not consistent with either the history of injury or Mr Norwell’s presentation. The information contained in available reports and that Mr Norwell was able to provide on interview clearly indicate that he is not amnesic, yet he scored in the range that would only be expected in association with a dense amnesia on at least some of the tests administered during the current neuropsychological assessment…”

7. She concluded that:

   “There is no objective evidence to indicate that Mr Norwell sustained a traumatic brain injury as a result of the subject accident. The information contained in his Personal Injury Claim Form provided no evidence of post-traumatic amnesia which signifies that a traumatic brain injury has be incurred. Although it is possible that he has rendered amnesic for a very brief period of time, it can be confidently concluded that he did not sustain a traumatic brain injury of sufficient severity to result in any permanent impairment of cognition. …”.

8. After considering the history, mental status screening results undertaken by the Panel, brain imaging, and tests results of Mr Cusack and Dr Batchelor, the Medical Members of the Panel are satisfied that there was no traumatic brain injury sustained in the accident resulting in any ongoing cognitive impairment.

Other injuries to the head area

1. The Medical Assessors note that Dr Dixon mentioned, “… His mother reported he had spina bifida occulta as a baby and a history of congenital strabismus (squint)…”. The squint was confirmed by the claimant during the examination.

2. The MRI of the claimant’s brain on 20 November 2015 showed a “possible slight distension of the optic nerve sheath”, but the treating neurologist Associated Professor Mattias, in his report dated 11 November 2016, opined that “… this may also be within normal limits. There are no other intracranial abnormalities. Importantly the MR venogram was normal without any significant venous outflow obstruction.”

3. The Panel notes that Medical Assessor Stern found no evidence of an optic nerve injury but did not undertake a final assessment of the idiopathic intracranial hypertension. It is the clinical judgment of the medical members of the Panel that the claimant’s head, eye and visual complaints were not due to brain injury causing “idiopathic intracranial hypertension”. The Panel notes that the diagnosis of raised intracranial pressure was not confirmed by the second lumbar puncture as the spinal fluid pressure was normal. The only sign of a possible “idiopathic intracranial hypertension” was mild papilledema observed by the ophthalmologist, but there were no significant visual field defects and no significantly enlarged blind spot found by that ophthalmologist.

4. The claimant has complained of headaches and migraines since the accident which in the clinical judgment of the medical members of the Panel are not related to any head or brain injury. They are not typical migraine headaches and may be due to the significant stresses in the claimant’s life (such as those concerning custody of his son) or the claimant injurious smoking levels and his drinking.

Cervicothoracic spine

1. Examination of the claimant’s neck showed mild tenderness over the right trapezius region, but no muscle spasm or guarding was observed by either Medical Assessor Wan or Medical Assessor Gibson.

2. There was mild but symmetrical restriction in active movements of the neck in all directions[34] as follows:

   [34] All measurements are those of active movements and all ranges of movements (ROM) of the spine were measured three times using a goniometer.

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	4/5 normal	4/5 normal	4/5 normal	4/5 normal	4/5 normal	4/5 normal

1. As the above table shows, there was no evidence of dysmetria (asymmetrical loss of motion).

2. There were no non-verifiable radicular complaints evident to the Panel on examination, and there were no signs of radiculopathy displayed during the course of the examination.

Thoracolumbar spine

1. Examination of the upper back showed no tenderness, muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits as per the table below.

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

1. There were no non-verifiable radicular complaints evident, and there were no signs of radiculopathy displayed during the course of the examination.

Lumbosacral spine

1. Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding was observed by Medical Assessors Wan and Gibson.

2. There was severe restriction in movements of the lumbar spine in all directions initially which was not consistent with the observation of the claimant in the room when he was not in formal examination, such as when he was undressing. Mr Norwell was presented with the inconsistency, but he did not respond. He was asked to give his best effort and the measurements were repeated three times.

3. While there were some restrictions in movements of lumbar spine, but there was no evidence of dysmetria. There was no evidence of any non-verifiable radicular complaints.

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	1/2 normal	1/2 normal	Normal	Normal	1/2 Normal	1/2 Normal

1. Straight leg raising was 30 degrees in the supine position on both sides with complaints of pain and 90 degrees in the sitting position with no complaints of pain. The Panel notes that this suggests a non-organic element to the claimant’s lumbar spine problems. If the claimant can sit with his legs outstretched in front of him at a 90 degree angle without pain, he should be able to have his legs at a similar angle while lying down.

Upper limbs

1. Examination of the upper limbs showed no gross muscle wasting on either side. Measurements of mid-arm circumference and mid-forearm circumferences were equal on both sides. Muscle power was grade 4/5 in both upper limbs, both proximally and distally, due to complaints of pain in shoulders. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.

2. Examination of the shoulders showed tenderness in the trapezius muscle region. Active movements of both shoulders were severely restricted initially in the formal examination, which was not consistent with the observations when not in formal examination (while dressing). Mr Norwell was presented with the inconsistency, but he did not respond.

3. The Panel notes that his GP, Dr Michelmore has made similar observations when examining the claimant’s right shoulder on 1 November 2017 and on 27 July 2018 she notes the claimant had a full range of motion passively but that the claimant held his right arm “very tense”.

4. The claimant was asked to give his best efforts and measurements repeated. There was not much improvement in the consistency thereafter[35].

   [35] All movements were active movements and measurements were repeated three times.

Shoulder (degrees)	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right	60,70,90	30,40,40	60,70,90	20,25,25	80,80,80	30,40,40
Left	60,70,90	30,40.40	60,70,90	20,25,25	80,80,80	30,40,40

1. Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.

2. Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.

Lower extremity

1. Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical in both lower limbs. There was no sensory impairment in both lower limbs.

2. Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. The Faber test was normal on both sides. Active movements of the hips were within normal limits:

3. Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive anterior-posterior or medial-lateral laxity, suggesting that the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting that the menisci were intact. Active movements of both knees were symmetrical and within normal limits.

4. Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.

Ankle (degrees)	Plantar Flexion	Dorsi-flexion	Inversion	Eversion
Right	30	20	15	10
Left	30	20	15	10

1. Examination of the abdomen and chest was unremarkable.

Abdomen

1. The claimant’s abdomen was palpated and there was no tenderness or mass evident. The abdominal examination was entirely normal.

Consistency of presentation

1. The Panel notes the inconsistency in the lower back and shoulder examinations. The Panel put the discrepancy between the range of motion measured during the formal examination and the range of motion demonstrated when the claimant was being observed dressing and undressing. The claimant remained silent and did not offer any explanation. The Panel notes other examinations have suggested the claimant’s movements (such as Dr Smith in respect of the shoulders) were inconsistent.

1. The Medical members of the Panel formed the view at the conclusion of their examination of Mr Norwell, that the claimant was not performing to the best of his abilities during the formal examination and that therefore the measurements obtained, and the result are not a valid reflection of the degree of the claimant’s impairment.

ASSESSMENT oF IMPAIRMENT

Head injury

1. The assessment of the nervous system, including the brain is provided for in Chapter 4 of the AMA4 Guides. Clause 1.160 of the Guidelines provides that in assessing any impairment under Chapter 4, the Panel must consider:

   (a)    aphasia and communication disorders;

   (b)    disturbances of mental status and integrative functioning;

   (c)    emotional or behavioural disturbances, and

   (d)    disturbances of consciousness and awareness.

2. In Mr Norwell’s case there was no evidence of aphasia or communication disorders. Mr Norwell was able to engage with the Medical Assessor and articulate his problems. There is no documented or clinical evidence of concussion or post-concussion syndrome or any disturbance of consciousness and awareness in the days or early weeks after the accident. The Panel notes in particular Dr Michelmore’s examination on 21 February 2015 “found Jason to be alert and oriented in time, place and person”.[36]

   [36] See Mr Michelmore’s report to GIO dated 8 April 2015 at page 240 of the joint bundle.

3. For an assessment of mental status impairment and emotional and behavioural impairment, the Panel also noted cl 1.164 of the Guidelines provides that there must be:

   (a)    “evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact”, and

   (b)    “one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post‑traumatic amnesia, or brain imaging abnormality”.

4. The report by the claimant of an impact from the left at 80km per hour has not been challenged by the insurer and the claimant has been consistent in his reports of a knock to the right side of his head on impact and his immediate complaint of pain in the head to his GP. The Panel is therefore of the view that cl 1.164(a) is met.

5. There is however no “significant, medically verified” abnormality which would satisfy cl 1.164(b). There is no documented loss of consciousness and no consistent history of a loss of consciousness given to the various doctors who have examined the claimant. There is no post-injury Glasgow Coma Scale score because the claimant did not attend a hospital or his GP in the immediate aftermath of the accident and emergency personnel did not attend. Of significance is that there is no documented post-traumatic amnesia. The claimant has been able to recall the circumstances of the accident, the conversation he had with the driver, his thoughts and fears for his daughter at the time of the accident and he was able to arrange for his vehicle to be towed and made a claim on his insurance the day after the accident. There is therefore no evidence of retrograde or anterograde amnesia related to the accident. This is not behaviour that the medical members of the Panel consider indicative of a brain injury. Finally, there is no evidence of brain imaging abnormality.

6. Mental status screening tests do not show objective signs of cognitive impairment, memory impairment or executive function impairment and the joint neuropsychological assessment showed no evidence of traumatic brain injury, based on the claimant’s suboptimal performance.

7. The Panel is satisfied that the claimant sustained a soft tissue injury or contusion to that part of the head which came into contact with the interior of the car, but that head injury did not cause a brain injury with any residual effects of memory impairment, cognitive difficulties.

Cervical spine injury

1. The classification of a neck injury as DRE II attracting a 5% WPI requires:

   (a)    Pain with guarding – there was none when Mr Norwell was examined or

   (b)    Non-uniform range of motion (dysmetria) – there was none. All movements were restricted but equally restricted or

   (c)    Non-verifiable radicular complaints defined in table 8 as:

   (i)symptoms (shooting pain, burning sensation, tingling) – Mr Norwell complains of pain in the neck, intermittent numbness in both hands and pain in his left wrist which could be considered as non-verifiable radicular symptoms, however

   (ii)the definition also required these symptoms to follow the distribution of a specific nerve root but with no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes – Mr Norwell’s complaints do not follow a specific nerve root distribution and he has no objective clinical findings.

2. A rating of DRE III requires radiculopathy which in turn requires dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs found on examination:

   (a)     loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 of the Guidelines) – all reflexes were normal when Mr Norwell was examined;

   (b)     positive nerve root tension signs (see the definitions of clinical findings in Table 8) – there were no such signs on examination;

   (c)    muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8) – circumference measurements were equal on both sides both below and above the elbow;

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – there was no muscle weakness on examination, and

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There was no such loss found on examination.

3. While the claimant does not satisfy either DRE II or III, considering the history and the claimant’s current complaints of neck pain, the Panel is satisfied Mr Norwell sustained a soft tissue injury to cervical spine in the accident. This injury is assessed as DRE I which attracts a 0% WPI.

Thoracic spine injury

1. There is no evidence of any injury to thoracic spine sustained in the car accident. If there was such an injury, the examination of the thoracic spine by Medical Assessors Wan and Gibson was completely normal.

Lumbar spine injury

1. The classification of a lower back injury as DRE II attracting a 5% WPI requires any of the following:

   (a)    Pain with guarding – while there were complaints of pain in Mr Norwell’s lower back, there was no guarding observed during the course of the examination.

   (b)    Non-uniform range of motion (dysmetria) – there was none. All movements were restricted but they were equally restricted (uniform).

   (c)    Non-verifiable radicular complaints defined in Table 8 as:

   (i)symptoms (shooting pain, burning sensation, tingling) which follow the distribution of a specific nerve root but with no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

   (ii)Mr Norwell’s complaints of back pain and pulsating foot pain could be considered as radicular complaints but they do not follow a specific nerve root distribution and he has no objective clinical findings.

2. A rating of DRE III requires radiculopathy which in turn requires dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs found on examination:

   (a)     loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 of the Guidelines) – all reflexes were normal on examination;

   (b)     positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8) – there were no signs during the straight leg raise test;

   (c)    muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8) – circumference measurements were equal on both sides both below and above the knee;

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – there was no muscle weakness on examination, and

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There was no such loss found on examination.

3. The Panel notes that there is no mention of lower back complaints in the medical certificate attached to the claim form, in the claim form itself, in the first two attendances on the GP and the chiropractor who treated the claimant at the end of 2015 treated him only for his neck complaints. The Panel notes the X-rays allegedly obtained in April 2015 but considers it significant that there is no corresponding note in the GP records or the chiropractor’s records concerning a referral or consultation at around this time.

4. It is possible the claimant sustained an injury to his lower back in the accident however, the Panel is of the view that the injury sustained was a soft tissue, musculo-ligamentous injury to his lumbar spine which would be categorised as DRE I resulting in a 0% WPI if the claimant’s current state was related to the accident.

5. The Panel’s primary view however is that it is not satisfied the claimant’s current back complaints and the constellation of other allegedly related symptoms that have developed since the accident are caused by the accident. The medical members of the Panel are of the view that the claimant’s complaints, in particular the need for a walking stick are out of proportion to the findings in the radiology and the usual progression of symptoms following an accident. The Panel is of the view that it is not medically plausible for the injury in 2015 to have caused the level of pain and symptomatology complained of by Mr Norwell. The Panel also notes there is no neurological injury causing a foot drop requiring a brace.

Right shoulder injury

1. Considering the history and circumstances of the accident, there was no evidence of dislocation of the right shoulder causing the Hills-Sachs deformity identified in the radiology. Mr Norwell did not complain of shoulders symptoms when he first saw his GP and no shoulder symptoms were recorded by Mr Norwell’s GP in the medical certificate dated 17 March 2015, one month after the accident. If Mr Norwell had sustained a right shoulder dislocation injury in the accident, the medical members of the Panel would expect there to be an immediate complaint of significant pain requiring presentation to a hospital or doctor.

2. The Panel notes the claimant’s claim form and the post-accident complaints and the gap in the notes before significant shoulder symptoms were recorded. It may be that the claimant had a seat belt injury to his right shoulder or some restriction of right shoulder movement as a result of the neck injury he sustained, however the Panel notes the measurements taken by Dr Home in November 2015. At that time the claimant had a full range of movement in both his right and his left shoulder. There is no plausible medical explanation in the Panel’s opinion for the development of accident-related right shoulder symptoms after November 2015. The Panel notes the GP’s records and

3. The claimant sustained a soft tissue injury to his neck. The claimant’s radiology suggests degenerative changes present in his spine which is not surprising given his employment history of labouring. In the light of the findings of Dr Home and the nature of the claimant’s neck injury, the Panel is not satisfied that the claimant’s current shoulder symptoms were caused by the accident.

4. The claimant alleges that in addition to sustaining a frank injury to his shoulder in the accident that he has also developed right shoulder problems as a result of the use of the walking stick which he says was necessary since the failed lumbar puncture and the development of his foot drop.

5. The Panel in finds there is no reason for the claimant to use a walking stick or the ankle brace. The Panel has not been taken to any report or record where any of the claimant’s treatment providers have prescribed the use of a walking stick or ankle brace and for the reasons set out below there is no medically plausible reason for the foot drop.

Left shoulder injury

1. Considering the history and circumstances of the accident, there is no evidence of dislocation of the left shoulder causing bursitis. Mr Norwell did not complain of left shoulders symptoms when he first saw his GP and no left shoulder symptoms were recorded in the medical certificate dated 17 March 2015, one month after the accident.

2. Again, if the claimant had dislocated his left shoulder the Panel would expect there to be the immediate complaint of severe pain and prompt attendance at a hospital or medical practice.

3. The Panel also notes the findings of Dr Home and the full range of left shoulder motion recorded by him in November 2015. The Panel is of the view that any left shoulder injury that could have been caused by the accident had recovered by the end of 2015.

4. Mr Norwell’s current left shoulder symptoms are, in the Panel’s view unrelated to the accident.

Right lower limb injury – foot drop and altered gait

1. Although the claimant claimed that he has a right foot drop following a failed lumbar puncture and is using a foot drop orthosis on the right ankle/foot, the Panel observed him to walk without the orthosis but in a strange gait similar to an odd hemiplegic gait, but not in a typical foot drop gait. There were no objective neurological signs to confirm the foot drop found on examination.

2. It is the clinical judgment of the medical assessors on the Panel that Mr Norwell’s “difficulty” in walking is most likely functional and non-organic, and not caused by any of the injuries sustained in the accident.

Digestive system – lower gastrointestinal symptoms

1. The claimant complained in his statement of a fear of soiling himself. He complained at the re-examination of occasional reflux and constipation.

2. The claimant has not reported any abdominal injury in the immediate post-accident records and the Panel has not been taken to any treating records to support the digestive complaints. The Panel notes that the GP records do not disclose a referral to a gastroenterologist or any endoscopy or colonoscopy referrals. There does not appear to have been any prescription addressing any gastrointestinal complaints.

3. The GP’s notes do reveal diarrhoea following the prescription of Pristiq in November 2017 which settled and there are later notes suggesting the Pristiq was tolerated without further symptoms.

4. It has been reported in the notes that the claimant is a heavy smoker and he drinks alcohol regularly and in significant amounts. The claimant reported poor diet. The medical members of the Panel consider these lifestyle factors are more likely to be the cause of any gastrointestinal upsets.

5. The medical members of the Panel are not satisfied that the vague symptoms from the claimant are indicative of an abdominal injury sustained in the accident. It may be possible that the claimant’s digestive system has been upset by the medication he has been consuming since the accident and in particular since the assessment by Dr Home but this appears to be only temporary. Due to the Panel’s views of causation of the claimant’s current physical symptoms, it is the Panel’s view that any medication consumed after the end of 2015 is not related to any injuries sustained in the accident and therefore any upper digestive system condition related to that medication use is not related to the accident.

6. Finally, the panel notes the claimant’s complaints of haemorrhoids. The records of the Dapto medical centre note that in June 2010 the claimant had a large prolapsed and thrombosed haemorrhoid. A haemorrhoid in a male is usually caused by straining associated with constipation. Constipation can be caused by the consumption of medication including pain medication. For the reasons set out above in relation to the claimant’s complaints of pain and the consumption of pain killing medication beyond the end of 2015, the Panel is not satisfied the development of haemorrhoids is related to the accident.

Summary of impairment assessment

1. Of the injuries referred to the Panel, the Panel’s findings are:

   (a)    head/traumatic brain injury – amnesia, confusion, loss of memory, difficulty concentrating, intracranial hypertension, migraines, headaches. Soft tissue injury to the side of the head, no traumatic brain injury and no impairment;

   (b)    spine:

   (i)cervical – soft tissue injury, impairment DRE I = 0%,

   (iii)thoracic – no injury and no impairment, and

   (iv)lumbar spine soft tissue injury – possible soft tissue injury, impairment DRE I = 0%.

   (c)    right shoulder – soft tissue injury, dislocation, Hills-Sachs deformity and bursitis –right shoulder dislocation and Hill-Sachs deformity not caused by the accident. Minor soft tissue injury caused by the accident resolved by the end of 2015 and not causing any impairment;

   (d)    left shoulder – soft tissue injury – there may have been an impairment as a result of his neck injury but any impairment ceased by the end of 2015;

   (e)    right lower extremity – foot drop and altered gait – no foot drop and no altered gait caused by the accident and therefore no impairment, and

   (f)    gastrointestinal – diarrhoea, constipation and haemorrhoids secondary to medication use.

2. A finding of 0% WPI does not mean that the claimant did not sustain an injury but that any injury sustained does not attract a WPI in accordance with the AMA4 Guides and the Guidelines.

Treatment and Care disputes

1. It is now seven years since the accident, and the claimant’s soft tissue injuries have in the view of the Panel settled or resolved. Mr Norwell has had a variety of treatment in the past including physiotherapy, chiropractic consultations, hydrotherapy, medication, counselling, injections and so on. The claimant has seen a pain specialist and been thoroughly investigated.

2. The Panels notes the findings of Mr Cusack (December 2018) and Associate Professor Batchelor (April 2021) in relation to the claimant’s alleged brain injury. The Panel notes that both Centrelink and NDIS appear to have determined the claimant’s access to Commonwealth benefits and funding before the findings of Mr Cusack and Associate Professor Batchelor were made available.

3. The Panel notes their physical examination does not support a diagnosis of foot drop and that the claimant’s shoulder movements were inconsistent.

4. Of significance to the Panel is that the claimant saw his GP twice in the first month after the accident and that there was no further attendance upon a health practitioner for six months until September when the claimant saw a chiropractor for neck pain. The claimant attended Dr Home in November 2015 by which stage the claimant was still complaining of neck pain, had developed back pain but had a full range of movement in the shoulders. The radiology does not support significant accident-related injuries.

5. The claimant’s alleged deterioration and development of a constellation of symptoms thereafter is not, in the clinical judgment of the medical members of the Panel a typical response to soft tissue injuries.

6. The Panel’s decisions in respect of the treatment disputes referred to it are as follows:

   (a)    domestic assistance – whether any of the claimant’s care needs were related to the car accident and whether 6-10 hours a week of past care was reasonable and necessary. The Panel is of the view:

   (i)some domestic assistance would have been required for gardening home maintenance, heavier cleaning duties and heavier shopping in the immediate period after the accident and therefore domestic assistance with these tasks is related to the accident, and

   (ii)on the basis of Dr Home’s report which suggests the claimant was able to do some things around the home, the GP’s records and the other medical evidence, the Panel is of the view that any care beyond the end of 2015 is not related to the accident.

   (b)    domestic assistance – whether any care needs into the future are related to the car accident and whether 0-11 hours a week for various periods and for the remainder of the claimant’s life is reasonable and necessary. The Panel is not of the view that the claimant has any ongoing accident-related need for care and assistance beyond the date of this assessment;

   (c)    GP consultations – whether 0-4 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and are reasonable and necessary. The Panel is of the view:

   (i)the claimant’s injuries have been thoroughly investigated to date, and

   (ii)that any further GP consultations are not needed as a result of the injuries sustained in the accident, and therefore any further GP consultations that do occur are not related to the accident and therefore are not reasonable and necessary.

   (d)    neurological consultations – whether 0-4 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and reasonable and necessary – the Panel notes the claimant has not seen a neurologist since Dr Fuller in 2016 and 2020 and that his nervous system and spinal injuries were assessed by her and Dr Jaegar. Noting the Panel’s findings with regards to the head injury and intracranial hypertension, the Panel is not of the view that the claimant has any need for neurological consultations in the future and therefore any such treatment would not be related to the accident;

   (e)    physiotherapy consultations – whether 0-12 consultations per year from the date of the medical assessment and for the remainder of the claimant’s life are related to the car accident and reasonable and necessary. The Panel notes that the claimant has had hydrotherapy and physiotherapy with no success to date. His symptoms have, in his histories failed to respond to treatment and he asserts have continued to deteriorate which is not medically plausible. The medical members of the Panel are of the view the claimant does not need any further physiotherapy treatment as a result of the injuries sustained in the accident and therefore any physiotherapy consultations after the date of this assessment would not be related to the car accident of February 2015.

1. As the Panel’s decision with respect to WPI is the same as Medical Assessor Cameron’s it follows that his certificate as to the degree of whole person impairment must be affirmed.

2. The Panel has however come to a slightly different view to Medical Assessor Cameron on the issue of one of the modes of treatment claimed (that is the claim for past domestic care and assistance). It follows that, as a result, Medical Assessor Cameron’s certificate concerning treatment must be set aside.