NRMA Insurance Ltd v Seymour

DETERMINATION OF REVIEW PANEL
CITATION:	NRMA Insurance Ltd v Seymour [2021] NSWPICMP 194
CLAIMANT:	Raymond Bruce Seymour
INSURER:	NRMA Insurance Ltd
REVIEW PANEL:	Principal Member John Harris Dr Shane Moloney Dr Thomas Rosenthal
DATE OF DECISION:	5 October 2021
CATCHWORDS:	MOTOR ACCIDENTS- The Claimant was injured whilst driving a tractor which was struck from behind and tipped over; Held - the parties accepted that the Review Panel (RP) could adopt the examination findings made by the original Medical Assessor; the Claimant was injured in a motor accident on 5 May 2006 and underwent shoulder surgery in December 2006; despite the absence of contemporaneous reports and detailed clinical notes, the RP was satisfied that the accident caused a shoulder tear that required surgery by reason of the manner of injury and temporal relationship with consulting and being treated by the specialist; QBE Insurance v Shah and AAI Ltd v McGiffen applied; the Claimant underwent a lumbar fusion in late 2009; the RP was not satisfied that the surgery was causally related to the motor accident because the pathology treated by the surgeon was pre-existing and not aggravated by the motor accident; the clinical notes were deficient, and the Claimant’s memory was poor due to subsequent cardiac surgery; RP satisfied that the Claimant suffered a soft tissue injury to the lumbar spine that would have resolved and that the subsequent fusion was unrelated injury; the Claimant had a pre-existing right knee injury where the patella and cartilage were removed; the removal of the patella and cartilage would have affected the biomechanics of the knee and inevitably led to further degeneration affecting loss of range of motion; the Claimant suffered a soft tissue right knee injury which would have resolved over a period of time; the present loss of range of motion was entirely due to the previous injury; Claimant reassessed at 1% impairment due to shoulder injury.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

Medical Assessment – Permanent Impairment

Review Panel Certificate

issued under Part 3.4 of the Motor Accidents Compensation Act 1999

following a review under section 63 as to

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:

The Panel revokes the certificate dated 10 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:

·        lumbar spine – soft tissue injury;
·        right knee – soft tissue injury, and
·        right shoulder – supraspinatus tear.

BACKGROUND

Mr Raymond Seymour suffered injury in a motor accident on 5 May 2006 whilst driving a tractor. Mr Seymour’s vehicle was struck from behind by another vehicle causing the tractor to tip and throwing him out of his seat.

NRMA Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr Seymour any damages under the Motor Accidents Compensation 1999 (the MAC Act).

The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

[1] See ss 57 and 58 of the Act.

Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

[2] Clause 1.2 of the Guidelines.

The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor David Gorman and dated 10 March 2021. The details of that assessment are set out later in these Reasons.

The application for referral of a medical assessment to a Review Panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]

[3] Section 63(7) of the Act.

On 3 June 2021, the delegate of the President referred the medical assessment to the Review Panel (RP) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 63(2B) of the Act.

Pursuant to s 63(3) of the MAC Act and Schedule 1, clause 14F(2) of the Personal Injury Act 2020, the RP consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

CONDUCT OF THE REVIEW

Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[5]
[5] Section 41(2) of the PIC Act.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.

All members of the RP had no previous involvement with this matter. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the Act.

The RP issued the following Direction to the parties (the first Direction) which required respective bundles of documents to be filed.
On 12 July 2021, the RP issued a further Direction which called for further documents.
On 15 July 2021, the RP issued a further Direction calling for submissions concerning any deduction of the lumbar spine and requesting the parties to address certain histories contained in the clinical records and reports and whether the right knee assessment is accepted.

On 11 August 2021 the parties were advised that the in-person examination was varied due to the COVID-19 pandemic.

On 31 August 2021 the RP determined to assess the right knee. The in-person examination was stood-over to allow the parties to make further submissions.

Following the conference with Mr Seymour, the RP issued further Directions on matters that could be accepted. We return to these Directions later in these reasons.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Gorman examined Mr Seymour and provided a Certificate dated 10 March 2021. The motor accident was described by the Medical Assessor in the following terms:
“On 5 May 2006, he was driving along in his tractor when he was struck from behind by a vehicle. The collision caused the tractor to tip on to its left side and for the slasher to break off from the tractor.
Mr Seymour reported that he injured his back, shoulder, and right leg at that time.”

Medical Assessor Gorman concluded that the motor accident caused low back bruising and right knee symptoms which worsened after the accident. The Medical Assessor noted that the right shoulder symptoms did not immediately arise after the accident but the “accident did cause shoulder symptoms to arise” noting that shoulder surgery occurred later that year. He also found that the motor accident accelerated the need for the surgery to the lumbar spine.
The Medical Assessor assessed the lumbar spine as DRE IV which included the impact from the fusion surgery. He concluded that the half of his current impairment in the lumbar spine is due to the “pre-existing pars defect and L5/S1 spondylolisthesis” and accordingly deducted one-half from the assessment of 20% resulting in 10% impairment.
The Medical Assessor noted the pre-existing patellectomy which would be contributing to the loss of extension of the knee and deducted one-half resulting in an assessment of 2% impairment.

The impairment of the left shoulder was deducted from the impairment of the injured right shoulder resulting in a 1% impairment. No allowance was made for the scarring resulting from the lumbar surgery and meniscectomy as the lumbar scar was generally hidden by normal clothing and not tender or tethered. The right knee scar was “pale and minor compared to the long anterior scar over the knee from the patellectomy”.
The Medical Assessor concluded that the Claimant suffered from a 13% permanent impairment as a result of the injury.

MATERIAL BEFORE THE REVIEW PANEL

The RP requested and were provided with two bundles of material provided by the parties.

Further material was provided by the insurer in response to the second Direction.
Mr Seymour otherwise provided a letter with attachments explaining why certain records were not available.

Medical records

The clinical records of Tamworth Base Hospital on the day of the motor vehicle accident refer to Mr Seymour’s admission for right leg pain in the right knee and ankle. The notes also refer to bruising and “painful over L lower lumbar spine”, no loss of consciousness and no injury to the head or chest.
Imaging undertaken at the Hospital on 5 May 2006 was to the right knee which showed the previous patellectomy with osteoarthritic changes and to the right ankle which was essentially normal with a plantar spur noted at the os calcis.

On 21 December 2006 Dr Haig Lennox, Orthopaedic Surgeon performed an arthroscopic glenohumeral debridement and acromioplasty with bursectomy to the right shoulder. The doctor also injected the right knee with cortisone. Dr Lennox noted a partial (less than 50%) thickness articular supraspinatus tear.

A CT scan dated 20 February 2009 refers to “low back pain since mid January” with tenderness at the L5/S1 level. Dr Khandelwal reported:

“Grade 1 anterolisthesis at L5/S1 vertebra is causing bilateral neural exit foraminal narrowing with probable mild compression of the exiting nerve roots. Their appearance has not significantly altered when compared to the previous study.”

The claimant was referred by his general practitioner to Dr Dandie by letter dated
3 March 2009. Dr Croaker wrote:
“Thank you very much for seeing Raymond Seymour who has problems with pain in his lower back since a tractor accident since 2005. Since then he has had intermittent pain in his lower back with occasional bouts of shooting pains down his legs causing difficulty walking and standing. These bouts of severe pain occur approximately 3 times a year.
This last bout began before Christmas when Ray received a jar to his back while on a boat.”
Nerve conduction studies undertaken on 3 September 2009 were reported by
Dr James Hughes as a normal study with no evidence of significant neuropathy.
Dr Gordon Dandie, Neurosurgeon, reviewed Mr Seymour on 21 September 2009 and recorded the following history:

“Mr Seymour reports he has had bad intermittent problems with his low back which seem to stem from a tractor accident approximately four years ago. Since that time Mr Seymour has intermittent back and bilateral leg pain.”

Dr Dandie opined that Mr Seymour had a spondylolisthesis at L5/S1 with bilateral radiculopathies and episodic back and leg symptoms with this structural problem in the low back.
The x-ray and MRI scan of the lumbar spine dated 24 September 2009 is reported by Dr George as showing a bilateral pars defect of L5 with forward slip of L5 over S1 of
7 mm.

The operation report from Westmead Private Hospital dated 19 November 2009 reports that Mr Seymour underwent a L5/S1 decompression and posterior fusion. On 11 January 2010 Mr Seymour reported to Dr Dandie that he was essentially free of back pain and walking 2 km day and night.

Dr Croaker reported in April 2010 that Mr Seymour remained active and the pain in the lower back was “generally better” although the back ached after a long day on the tractor. At that time Dr Dandie recorded a similar history and noted that the recent scans showed the instrumentation in good position and the grafts at L5 and S1 were consolidating.
An x-ray of the right shoulder dated 5 July 2010 is reported as showing early osteoarthritis in the glenohumeral joint. An ultrasound of the same date shows calcific tendinitis of the right shoulder and focal tendinosis in the right supraspinatus without evidence of a focal tear.

A CT scan of the lumbar spine dated 18 April 2011 records symptoms of pain in the low back and left leg.
An x-ray of the left shoulder dated 25 May 2011 notes increasing pain over four months, no evidence of dislocation with degenerative changes affecting the AC joint.
On 9 August 2011 Dr Bokor noted a recent left shoulder injury when Mr Seymour was “push starting an engine”. The MRI scan showed some tendinosis and degenerative changes in the acromioclavicular joint and the doctor diagnosed a frozen shoulder.
On 9 August 2011 Dr Dandie noted recurrence of low back pain and lower limb sensory changes and radiating leg pain. The doctor opined that the recurrent back pain and episodic leg symptoms were “on a background of severe lumbar spondylosis and previous lumbar fusion”.
In March 2012 Dr Croaker noted that the recent facet injection gave good relief from back pain, but that Mr Seymour had paraesthesia and burning in the legs. In April 2012 Dr Dandie noted a similar history and opined that the recurrent leg pains represented bilateral L5 radiculopathies.
Following further scans, Dr Dandie opined in May 2012 that the burning dysaesthesia was in the L5 distribution. Further investigations were recommended to rule out a cervical compression causing the symptoms and a neuropathic process.
Following further nerve conduction studies and an MRI scan of the cervical spine,
[8] Report dated 3 September 2012.
[9] Report dated 29 October 2012.
Dr Dandie opined that it was doubtful that the neck was the cause of the symptoms[8] although a small fibre neuropathy may be responsible.[9]
An x-ray of the right knee dated 29 January 2013 noted an absent patella, marked bony changes of tibiofemoral osteoarthritis with significant lateral joint space narrowing.
Mr Seymour consulted Dr Samiul Sorrenti on 5 February 2013 who reported the following:

“As you said in your note Raymond has a long history of problems with his rigid knee. A work related injury. He had an arthroscopy subsequently had a patellectomy. He has been having problems with his right knee on and off and it got worse. There is no doubt at this stage his right knee is a lot older then the rest of him and it is beginning to try and drag him to the age it would like him to be not the age Ray would like to be and the knee is bad enough to require knee replacement.”

Dr Sorrenti recommended an arthroscopy to “clean up as much damage as we possibly can”.
On 13 February 2013, Mr Seymour underwent a right knee arthroscopic chondroplasty and osteoplasty. Dr Sorrenti observed no patella, osteonecrosis trochlea and Grade IV chondral damage. Post operatively, Dr Sorrenti noted considerable improvement with better range of movement.[10]
[10] Report dated 2 May 2013.
A CT scan of the lumbar spine dated 4 April 2019 reports recurrent back pain. On review in July 2019 Dr Dandie opined that the back pain appeared to be coming from the L3/4 level where there was an anterior osteophyte. Further cervical scans were reported by Dr Dandie in October 2019 as being concerned that the neck was suggested of spinal cord compression.

Clinical notes – Norwest Health

There is a lack of detail in the clinical notes of the general practitioner.
The notes appear to date from 30 May 2006[11] when Mr Seymour was referred to
[11] The RP asked for prior notes. The Claimant’s solicitor advised by letter dated 13 July 2021 that enquiries with the Medical Practice reveal that they cannot be located.
[12] See Claimant’s solicitors letter dated 13 July 2021.
Dr Lennox. There is no referral letter or report from Dr Lennox in the clinical notes.[12]

In July 2006 Mr Seymour was prescribed medication for lowering cholesterol. In September 2006 there is a reference to voltaren. A series of appointments in early 2007 do not explain why Mr Seymour consulted the general practitioner.

On 16 October 2007 Mr Seymour was prescribed panadeine forte. He was probably again prescribed that medication in July 2008. The notes show that Mr Seymour first consulted Dr Croaker at that medical practice in September 2008. The notes from that time are more detailed. It also appears the prescription of various medications, including panadeine forte, ceased at that time.

On 29 January 2009 Dr Croaker recorded the following:

“bad back for years
2 weeks ago jarred back while on boat
2-3 days later pain in back became severe
worse with standing, lying
better with, sitting
some relief with nurofen
pain shooting down left leg to ankle
also getting pain in both feet- burning pain- to discuss on later visit
related to diabetic neuropathy”

In February 2009 Dr Croaker recorded that there was no improvement with the back and that Mr Seymour was “still very painful when walking and standing”. Mr Seymour was referred for a CT scan at that time and then to Dr Dandie “after result of CT”.

The clinical note in September 2009 refers to Mr Seymour injuring his left shoulder when driving a four-wheel buggy which tipped over.

The clinical note in December 2009 refers to the recent lumbar decompression and fusion. Endone was prescribed as this had been consumed. The notes at that time refer to feet symptoms.

In May 2010 Dr Croaker recorded that Mr Seymour could not drive the tractor due to back pain and otherwise had restrictions of movement in the right shoulder and the right knee.

In January 2013 Mr Seymour consulted Dr Croaker for right knee problems. The doctor noted the removal of the cartilage and patella “many years ago” and that the knee “hasn’t been right since then”.

Qualified opinions

Dr Phil Allen, Orthopaedic Surgeon, was qualified by the insurer and provided a report dated 20 August 2019. The doctor was provided with a history that Mr Seymour suffered injuries to his back, shoulder and right leg when involved in a collision causing the tractor to tip on its left side.
Dr Allen noted that the initial assessment and medical documentation failed to note any shoulder pathology. He considered that the shoulder condition evolved subsequent to the accident. The doctor also noted that Mr Seymour had evidence of advanced degenerative changes in the lumbar spine and a spondylolisthesis which all predated the motor vehicle accident. At “best” Mr Seymour suffered an exacerbation of the pre-existing degenerative changes which were “expected to have settled” about six weeks to three months following the accident. Dr Allen also noted a long history of pathology to the right leg which should have settled within a similar time frame to the lumbar spine.

Dr Allen opined that the effects from the motor accident had ceased and that the ongoing symptoms and need for treatment were related to pre-existing pathology.
Dr Timothy Anderson, Occupational Physician, was qualified by Mr Seymour and provided a report dated 7 August 2019. The doctor recorded a history of a right knee injury requiring excision of the patella and lateral meniscus with progressive degenerative change since that time. Subsequent post-accident history included a left shoulder injury in September 2009 when Mr Seymour fell off a buggy and injury to the right shoulder in 2010 when a motor bike fell on him.

Dr Anderson recorded a history of severe pain in the lower back following the accident which led to surgery in late 2009. The doctor opined that the motor vehicle accident caused “severe aggravation to pre-existing, underlying pathology associated with the lower back, right knee and right shoulder in that order of severity”. The low back condition was due to a combination of extensive degenerative changes “made very much worse by the impact effect of this vehicle accident” which resulted in extensive aggravation of the underlying condition.

Dr Anderson described a similar phenomenon occurred with respect to the right knee which was damaged many years previously with associated surgery including a patellectomy and a lateral meniscectomy. The effect on the right shoulder was due to a “one-off injury due to associated wrenching”.

Dr Anderson noted that the functional capacity of the left shoulder was similar to that of the right. He observed that there was extensive pathology in the left shoulder. Finally, Dr Anderson noted that Mr Seymour was quite functional and working until the accident with no complaints. He accordingly made no deduction for the pre-existing condition.
Dr Anderson otherwise assessed the lumbar spine scar at 1%.

Mr Seymour’s statement

Mr Seymour provided a statement dated 24 February 2020. He was born in 1946 and worked in various physical labour jobs until 1993 when he bought himself a tractor and slasher and began contract slashing. He said that following the accident he did not return to work until “early 2010”[13] and ceased worked “around the end of 2010” as he could not climb the steps to the tractor. Mr Seymour described the motor vehicle accident and the impact in the following terms:[14]

“The impact propelled the tractor forward until it tipped onto its left-hand side. The impact of the car threw me out of my seat. I was holding onto the steering wheel very tightly, and the steering wheel also bent from the impact. Part of the tractor heavily bruised my right knee and right ankle. During the accident, the fire extinguisher in the cab of the tractor broke off its brackets with the force of the impact and struck my lower back. The fire extinguisher was approximately 50cm in length and approximately 20cm in diameter. Attached and marked “A” are two pictures from the accident which show the significant braising I received as a result of the impact on my right leg and lower back. Attached and marked “B” is a picture of the fire extinguisher that hit my lower back in the accident.”

[13] Claimant’s statement, [45].
[14] Claimant’s statement, [6].

Mr Seymour was taken to Tamworth Base Hospital by his daughter. He stated that at that time he had “right leg pain, lower back pain, right elbow pain, shoulder pain in both shoulders and a laceration to my right eye”.[15]
[15] Claimant’s statement, [7].
Mr Seymour received pain medication at hospital. He was discharged after approximately 12 hours and subsequently attended his general practitioner who provided further medication for pain relief. He stated that at that time he was taking pain “every couple of hours and felt like a zombie”.[16]
[16] Claimant’s statement, [10].

Mr Seymour attended Dr Lennox approximately six weeks after the accident. On 21 December 2006, Dr Lennox operated on the right shoulder. At that time the doctor injected cortisone into his right knee.

Mr Seymour stated that during this period his back was painful with radiating bilateral leg pain, and the right knee was “noticeably painful following the accident”.[17]
[17] Claimant’s statement, [12].

The photographs annexed to the statement and said to be contemporaneous with the motor accident, show extensive bruising to the low back and right leg.

Mr Seymour underwent a CT scan of the lumbar spine in October 2007 and eventually consulted Dr Dandie in September 2009. In December 2009, Mr Seymour underwent a lumbar fusion.
Mr Seymour consulted Dr Sorrenti who performed an arthroscopy and partial meniscectomy of the right knee in February 2013.
Mr Seymour’s prior injuries were to the right knee in 1977 which required removal of cartilage and the patella in the 1980s, left knee injury in 1983 and a diagnosis of diabetes in the 1990’s.

Subsequent to the accident Mr Seymour suffered back pain when he was a passenger in a boat pulling a water skier. This incident was reported to the general practitioner in January 2009.

Mr Seymour injured his left shoulder on 18 September 2009. He stated that this incident did not affect his lower back, right shoulder, or right knee. In September 2010, Mr Seymour had a “motorbike tip over, injuring [his] right shoulder”.[18]
[18] Claimant’s statement, [38].

Mr Seymour has also suffered a right eye injury, urological problems and underwent open heart surgery. He stated that following the heart surgery, he had suffered from “significant memory loss”.[19]
[19] Claimant’s statement, [42].

Mr Seymour has an 8 cm scar from the lumbar spine surgery and two scars on the right knee measuring 1.5 cm and 8 cm. Photographs of the scars are in evidence.

Prior to the motor accident Mr Seymour worked sporadically but up to seven days per week. He stated that he returned to work in early 2010 but was severely restricted due to back pain. Mr Seymour ceased work at the end of 2010 as he could not climb the steps into the tractor and sit for long periods due to his back pain.

Other records

A claim form signed by Mr Seymour on 18 September 2018 refers to injuries to “back”, “right leg” and “shock” from the motor accident on 5 May 2006. The accident is described as occurring in the following circumstances:
“Car hit slasher broke slasher off tractor and tipped tractor over and sent slasher forward passed tractor. The lady was to blame as hitting me behind hard. I had to climb out of the broken windscreen on opposite of road.”
The medical certificate completed by Dr Barazandeh dated 18 September 2018 states that it is “filled out based on attached from discharge summary”. The certificate refers to injury as swelling within the medial part of the knee, laceration to the forehead and bruise and tenderness in the lower back.

SUBMISSIONS

In its application for medical assessment, Mr Seymour alleged injury to the lumbo-sacral spine, right knee and right shoulder. An assessment was provided by
Dr Anderson for the scarring associated with the surgical procedures for injuries sustained in the motor accident.

Mr Seymour’s response to the Application for Review were principally directed to rebutting the insurer’s submissions that the assessment was “incorrect in a material respect”. As the Review is proceeding, our function is to undertake a new assessment of all matters with which the medical assessment is concerned and not by way of ascertaining and correcting error of the medial assessment.

To the extent that Mr Seymour’s submissions are relevant to a new assessment, he submitted that a lack of contemporaneous complaints is not determinative of the issue of causation citing Bugat v Fox.[20]
[20] [2014] NSWSC 888.

Mr Seymour referred to paragraph 1.7 of the Guidelines and submitted that the “insurer has failed to grasp the concept of an injury having multiple causes with the real test of causation being a ‘material causation’”.[21]
[21] Claimant’s submissions, [7].

Mr Seymour noted there was right shoulder surgery within a year of the accident, there was no prior history of relevance and there was a verbal account of injury to the right shoulder in the motor accident. The finding by the Medical Assessor that there was a constitutional condition is consistent with the correct test on causation that an injury can have multiple causes.

In respect of injury to the lumbar spine, the Medical Assessor obtained a verbal history of injury from Mr Seymour, noted that bruising to the area was clear evidence of injury, recorded a history of the development of increasing spinal pain post injury and considered the reports of Dr Dandie. The jarring incident to the back was noted. The Medical Assessor by inference concluded that the accident was a cause but not the sole cause for the need for spinal surgery.

In response to the Direction dated 12 July 2021 Mr Seymour advised that he is not in possession of any clinical records of the general practitioner prior to 30 May 2006 and does not have a copy of the referral sent to Dr Lennox on 30 May 2006. Mr Seymour also advised that he does not have the clinical records of Dr Lennox.[22]
[22] That statement is read subject to the fact that the operation notes in late 2006 have been produced.
The insurer’s Reply to the original application for medical assessment raised issues of impairment, causation, exacerbation and apportionment to the lumbar spine, right shoulder and right knee. The RP were not provided with any submissions included in the Reply.
In its submission for a review of the medical assessment, the insurer submitted that the Medical Assessor failed to provide adequate reasons why the right shoulder was injured. It also submitted that there was a failure to “deal with causation of the right shoulder logically or correctly”. Reference was made to s 5D of the Civil Liability Act 2002 and the requirement of the Medical Assessor to make his “own findings on causation”.

The insurer submitted that the fact that surgery was undertaken was determined by treating medical practitioners as to whether the treatment was reasonable and necessary and the decision “did not factor in any assessment of how the alleged injury was caused”. The insurer observed that the surgery was undertaken seven months after the motor vehicle accident “in circumstances where [the] claimant conceded to a number of post-accident injuries and aggravations”.

The insurer submitted that the “lumbar spine injury is in issue”. Reference was made to the report of Dr Dandle in 2009 who referred to the lumbar spine aggravation “four years before”. It was submitted that the Medical Assessor “did not address this inconsistency”.

The insurer also submitted that there was an inconsistency in Mr Seymour’s account to the Medical Assessor and the “lack of any contemporaneous complaints relating to the lumbar spine during the claimant’s hospital admission”.

The insurer referred to the failure to “discount causation of the alleged lumbar spine injury in January 2009” when he suffered a “jarring incident”. This was less than 12 months prior to the surgery. The CT scan dated 20 February 2009 noted Mr Seymour had suffered back pain since January 2009 but showed no changes from a prior scan in 2007. The Medical Assessor did not address the reported onset of pain “which post-dated the accident ad that this incident could have been a substantial contributor to the occurrence or worsening of an alleged lumbar spine condition”.

In its further submissions the insurer accepted that the lack of contemporaneous complaints of a right shoulder condition was not determinative of a finding of injury but that the Medical Assessor was required to deal with the issue.

Submissions in response to the further Direction dated 15 July 2021

The insurer noted there were no complaints of back pain in Dr Croaker’s notes prior to January 2009. Dr Croaker then referred to an incident around Christmas 2008 when Mr Seymour jarred his back on a boat and was reported as having “great difficulty walking even short distances”.
The CT scan undertaken on 20 February 2009 showed a Grade 1 anterolisthesis of the L5/S1 vertebrae with bilateral neural exit foramina and mild compression of the exiting nerve roots. The Radiologist reported this as not significantly different from a previous scan dated 23 October 2007. However, of significance is that the scan mentioned pain since January not since 2006. This “is consistent with claimant’s back being injured in the boating accident rather than the motor accident”.[23]
[23] Insurer’s submissions, [1.1].

The insurer submitted:[24]

“It may be that the claimant did tell Dr Croaker that he had problems since the accident at the time he sought referral after the boat accident. However, any problems were insufficient to be reported to Dr Croaker and recorded in her notes. The report seems to have been first made to Dr Croaker when she provided the referral to Dr Dandie.”

[24] Insurer’s submissions, [1.1].

The insurer submitted that the scan and clinical notes “are consistent with the claimant’s severe lumbar spine symptoms were more likely onset in 2009”. The reference in the clinical notes that Mr Seymour’s had a bad back for years does not attribute the bad back to the motor accident. The history recorded by Dr Dandie in a report dated 21 September 2009 that the intermittent problems in the low back seem to stem from a tractor incident “does not apply the test in the Guidelines and was made without the benefit of the lack of complaint to Dr Croaker in her notes”.[25]
[25] Insurer’s submissions, [1.3].
The insurer accepted that it cannot refer to any objective evidence which would allow a deduction for pre-existing impairment.[26] It submitted that there was objective evidence of a subsequent injury in or around January 2009 which was the cause of
[26] Insurer’s submissions, [2].
Mr Seymour’s surgery.

In respect of the assessment of the right knee the insurer submitted:[27]

“Assessor Gorman’s reasons and assessment of the impairment for the right knee did not form one of the grounds of review sought by the insurer in its application. The Insurer accepts his assessment of the claimant’s right knee injury.”

[27] Insurer’s submissions, [3].

Mr Seymour submitted:[28]
“The referral to Dr Croaker is clear and concise in respect of the history provided by the Claimant to the Doctor. Regardless of whether the year of the accident is recorded accurately, the fact remains that the doctor took the history from the Claimant and deemed it of such importance to inform the specialist Dr Dandie.”
[28] Claimant’s submissions, [2].

The absence of reference in the clinical notes cannot be accepted as proof of absence of complaint. This is because very little is recorded prior to 2009 and between 2006 to 2008 there are consultations where not a single reference to the motor accident despite Mr Seymour attending the practice several weeks later.[29]
[29] Claimant’s submissions, [3].
The insurer’s submission that any problems were insufficient to be recorded by
[30] Claimant’s submissions, [4].
Dr Croaker is illogical because if that logic was applied to the clinical notes, then “the Claimant attended his GP on numerous occasions from 2006 to 2008 for no reasons whatsoever because nothing is recorded in the notes on the dates he attended”.[30]

Cases such as Mason v Demasi[31]emphasise the Court’s view that caution should be placed on the reliance of clinical records as being an accurate history. These notes are clearly “incomplete”.[32]
[31] [2009] NSWCA 227 (Mason).
[32] Claimant’s submissions, [8].

The insurer accepted that bruising was referenced in the Tamworth Hospital clinical records which supports a “finding of blunt trauma to this area of the body”.[33]
[33] Claimant’s submissions, [6].

The CT scan dated 20 February 2009 identified no alteration in pathology when compared to a previous scan of 23 October 2007. This supports two propositions, first any incident post 23 October 2007 did not cause any new pathology in Mr Seymour’s spine. Secondly, Mr Seymour’s had complaints of lumbar spine pain “in 2007 of such severity that warranted the referral and use of CT scanning. It is simply not logical that Mr Seymour would be referred for a diagnostic imaging of lumbar spine unless he was suffering pain in that body part”.[34]
[34] Claimant’s submissions, [7].

Mr Seymour relied on Dr Dandie’s history, the history recorded by Dr Croaker in the referral and the fact that he was subjected to CT scan imaging over one year prior to any boating incident and following the motor accident.
Mr Seymour noted that the insurer could not point to any objective evidence of pre-existing symptomatic impairment of the lumbar spine. He submitted that the reliance upon the boating incident was misplaced as the 2009 CT scan did not show any new pathology and the argument was otherwise “inconsistent with the objective evidence and histories recorded by the GP and the specialist”.[35]
[35] Claimant’s submissions, [10].

Mr Seymour noted the insurer’s submissions on the right knee and stated that he “does not need to respond”.[36]

Submissions in response to the further Direction dated 31 August 2021

[36] Claimant’s submissions, [11].

Review Panel then determined that it would reassess any impairment of the right knee. The parties were advised of this course by letter dated 31 August 2021 and invited to make any further submissions.
Mr Seymour noted that any reassessment could not be the subject of submissions. He referred to paragraph 1.31 and 1.32 of the Guidelines and to his statement evidence and that recorded by Dr Allen that he was a quick walker prior to the accident and
Dr Allen’s opinion that there was no objective evidence of symptomatic impairment prior to the motor accident.

Mr Seymour submitted that there was no evidence that his range of motion in flexion or extension of the right knee was restricted as result of pre-existing pathology. On the basis there should be no deduction pursuant to the Guidelines. In the alternative, any deduction should be limited to one-tenth.

In a subsequent short submission, Mr Seymour stated:

“[T]here is no dispute in relation to the right knee and submits that this body part should not be assessed by the Review Panel as there is no dispute.”

The insurer also referred to clause 1.31 of the Guidelines and relied on the findings by the Medical Assessor that the pre-accident patellectomy would be contributing to the right knee impairment.
The insurer submitted that a patellectomy gives rise to a 9% whole person impairment based on a diagnosis-based estimate. However, the Medical Assessor used a range of motion assessment and that the loss of right knee extension is due to the pre-accident patellectomy and that there should be a 0% whole person impairment.

Irrespective of the method of assessment, Mr Seymour suffered a significant pre-existing right knee impairment.

RE-EXAMINATION

Mr Seymour was interviewed by the RP on 13 September 2021. Initially the Principal Member asked questions and then excused himself.

Mr Seymour confirmed that he was working regularly before the accident and was fit without pain. He did not work again until sometime in 2010, well after the back operation. He said that the back got a little better following the surgery and that is why he attempted to return to work.

Mr Seymour described the motor accident in similar terms to his statement. He also stated that there was no seatbelt in the tractor at that time and that is why he was thrown around the cabin when it tipped on its side.

Mr Seymour stated that his back was the worst of his problems following the accident and that is why he would have taken pain relief medication such as panadeine forte. He initially said that he could not remember why he underwent a CT scan in 2007 but then stated that he would have acted on medical advice, and it would not have been his decision. He said that it would have been because he had bad back pain.

Mr Seymour stated that the incident in 2009 involved another boat travelling past and throwing wash into his boat causing him to lift in his chair and jarring his back. He agreed that this incident stirred up the back pain although he had back pain prior to this incident.

In relation to the claim form completed in 2018, Mr Seymour said that he cannot read or write and did not complete it. He agreed that he would have signed the document. Mr Seymour was unsure who completed the document although he suspected that it may have been done by his solicitor.

Examination by Medical Assessors

The medical assessment occurred after an interview by the Principal Member and a Commission employee who was present and organised the Telehealth teleconference from the Commission.

The medical assessment was attended by Medical Assessors Thomas Rosenthal and Shane Moloney. Mr Seymour’s wife, Joyce, was also in attendance.

It was noted by the Medical Assessors that throughout the interview, Mr Seymour had a poor recollection of events, and his wife was regularly asked to confirm certain details. In regard to this, the Medical Assessors were informed that Mr Seymour had a cardiac condition, heart attack, three and one-half years ago and following that event he has suffered with significant memory loss. It was also noted in the history that he has had diabetes for a lengthy period, possibly 10 years, but could not recall exactly how long and whether he was requiring medication.

Mr Seymour was advised that the medical assessment was required because the original assessment of Medical Assessor Gorman had been appealed. He had been reviewed by Medical Assessor Gorman in a face to face (in person) assessment that occurred on 10 February 2021.

Pre-accident medical history and relevant personal details

Mr Seymour was asked about his pre-accident medical conditions noting his motor vehicle accident that occurred on 5 May 2006. His first comment was that he had difficulties with dates and it had been previously noted that he could not read or write. He was specifically asked whether he had any back pain or other conditions prior to the accident. He said “to the best of his recollection he could not recall having any back problems”.However, he then admitted his recollection of events was poor and later in the interview admitted to his memory issues following his heart attack which occurred three and a half years ago. His wife confirmed that he had significant issues with memory.
He reported that he was living in Tamworth and had been driven to his lawyer’s office by his wife. He reported that he is still driving and does go shopping on occasions. He is now doing very little in the way of household chores, although he can shower and dress himself and manage his personal care.

At the time of the accident he said he was working as a labourer/grass slasher, and he owned his own tractor. He had been doing this for several years prior to the accident. When asked about whether he continued working after the accident he was somewhat confused about this and then it was recalled that he may have tried to return to work following his back surgery, for only a very short period of 10 days, possibly in 2010. He has not worked since that time.

There was a pre-existing condition in regard to his right knee which occurred in 1977 and he had vague recollection of this. He also thought that his knee was okay at the time the motor vehicle accident occurred. He did not particularly recall any pre-existing injuries to his back or right shoulder prior to the accident, although he also admitted that his memory of his condition prior to the accident was poor.

History of the motor vehicle accident

The motor vehicle accident occurred on 5 May 2006. He recalls driving his tractor along when he was struck from behind by a vehicle causing the tractor to tip onto its left side. He believes he lost consciousness. He did not call an ambulance and reported that his daughter picked him up and took him to Tamworth Hospital. He believes he injured his back, his right shoulder and his right knee in that accident. He did not recall what specific treatment he received at Tamworth Hospital but he was certain that he did not have any particular procedures done there. He thinks he was essentially given painkillers.

History of symptoms and treatment following the motor vehicle accident

Mr Seymour reported that he had ongoing pain in his back, shoulder and knee but then referred to pain in both shoulders, back pain, leg pain, knee pain and burning feet. He could not recall when various symptoms commenced, but he believes they all persisted. He had poor recollection of treatment from Dr Lennox but knows he had the surgery on his shoulder. He could not recall having a ‘tennis elbow’ condition and could not recall what other treatment he had particularly on his back or right shoulder or his knee prior to the surgery that occurred with Dr Lennox. This surgery on the right shoulder occurred, according to the records, on 21 December 2006.
Mr Seymour did not particularly recall which General Practitioner he began seeing after discharge from Tamworth Hospital. He was asked if this was in fact Dr Croaker, but he and his wife thought that Dr Croaker’s treatment may have commenced at a later date.

We noted to Mr Seymour that it was Dr Croaker that was treating him in early 2009 when he had an incident on a boat which he had previously described to Principal Member Harris as a ski boat in which he was tossed up and down. He could not recall any further detail of that incident or whether that incident particularly made the back pain worse. He does recall that he subsequently had some nerve conduction studies which were normal and then he recalls seeing Dr Dandie who then performed surgery on his lumbar spine in December 2009.

He recalls having some problems on and off with his right knee. It was reported in the documents that he had further surgery on his right knee in 2013. He had a vague recollection of this.

He recalls having a lot of pain in various body parts and also burning feet since the accident. He was also asked about another incident on a motorbike where he injured his left shoulder, also noted within the general practitioner’s records. There was also another incident where he aggravated his right shoulder in 2010. He could not recall either of these incidents and particularly could not recall the motorbike incident at all.

Mr Seymour did note that he has continued seeing Dr Dandie who has continued treating him with Cortisone injections into his back on a regular basis. His last injection into his back he thinks was just prior to the commencement of the pandemic in early 2020.

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

As noted, Mr Seymour has had various incidents documented including a boat accident and a motorbike incident, since the accident, which apparently lead to increase symptoms from those incidents, but Mr Seymour could not specifically recall the events or his symptoms at that time.

Current symptoms

Mr Seymour continues to have constant pain in a number of areas including back pain, neck pain and shoulder pain. The back pain was relieved by hand pressure into the lumbar region. He was confused to which shoulder was worse than the other. He said both his shoulders were sore and he has trouble moving both of them. He has trouble bending, sitting, standing and walking which are all restricted. He continues to get burning of his feet and he continues to get pain travelling down both his legs, although he did not particularly describe a radicular pattern of pain. He is able to drive for about one hour and has a poor sleep pattern due to pain in the lower back. Walking is limited due to back pain and his wife does most of the household chores.
He thinks that the lumbar surgery gave minimal benefit but the steroid injections are a slight help.

Current and proposed treatment

Mr Seymour takes Panadol Osteo two twice a day. With increasing pain, he takes Advil at night. He takes medication for his diabetes, but he could not recall the names of these. Apparently, he is also receiving other medication for hypertension. He is also on heart and cholesterol medication. No physical treatments such as physiotherapy is currently occurring.

Physical examination

Mr Seymour was only able to display a very limited display of movement.
Mr Seymour appeared to have difficulty getting out of his chair. He was holding his back and was in a hunched stooped position. He walked with a stooped posture and shuffling gait. He displayed restriction in all of his lumbar movements. Movements in flexion and extension were asymmetrical. Lateral flexion and rotation were also significantly reduced with pain on movement reported. The medical assessors deemed that this was consistent with his lumbar condition and the previous lumbar surgery. He did not attempt to squat and said he could not do it.

Attempts were made to display shoulder movements and it appeared that movements at both shoulders were reduced symmetrically with abduction only possible to approximately 100 degrees on both sides. A full range of shoulder movements was not attempted due to the limitations of the Telehealth examination and Mr Seymour’s complaints of pain. The lumbar scar could not easily be viewed because of the camera angle and distance.

FINDINGS

The RP conducts a new assessment of all the matters with which the medical assessment is concerned.[37]
[37] Section 63(3A) of the Act.
Following the conference with Mr Seymour the parties were asked the following questions by the RP:

“3.However, further submissions are now sought on whether the parties accept that the RP adopt on review:
(a)the examination findings of Medical Assessor Gorman generally; and
(b)the impairment assessment of the right knee (after the deduction).

4. If there is agreement on these matters, then causation of the right shoulder and lumbar spine remain in issue. The parties have previously addressed these issues in the various submissions.”

Mr Seymour submitted that the RP can “accept the findings on examination of the MA in respect of all body parts referred” and the impairment assessment of the right knee. He submitted that the insurer initially accepted the right knee assessment and “has made no submissions as to why it should be absolved of its concession at this late stage of the proceedings”.
The insurer initially made an inconsistent response which did not directly answer the Direction. It was then asked to clarify its response. The insurer then submitted:

“The Insurer accepts that [it] is open to the Review Panel to adopt the clinical findings made on examination by Assessor Gorman. The insurer does not dispute the ranges of motion found on examination but disputes the findings on causation.
The Insurer says Assessor Gorman’s impairment assessment of the right knee (after the deduction) should not be accepted by the Review Panel given the Assessor applied the incorrect procedure for assessing and deducting pre-existing impairment.”

The parties accepted that the RP could use the examination findings of the Medical Assessor. Consistent with the objectives of the Commission in circumstances where the pandemic has prevented in-person examinations, the RP accepts that it could act on the examination findings made by Medical Assessor Gorman in light of the submissions.

Causation - legal principles

Clauses 1.5 – 1.7 of the Guidelines provide:

“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

In Peet v NRMAInsurance Ltd[38] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[39] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002,
[38] [2015] NSWSC 558 (Peet).
[39] [2012] NSWSC 560 (Owen).
[40] Owen at [27].
s 5D.”[40]

More recently in Hunter v Insurance Australia Ltd[41] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [153] herein) which incorporated “common law principles of causation”[42]. The Court held that the Panel then erred by applying a notion of a requirement that there be a “direct” consequence when it was sufficient that “an indirect, but forseeable consequence, was sufficient to establish causation”.[43]
[41] [2021] NSWSC 623 (Hunter).
[42] Hunter at [16].
[43] Hunter at [20].

A number of recent authorities have discussed error made by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes.

In Norrington v QBE Insurance (Australia) Ltd[44] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[44] [2021] NSWSC 548 (Norrington).

The Court stated:[45]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence of otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[45] Norrington at [31].
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[46] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[47]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[48]).
[46] [2016] NSWCA 229 at [64]-[66].
[47] [2004] NSWCA 34 at [35].
[48] [2014] NSWSC 888 at [31]-[32].
In QBE Insurance (Australia) Ltd v Shah[49] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[50] between the motor accident and the alleged injury. His Honour noted:[51]

“Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”

Lumbar Spine

[49] [2021] NSWSC 288 (Shah).

[50] Shah at [36].

[51] Shah at [16].

Mr Seymour sustained injuries in the motor vehicle accident which included significant bruising to the low back and right knee. These injuries were consistent with the manner of the accident which involved Mr Seymour being thrown around the cabin.
The clinical notes from Tamworth Hospital record bruising to the lumbar spine.

There was no specific clinical information regarding his lumbar spine in the immediate aftermath of the motor vehicle accident although, as the Claimant correctly submitted, the clinical notes are sparse in terms of detail. Mr Seymour was referred to Dr Lennox, orthopaedic surgeon approximately five weeks after the accident, and around December of 2006 Dr Lennox performed an arthroscopic glenohumeral debridement and an acromioplasty with bursectomy on his right shoulder. The doctor also injected the right knee with a depo-steroid. Dr Lennox is an orthopaedic surgeon but there was no reference to any treatment in regard to his lumbar spine at that time.

The clinical records indicated that a scan was done on the lumbar spine around September 2007, that is 18 months after the accident. There are references to intermittent back pain in a referral to Dr Dandie in 2009. There are references to back pain commencing following the accident which was the history given when Mr Seymour presented to Dr Dandie.

The report from Dr Dandie dated 21 September 2009 noted that Mr Seymour reported intermittent problems with his lower back which seemed to stem from a tractor accident approximately four years previously. Dr Dandie noted his last episode was in February 2009. Dr Dandie’s impression was that he had ‘an isthmic spondylolisthesis at L5/S1 with bilateral L5 radiculopathies. He has episodic leg and back symptoms associated with the structural problem in lumbar spine’. He noted that Mr Seymour wanted his structural problem fixed. Dr Dandie subsequently performed an L5/S1 lumbar decompression and fusion. Nerve conduction studies were performed prior to surgery on 3 September 2009 by Dr James Hughes and this showed normal study and no evidence of any significant neuropathy.
The MRI of the lumbar spine dated 24 September 2009, concluded that there was a ‘bilateral pars defects of L5 with forward slip of L5 over S1 of 7mm which along with minor disc bulge and facet OA changes is resulting in marked narrowing in the exiting neural frame and of facing the exiting nerve root. No significant spinal canal narrowing.’ These radiological changes were developmental with degenerative osteoarthritis of the exit foramina which would not have changed since the motor accident.

Symptoms, particularly the leg symptoms, continued following surgery, which
Dr Dandie thought may have a separate cause in his letter dated 11 January 2010. In Dr Dandie’s letter of 19 April 2010, he noted that Mr Seymour was progressing as expected following his lumbar fusion and stated:

“I think he will always have a degree of back pain if he continues to work long hours. We discussed today the possibility of changing his tractor seat to see if this would improve his symptom tolerance”.

Dr Dandie continued to review Mr Seymour in 2011 and 2012 because of ongoing symptoms in his lumbar spine.
We accept that Mr Seymour sustained a soft tissue injury to his lumbar spine region which was confirmed by the bruising that was shown in a photograph, which covered a diffuse area of his lumbar spine region.

The RP accepts that there would have been some back symptoms that continued after the motor accident in his lower back but in our view, the soft tissue injury that he sustained in his lumbar spine would not have caused ongoing symptoms past a three-month period. It is our view that the structural abnormality of his spondylolisthesis that required the surgery by Dr Dandie, was a pre-existing condition that was not related to, or aggravated by, the soft tissue lumbar spine injury that occurred in the motor vehicle accident.

Whilst the pathology in the 2009 CT scan was described as the same as that shown in 2007, the likelihood is that the pathology pre-existed the motor accident. Indeed, that conclusion is consistent with the views expressed by Dr Anderson and Dr Allen.

Mr Seymour underwent a CT scan in late 2007 at a time when he was prescribed panadeine forte. However, those events were not contemporaneous or closely followed the motor accident.

As Mr Seymour correctly submitted, the clinical notes in the period post the motor accident are devoid of any detail and it is difficult, if not impossible, to determine what complaints were made during this period. We do not accept the insurer’s submission that the notes establish an absence of complaint. Not only do the authorities referred by Mr Seymour such as Mason indicate the potentially unreliability of clinical notes, on their face, these notes, particularly in the period prior to Dr Croaker becoming involved in Mr Seymour’s treatment, show a complete lack of detail.

Our conclusion that there was a cessation of lumbar spine symptoms after a period is inconsistent with Mr Seymour’s statement. However, Mr Seymour advised the Medical Assessors in the RP and in his statement that his memory of events was poor due to his cardiac condition and associated surgery. The history Mr Seymour now provides of continuous back pain following the accident is a version provided many years after the event and is otherwise inconsistent with a history in some of the clinical notes[52] that he was working on the tractor prior to the back operation.
[52] Dr Croaker’s clinical note dated 2 June 2009.

The history recorded by Dr Dandie in late 2009 of “intermittent symptoms” is not consistent with continuous back pain since the motor accident. That history is consistent with a period of recovery following the motor accident and flare ups caused by innocuous actions such as waves bumping into the ski boat that Mr Seymour was riding in early 2009 which significantly aggravated his symptoms resulting in attendance on his general practitioner, undergoing a further CT scan and being referred to a treating specialist for the back condition.

We do not accept Mr Seymour’s statement evidence that there were continuous lumbar spine symptoms following the motor accident. His memory is clearly deficient, and the history is inconsistent with clinical notes around the period that there were intermittent as opposed to continuous back problems.

In the view of the expert medical opinion on the RP, it is not medically plausible that the spondylolisthesis was aggravated by the motor vehicle accident. The surgery that
Dr Dandie performed was unrelated to the motor vehicle accident. We also observe that this type of pathology can be rendered symptomatic by innocuous events such as what occurred with Mr Seymour such as the water ski incident described by him or sitting in a tractor for prolonged periods.

Whilst we accept Mr Seymour’s submission that he only has to show a material contribution between the injury and the impairment[53] reflective of the proposition that the law recognises multiple causes for a loss, we are not satisfied of any causal relationship between the back injury and the lumbar spine surgery.
[53] Coventry v Insurance Australia Ltd [2019] NSWSC 1096 at [56].

Dr Anderson opined that the motor accident caused a severe aggravation of pre-existing underlying lumbar spine pathology which rendered the surgery necessary. We do not accept that opinion.

Based on the totality of the information we do not accept that there was an aggravation to the spondylolisthesis that was noted on the MRI scan, and this was the structural abnormality that was surgically operated on by Dr Dandie. In our view, the MRI performed in 2009 confirmed the structural abnormality and does not show any evidence that there was any trauma-related condition.
The clinical note on 29 January 2009 refers to “bad back for years” and to jarring the back two weeks previously whilst on a boat. The history recorded in the report dated 3 March 2009 from Dr Croaker refers to low back pain back since the tractor accident. The CT scan undertaken on 20 February 2009 refers to low back pain since mid-January.

We conclude that the lumbar decompression and spinal fusion at L5/S1, was not causally related to the motor accident. The effects of the lumbar spine injury resolved over a period of approximately three months.

Right Shoulder

There is no reference in the hospital notes on the day of the motor accident to a right shoulder injury. In the claim form completed many years later, Mr Seymour did not refer to the right shoulder being injured in the motor accident. These matters are relevant to but not determinative of injury.
The motor accident caused Mr Seymour to be thrown within the tractor cabin. It is medically plausible that such an incident could have caused the right shoulder tear that Dr Lennox operated on later that year.
We have previously observed that the clinical notes of the general practitioner, particularly in the period following the motor accident in 2006 and 2007 are lacking in detail. The brief mention of “tennis elbow” in the clinical note on 30 May 2006 does not provide confidence that this was an adequate description of Mr Seymour’s symptoms at that time.
Mr Seymour was referred by his general practitioner to Dr Lennox on 30 May 2006 and Dr Lennox performed arthroscopic procedure on the right shoulder in December 2006.
The proximate temporal connection between the motor accident and the referral to
Dr Lennox, who subsequently performed shoulder surgery is brief. Prior to the motor accident, Mr Seymour was in regular employment in a position somewhat inconsistent with suffering from a partial articular supraspinatus tear.

Mr Seymour explained that he could not read and write which explained the absence of reference to the right shoulder in the claim form. We accept that the claim form was probably completed by the legal practitioner based on the report accompanying the claim form which itself was based on the hospital notes.

The insurer’s submission[54] that there were a number of post-accident injuries and aggravations which explains the right shoulder is misguided as these events occurred after the shoulder operation and not during the period between the motor accident and the shoulder surgery. Dr Allen expressed a similar opinion in the absence of any history or source.
[54] See [93] herein.

In the view of the RP, the temporal connection between the motor accident and the referral to Dr Lennox, the subsequent treatment and the likelihood that the manner of injury could have caused the shoulder tear is sufficient to outweight the counter veiling inferences from the absence of reference in the notes recorded immediately following the motor accident. We are satisfied that Mr Seymour suffered a right shoulder tear in the motor accident which resulted in the need for surgery.

We adopt the the parties’ agreement that the RP can adopt the examination findings by Medical Assessor Gorman. The shoulder tear, albeit surgically treated, would likely result in permanent loss of range of motion.

The clinical records show that the right and left shoulder were subsequently injured following the motor accident. It is difficult to determine whether either injury resulted in any futher loss of range of motion. In these circumstances we adopt the assessment of the right shoulder made by Medical Assessor Gorman.

Right knee

The hospital notes and photographs show that the motor accident caused substantial bruising to the right knee. The x-ray undertaken at the time of the motor accident reported the previous patellectomy and osteoarthritic changes in the lateral compartment with loose bodies. The x-ray did not show any bony abnormality caused by the motor accident.
Mr Seymour submitted that, despite the prior surgery, the history recorded by Dr Allen was that he was a quick walker and there was no evidence of symptomatic impairment prior to the motor accident.

However, Dr Croaker’s clinical notes of 29 January 2009 when the doctor refers to an absence of right knee reflex “due to knee op” and on 17 January 2013 where there is reference that the right knee “hasn’t been right since” the removal of the cartilage and patella many years ago is compelling evidence of significant pre motor accident right knee restriction.

In the expert medical view of the RP, there would have been extensive degeneration within the right knee prior to the motor accident and likely significant right knee restriction due to the previous surgery. The removal of the patella and lateral meniscal damage would have effected the bio-mechanics of the knee and inevitably led to further degeneration over time. That conclusion is consistent with the record in the
x-ray undertaken at the time of the motor accident of osteoarthritic changes in the lateral knee compartment. That medical conclusion is also consistent with the clinical notes of Dr Croaker referenced above.

This conclusion is also consistent with the opinion of Dr Sorrenti. In 2013, Dr Sorrenti noted extensive degeneration within the right knee when he performed a right knee arthroscopic chondroplasty and osteoplasty. The history recorded by Dr Sorrenti was of a long history of problems with a rigid right knee and a “work related injury”.
The RP accepts that the motor accident caused a soft tissue injury to the right knee. There was no bony trauma caused by the accident as evidenced by the contemporanous x-ray.

The RP is not satisfied that the motor accident caused further degeneration within a pre-existing significant degenerate knee.

The present loss of range of motion is due to the removal of the patella and the extensive degeneration caused by the original surgery. We are not satisfied that the injury from the motor accident materially contributed to the subsequent surgery or any loss of range of motion of the right knee.
The RP adds that various submissions were made by the parties concenring this part of the overall assessment. It is correct that the insurer did not dispute this portion of the assessment in the submissions initially made on review. It is also correct that the matter was initially raised by the RP.

Contrary to the insurer’s submissions, the RP was not required to reassess the right knee as part of the overall assessment, particularly in circumstances where the parties had not initially addressed the issue. Indeed, in the present case the parties initally accepted that part of the Medical Assessor’s assessment.

However, once the matter had been raised by the RP, s 63(3A) of the MAC Act provided that this was a new assessment on all matters.

It may be that in future cases, review panels may adopt assessments not the subject of express submission. In this respect the Commission is obliged, consistent with the objects set out in s 3 of the PIC Act, to “resolve the real issues in proceedings justly, quickly cost effectively with little as formality as possible”.

Skin

The scar for the lumbar spine surgery was assessed by Medical Assesor Gorman at 0%. Given our earlier findings, we do not find that this scar is causally related to the motor accident.
We otherwise observe that the lengthy scar on the right knee relates to the operation prior to the motor accident when the patella was removed.

Conclusions

Mr Seymour suffered injuries of the lumbar spine, right knee and right shoulder in the motor accident.
The injuries of the lumbar spine and right knee resolved and gave rise to no assessable impairment.

The right shoulder injury gave rise to impairment at 1%. The certificate of the RP is set out at the commencement of these Reasons.

John Harris
Principal Member
Dr Shane Moloney
Assessor
Dr Thomas Rosenthal
Assessor

[2021] NSWPICMP 194

5 October 2021