Palavicino v AAI Limited t/as GIO
[2024] NSWPICMP 454
•10 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Palavicino v AAI Limited t/as GIO [2024] NSWPICMP 454 |
| CLAIMANT: | Kerry Palavicino |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 10 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; assessment of treatment and care; Medical Assessment Certificate (MAC) held that arthroscopic left shoulder surgery was not reasonable and necessary; causation; examination required; range of motion and abduction left shoulder assessed; aggravation of preexisting joint pathology; no evidence of rotator cuff tear; mild supraspinatus tendinopathy; long history of treatment; Held – arthroscopic surgery of rotator cuff repair not reasonable and necessary; Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Adam Rapaport dated 2. The following treatment and care: · arthroscopic left shoulder surgery recommended by Dr Chandra Dave, IS NOT REASONABLE AND NECESSARY in the circumstances. |
STATEMENT OF REASONS
This 74-year-old claimant was involved in a motor vehicle accident when he was a front seat passenger in a Toyota Corolla driven by his son on the Great Western Highway near Prospect. His son had slowed down in the queue of traffic when the vehicle was rear ended, and the claimant was thrown to the left with his left elbow hitting the pillar on the left-hand side with a second impact to the left shoulder. The vehicle was towed from the scene and was subsequently written off. Ambulance officers attended and transported him to Westmead Hospital where he underwent imaging of the neck, left shoulder and left elbow, and was observed overnight and discharged with analgesia the following day and had review by his general practitioner (GP) in Liverpool and was subsequently referred for physiotherapy.
He saw Dr Abraszko for his neck, but no intervention was required, and his neck pain subsequently settled. He did however have persisting pain in the left shoulder for which he was referred back to his shoulder surgeon, Dr Dave.
When he was seen by Medical Assessor Neil Berry on 28 February 2019, his medical assessment certificate (MAC) of 14 March 2019 noted that the left shoulder was not a minor injury for the purposes to the Act and that the subsequent care of the left shoulder related to the injury caused by the subject motor vehicle accident and that the following treatment and care, excision of the AC joint of the left shoulder was reasonable and necessary in the circumstances.
It was noted by the Medical Assessor that there was a vertical scar at the lateral aspect of the shoulder with a degree of wasting of the deltoid muscles and prominence of the AC joint with drooping of the distal clavicle and there was stiffness on elevation of the shoulder. An MRI of the left shoulder on 17 June 2018 showed previous dislocation of the AC joint with a screw tracked in the distal clavicle with subacromial bursitis and thickened coraco-acromial ligament with mild lateral arch impingement.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A (1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The Panel determined that an examination of the claimant was required. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
INTRODUCTION
Kerry Palavicino (the claimant) is a 74-year-old man who involved in a motor vehicle accident when he was a front seat passenger in a Toyota Corolla driven by his son on the Great Western Highway near Prospect.
He saw Dr Abraszko for his neck, but no intervention was required, and his neck pain subsequently settled. He did however have persisting pain in the left shoulder for which he was referred to his shoulder surgeon, Dr Dave.
When he was seen by Medical Assessor Berry on 28 February 2019, his MAC of
14 March 2019 noted that the left shoulder was not a minor injury for the purposes to the Act and that the subsequent care of the left shoulder related to the injury caused by the subject motor vehicle accident and that the following treatment and care, excision of the AC joint of the left shoulder was reasonable and necessary in the circumstances.
It was noted by the Medical Assessor that there was a vertical scar at the lateral aspect of the shoulder with a degree of wasting of the deltoid muscles and prominence of the AC joint with drooping of the distal clavicle and there was stiffness on elevation of the shoulder. An MRI of the left shoulder on 17 June 2018 showed previous dislocation of the AC joint with a screw tracked in the distal clavicle with subacromial bursitis and thickened coraco-acromial ligament with mild lateral arch impingement.
Medical Assessor Berry noted the MRI showed the AC joint had been disrupted as there was now a screw track but no evidence of fixation and although he accepted this may have occurred in 2011, it was considered his present condition, with disruption of the AC joint, was due to the subject motor vehicle accident. On 23 July 2019 there was excision of the distal clavicle and insertion of a hook plate to reconstruct the AC joint, but this was subsequently removed in November 2020.
Following the subject motor vehicle accident on 25 May 2018 after review by Dr Dave, he found that the rotator cuff tendons were intact and recommended the hook plate fixation for treatment of the persisting subluxation of the disrupted AC joint. He saw no concurrent reason for treatment of the rotator cuff.
The diagnosis was an aggravation of a previous subluxation of a left AC joint that had been repaired following a fall when alighting a bus on 8 November 2008 and this was disrupted 10 years later in the subject motor vehicle accident in 2018, necessitating the operative intervention by
Dr Dave. On 10 November 2021 Dr Dave opined he ought to do a revision reconstruction of the AC joint with the use of LARS ligament implant as noted by Dr Alan Home, in his MAC dated 29 November 2022.
In that report, he noted the claimant had suffered an aggravation of a long-standing AC joint disruption which had now undergone reconstruction surgery and was satisfied the claimant’s motor vehicle accident substantially aggravated the pre-existing joint pathology and led to the necessity for further surgical management under the care of Dr Dave and then had subsequent removal of the hook plate. This is consistent with the findings of Medical Assessor Berry, in his MAC dated 14 March 2019.
It was subsequently treated by acromioplasty and reconstruction of the AC joint and he went home to his native Chile to recuperate but unfortunately, there was an earthquake, and he was on the second floor and was required to jump, sustaining a calcaneal fracture and his left shoulder had some re-subluxation of the AC joint and he required further revision of fixation. This had been booked at Fairfield Hospital and revision reconstruction was advised.
While there was a pre-accident history of left shoulder injuries, when he had MRI scans performed on 6 June 2018, his rotator cuff was intact without any evidence of tear or substantial tendinosis and Dr Dave then undertook the AC joint reconstruction for the AC joint dislocation for which there had been a prior surgical repair.
It is evident that the mechanism of the claimant’s injury was such that his left arm hit the pillar of the car on impact, and he sustained a re-disruption of the AC joint but without evidence of rotator cuff tear. Because of the mechanism of injury to the left shoulder, the claimant required operative intervention on 23 July 2019 with excision of the distal clavicle and insertion of hook plate to reconstruct the AC joint which was subsequently removed in November 2020.
The Panel notes the MAC of Medical Assessor Berry dated 14 March 2019 and that the injury to the left shoulder in the subject motor vehicle accident was a non-minor injury and was causally related to the subject motor vehicle accident and that excision of the AC joint of the left shoulder was reasonable and necessary and causally related to the injury in the subject motor vehicle accident.
He notes in his Determination that although the claimant had a history of having had AC dislocation the MRI scan of the shoulder showed the AC joint had been disrupted as there was now a screw track but no evidence of fixation and that while he would accept that may have occurred in 2011, it could not be conclusively proven and he considered the present condition be accepted, that the AC joint has been re-disrupted in the subject motor vehicle accident and this was not a minor injury.
It is noted that the MAC of Medical Assessor Adam Rapaport dated 29 November 2023 was only in relation to whether arthroscopic rotator cuff surgery by Dr Chandra Dave was reasonable and necessary, which is not the dispute in front of the current Panel, which is the disruption of the AC joint that led to excision arthroplasty of the distal clavicle and subsequent removal of hardware.
REVIEW PANEL DECISION
The panel notes that claimant has a long history of shoulder complaints. The treatment dispute relates to an arthroscopic left shoulder surgery with possible rotator cuff repair and decompression. The MRI scan of the claimant’s left shoulder performed on 16 June 2018, some three weeks post-accident, records “The rotator cuff tendons are intact without evidence of a tear nor substantial tendinosis”. This does not support a contention that there were tears in the claimant’s left shoulder which were caused by the motor vehicle accident.
The claimant underwent an excision of the lateral end of the clavicle an insertion of a hook plate to reconstruct the AC Joint in July 2019. Thereafter, in November 2020, the claimant underwent the removal of the plate inserted the year before. The panel notes that the MRI scan of the claimant’s left shoulder performed on 1 March 2022 identifies post cervical changes in keeping with the prior AC Joint resection. The report goes on to note “Mild Supraspinatus Tendinopathy in the interior and mid fibres and small low grade intrasubstance tear (4x4mm). This MRI scan is some 4 years post-accident and is seemingly the basis upon which the request for arthroscopy left shoulder Decompression Repair of Rotator Cuff” It was made by Dr Dave on 20 April 2023.
The material bears out a long history of treatment of Dr Dave and the claimant going back to a request for an ultrasound of the left shoulder in December 2008. The claimant underwent cervical spinal fusion surgery following a motor vehicle accident in 2008. He has not worked since this time. He suffered an injury to his left shoulder and underwent surgical repair by Dr Dave in 2009. Following the accident, as outlined above, he has undergone surgery to his left shoulder AC Joint.
The issue for the panel is whether or not the material supports a contention that there is a requirement for him to undergo surgical repair of a tear to his supraspinatus. Noting that the condition of the supraspinatus in the years following the accident, and the surgical procedures which the claimant has undergone to his left shoulder following the accident which did not involve surgical repair to the supraspinatus the panel is not satisfied that the repair is required consequent on the motor vehicle accident nor as a consequence of any post-accident surgical procedures which he has undergone.
CONCLUSION
The following treatment is not reasonable and necessary in the circumstances:
·
arthroscopic surgery of rotator cuff repair to the left shoulder recommended by
Dr Chandra Dave is not reasonable nor necessary in the circumstances, and
· the Medical Assessment Certificate of Medical Assessor Adam Rapaport dated 29 July 2023 is confirmed.
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