Pennicuik v QBE Insurance (Australia) Limited
[2022] NSWPICMP 415
•21 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Pennicuik v QBE Insurance (Australia) Limited [2022] NSWPICMP 415 |
| CLAIMANT: | Amanda Pennicuik |
INSURER: | QBE (Insurance) Australia Limited |
| REVIEW Panel | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| MEDICAL ASSESSOR: | Dr Mohammed Assem |
| DATE OF DECISION: | 21 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS –The claimant suffered injury in a motor accident on 8 February 2017; medical dispute under the Motor Accidents Compensation Act 1999 (1999 Act) about whether the motor accident caused permanent impairment greater than 10%; both Medical Assessors examined and assessed the claimant; assessment found no nexus with the claimant's left shoulder and right big toe conditions to the accident; right shoulder injury had resolved; cervical spine assessed with 5% permanent impairment; no statement of principle; Held – claimant reassessed at 5% permanent impairment; previous Certificate revoked. |
| DETERMINATIONS MADE: | The motor accident caused the following injuries to give rise to a permanent impairment which is 5% and IS NOT GREATER THAN 10%: · cervical spine – soft tissue injury, and · right shoulder – soft tissue injury. The motor accident did not cause the following injuries, which do not give rise to a permanent impairment: · right big toe – soft tissue injury, and · left shoulder – soft tissue injury. |
REASONS
Background
Ms Amanda Pennicuik (the claimant) suffered injury in a motor accident on
8 February 2017 when Ms Pennicuik was the driver of her car when a larger car struck her stationary car in the rear. She was wearing a seatbelt at the time and airbags were not deployed.The insurer insured the owner and driver of the motor vehicle for liability to pay to the claimant any damages Motor Accidents Compensation Act 1999 (the MAC Act).
The insurer agreed to accept liability for the accident and the claimant’s neck injury.
Medical Assessor Alexander Woo examined Ms Pennicuik on 10 November 2021 and produced a certificate dated 17 November 2021.[1]
[1] Page 106 insurer’s bundle AD3.
Ms Pennicuik’s application for referral of a medical assessment to a Review Panel was made within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 63(7) of the MAC Act.
On 11 March 2022, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 63(2B) of the MAC Act, page 119 insurer’s bundle AD3.
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.[4]
[4] Sections 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides the State Insurance Regulatory 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 prevail.[5]
[5] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means the matter is determined at first instance by a Medical Assessor[6] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[6] Section 60 of the MAC Act.
Conduct of the Review
The Panel met on 6 June 2022. All Panel members had no previous involvement with this matter or with Ms Pennicuik.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Personal Injury Commission (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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
Assessment under review
Medical Assessor Alexander Woo certified the following:
“Permanent Impairment
The degree of permanent impairment as a result of the injuries caused by the motor accident, being
•Cervical spine – soft tissue injury
•Right big toe – soft tissue injury
•Left shoulder – soft tissue injury
•Right shoulder – soft tissue injury, was not greater than ten percent”
Disputes and issues identified
The following aspects of the assessment were disputed:
a. Whole person impairment (WPI) in relation to:
i.neck;
ii.right shoulder;
iii.left shoulder, and
iv.right big toe.
b. Extent of WPI in relation to:
i.neck;
ii.right shoulder;
iii.left shoulder, and
iv.right big toe.
c. Causation between the subject motor vehicle accident and the injuries alleged being:
i.right shoulder;
ii.left shoulder, and
iii.right big toe.
The claimant said Assessor Woo's Certificate dated 17 November 2021 was incorrect in a material respect because:
a. the Assessor did not put the claimant on notice of any inconsistencies in the range of motion of the shoulders on the day and on the history obtained from medical documents provided to the Assessor;
b. the Assessor erred in his examination of the claimant's shoulder by considering passive range of motion;
c. the Assessor erred in his examination of the right big toe, and
d. the Assessor focused unnecessarily on aspects of the claimant's medical history that were not relevant to the claim and to the subject accident.
The respondent opposed the application on the grounds there was no reasonable cause to suspect the medical assessment was incorrect in a material respect, pursuant to s 63(2) of the MAC Act.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 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 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[9]. In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
Note Principle Member John Harris’ contribution to the Commission’s Review Panels decisions has assisted this Panel in establishing the appropriate statutory framework[11].
[11] for example see, QBE Insurance (Australia) Limited v Stanisic [2022] NSWPICMP 361.
Documentation
The Panel considered the following documentation:
· Assessor Alexander Woo’s certificate dated 17 November 2022;
· Application for review and the claimant’s bundle to Review Panel marked AD1;
· Reply and attached documents;
· the President delegate’s reasons issued on 11 March 2022 referring this matter to a Review Panel;
· all the documents which were provided to Assessor Woo prior to the assessment under review, and
· additional documents being submissions regarding the Panel’s requests for submissions dated 10 June 2022 marked AD3 (claimant) and AD6 (insurer).
The Panel considered and decided these matters
The Panel considered afresh all aspects of the assessment under review.
The Panel determined re-examining Ms Pennicuik was necessary to reach a decision, because the assessment involved sensitive issues.
Accordingly, arrangements were made for Assessor Assem and Assessor Moloney to examine Ms Pennicuik on 31 August 2022. The Panel agreed to reconvene on 4 October 2022 to discuss the matter further.
The Panel also decided additional information would assist them to decide, because the Panel had come to a preliminary view the left shoulder and right big toe are not attributable to the accident and invited submissions from the claimant on or before
5 August 2022. The insurer was to respond by 12 August 2022.The claimant submits due to the pain, discomfort and restriction of movement in her right shoulder, she says she had to rely heavily on her left shoulder. The claimant is right hand dominant. Due to overuse of her left shoulder, the claimant has experienced pain, discomfort and restriction of movement in the left shoulder. As such Ms Pennicuik says her left shoulder injury is a consequential injury of the subject motor vehicle accident. The claimant relies on the report of Dr Endrey-Walder dated 4 June 2020 [A2], who assess the left shoulder at 2% WPI. The claimant further relies on the certificate of Assessor Woo noting the left shoulder injury is a consequential injury, which is addressed below.
The claimant further submits her right big toe did not cause her any pain or discomfort prior to the subject accident. The claimant was able to perform household chores and attend her regular exercise regimen at the gym prior to the subject accident.
The claimant’s abilities to perform the above has now significantly reduced due to her ongoing pain and discomfort. Post-accident the claimant has been unable to walk without pain and discomfort and has difficulties finding comfortable footwear to ease her ongoing pain.
The insurer submits the claimant alleges the left shoulder injury is a consequential injury related to the motor vehicle accident, relying on Dr Endrey-Walder’s report dated 4 June 2020. The expert assessed the left shoulder at 2% WPI due to shoulder impingement and reported a “full range of arc movements at both shoulder girdles”.
The insurer says Dr Endrey-Walder’s assessment is unreliable given he did not diagnose an injury or record any actual measurements relating to the left shoulder yet assessed an impingement yielding 2% WPI.
Furthermore, Dr Endrey-Walder did not expressly attribute the left shoulder injury or any of the reported symptomatology to the subject motor vehicle accident.
The insurer submits Dr Endrey-Walder has failed to explain how or why he came to an assessment of 2% WPI and how the injury is related to the motor vehicle accident.
The insurer relies on Dr Thomas Rosenthal’s report dated 7 March 2022 and submits his opinion should be preferred over Dr Endrey-Walder.
Dr Rosenthal found no signs of impingement in both shoulders and concluded there were no shoulder injuries related to the accident.
This is consistent with the findings of all experts, none of which report any accident-related left shoulder injury.
The claimant states in paragraph 5 of her submissions that Assessor Woo’s certificate dated 17 March 2022 reported "that the left shoulder injury is a consequential injury".
Assessor Woo reported he had accepted the left shoulder symptomatology was related to an aggravation of pre-existing condition during an assessment with Dr Porteous in 2018.
Assessor Woo further concluded this aggravation "should have ceased 6 months after the aggravation in 2018" and "the assessment of the range of motion is unreliable because of voluntary guarding".[12]
[12] A3.
The insurer says the claimant's submissions there had been a consequential injury to the left shoulder through overuse is baseless, noting all experts and Assessor Woo did not assess any current symptomatology in the left shoulder which is related to the accident or any consequential overuse.
The insurer submits the Panel should maintain its preliminary view any injury or symptomatology in the left shoulder is not related to the accident.
The claimant submits the right toe injury is related to the accident and Assessor Woo erred in his assessment of the right toe.
The claimant relies on Dr Endrey-Walder’s report dated 4 June 2020 who reported the claimant had suffered from right big toe symptoms in the days following the motor vehicle accident and the big toe remained sore thereafter.
The insurer submits this is incorrect as there is no evidence of complaints regarding any big toe injury or symptomatology until 22 May 2017, approximately four months following the subject accident where the claimant complained of right toe pain to her general practitioner (GP), Dr Sureshwaran.
The insurer highlights the complaints made to Dr Sureshwaran were seemingly not considered by that doctor to be related to the subject accident.
Furthermore, when the claimant was examined by Dr Rosenthal, she reported she "thought" the right big toe might be related to the accident.
The first record of a complaint considered relevant to the motor vehicle accident is on 28 June 2018, over a year and four months post-accident. Upon consulting her treating rheumatologist Dr Oliver on 28 June 2018 for right big toe issues, the claimant did not mention a history of the accident or any preceding injury. Dr Oliver recorded a family history of rheumatoid arthritis and diagnosed early osteoarthritis, which supports a finding the alleged injury is genetic, pre-existing, and unrelated to the accident.
The insurer submits the expert evidence from Dr Endrey-Walder is not compelling as he had reported the right toe injury is related to the motor vehicle accident but failed to disclose what evidence he relied on to reach this conclusion.
The insurer relies on Dr Rosenthal and Dr McGill’s reports who concluded there was no right toe injury or symptomatology attributable to the subject motor vehicle accident.
THE PANEL’S FINDINGS
Ms Pennicuik attended the medical suites at the Commission on 31 August 2022 and was unaccompanied. Assessors Assem and Moloney undertook the examination and interview on behalf of the panel.
Clinical examination
Ms Pennicuik walked into the rooms with a normal gait and sat comfortably during the interview. She states she is right-handed. Height was measured at 160cm and weight 85.40 kg. There were widespread psoriatic skin lesions on upper and lower limbs.
Pre-accident history
Ms Pennicuik stated she had been in good health prior to the accident. She was at present living with her partner at Richmond. Her employment has been working in IT and with Woolworths since 2004. She has chronic psoriasis which was previously treated with methotrexate but ceased due to side-effects.
There was a significant right ankle injury in 2010 which results in an arthroscopy with ligament reconstruction. She had fractured her right wrist after falling off a horse which was treated with external fixation of K wires and had a full recovery. There was a report of left shoulder pain in 2012 which was diagnosed bursitis.
History of motor accident and ongoing treatment
Ms Pennicuik was the driver of her car on 8 February 2017, which was stationary when a larger car struck it from behind. She was wearing a seat belt at the time and airbags were not deployed. She states she had her right foot on the brake and felt she was thrown forward. The police or ambulance did not attend the accident scene and she was able to drive home.
Ms Pennicuik states she was barefooted at the time of the accident whilst driving. There was initial pain in the neck and right shoulder with soreness in the right big toe which had impacted the brake. She states initially the left shoulder was asymptomatic, but she had a slight limp.
Ms Pennicuik says she consulted her GP on 29 March 2017 which was six weeks after the accident and a chiropractor who treated her right shoulder. Due to persistent pain in the right big toe, her GP organised an X-ray on 7 April 2017. Due to persistent neck pain an X-ray of the cervical spine was also organised.
Her GP’s notes show her first attendance at her GP regarding the accident was on
5 May 2017 and her right big toe is not noted.[13][13] AD1 page 321.
Ms Pennicuik attended her GP again on 25 May 2017, which noted “also foot (OA)”.[14] “OA” refers to osteoarthritis in clinical notes. There is also an X–ray from 22 May 2017 of Ms Pennicuik’s right foot[15].
[14] A1 page 322.
[15] AD1 page 336.
The further note on 6 July 2017 says “…also foot pain-not sure of relation to her MVA”.[16]
[16] AD1 page 323.
Her GP referred her to a rheumatologist Dr Oliver who consulted her on
28 June 2018[17]. Dr Oliver recorded a full range of movement of the shoulders and cervical spine and a swollen and tender right big toe MTP joint. Dr Oliver also recorded there was slight swelling in the left big toe. A cortisone injection was organised for the right big toe but gave no improvement. The chiropractor and physiotherapist continue to treat the neck shoulder and right big toe.[17] AD1 page 266.
No other accidents were recorded since the initial car accident.
Current symptoms
At present Ms Pennicuik has persistent right sided neck pain which radiates into the right trapezius muscle. This increases with driving more than 20 minutes. There was a slight ache in the right shoulder at rest, but she feels this has improved. She gets tingling in the right fifth finger and ulnar side of the right ring finger. This tingling started about 1½ years ago. The left shoulder and arm are asymptomatic.
The right big toe is reported as still painful and constantly swelling. She states it feels hot and is more comfortable wearing a shoe. There is now slight swelling in the left big toe. Sleeping is disturbed due to pain in the neck or right big toe. She is able to walk normally but has some soreness in the right big toe when doing so.
Present medication
At present, Ms Pennicuik takes Pristiq 50mg one-a-day, Paracetamol a few per week and occasionally Panadeine forte. Recurrent migraines are treated with Anagraine. She consults a chiropractor about once per month and no longer has any physiotherapy which she feels was beneficial. Ms Pennicuik continues to do home exercises.
Cervical spine
On inspection of the cervical spine there was a normal contour and on testing range of movement a normal range of flexion/extension. Rotation to the left was full range and 80% to the right as was side bending. On palpation there was no guarding or spasm.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power. No sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 34cm on the right and 34.5cm on the left (10cm above the olecranon process) and in the upper forearms 27cm bilaterally.
Shoulders
On palpation of the shoulders, no tenderness was noted and on passive movement no crepitus was detected. Active measurements were recorded using a goniometer and repeated three times.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 110°/120° | 180° |
| Extension | 50° | 60° |
| Adduction | 40° | 50° |
| Abduction | 110°/100° | 180° |
| Internal Rotation | 70° | 90° |
| External Rotation | 80° | 90° |
The examiners noted there was a deterioration in the right shoulder movement and improvement in the left shoulder. Ms Pennicuik could not explain why this happened. It was discussed with her previously there had been a full range of movement of the right shoulder as recorded by the treating rheumatologist, Dr Oliver in June 2018. The examiners discussed with her that due to this variation in range of movement it was not possible to assess impairment by this method.
Right big toe
On testing range of movement, there was 40° of extension at the MTP joint and flexion at the interphalangeal joint, which was within normal range. On inspection there was swelling of the right big toe with some erythema. The swelling was moderate on the right toe and mild on the left big toe. There were significant bunions on both feet (hallux valgus) which was worse on the right.
Panel deliberations
The Panel recorded dysmetria of the cervical spine which is 5% WPI.
The Panel notes on 28 June 2018 Dr Oliver recorded full range of movement to both shoulders. Various medico-legal reports such as by Dr Rosenthal, Dr Porteous and Dr Endrey-Walder recorded near-normal range of movement of the right shoulder. The treating GP did not record right shoulder pain until 14 September 2020 but had initially noted right scapula and upper thoracic pain.
The Panel determined if there was an initial soft tissue injury to the right shoulder due to the seatbelt restraint, this had resolved by the time she consulted her treating rheumatologist, Dr Oliver.
Ms Pennicuik also stated her left shoulder became dramatically worse after a medico-legal examination was undertaken with force. However, this seems to have resolved with normal range of movement at the time of our examination.
There was no evidence of an overuse injury to the left shoulder.
There is no right big impairment due to the subject accident.
The right big toe now has a normal range of movement at the MTP and IP joint. The Panel’s opinion is the swelling—which is apparent at the time of our examination—is not an injury due to the accident.
The treating rheumatologist, Dr Oliver did not consider the right big toe swelling was of traumatic origin with a normal X-ray. She noted the left big toe was also swollen as the Panel did at the time of the recent examination. Both big toes had a normal range of movement and persistent isolated joint swelling is more likely to be of a rheumatological origin and therefore not caused by the subject accident. The impairment rating it would attract if the toe’s condition was linked to the accident would be 0% permanent impairment.
There were no pre–existing impairment to be deducted.
Panel’s decision
The Panel found the motor accident WAS a cause of the following injuries:
· cervical spine – soft tissue injury, and
· right shoulder – soft tissue injury.
The Panel found the motor accident was NOT a cause of the following injuries:
· right big toe – soft tissue injury, and
· left shoulder – soft tissue injury.
The Panel found the following injury was resolved and gives rise to no assessable impairment:
· right shoulder – soft tissue injury.
The Panel considered the following injury gives rise to a permanent impairment:
·cervical spine.
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | Chapter 3, page 110, Table 73 | Yes | 5% | 0% | 5% |
| 2 | Right shoulder | Chapter 3 | Yes | 0% | 0% | 0% |
* %WPI = percentage whole person impairment
Determination regarding the injured person’s degree of permanent impairment as a result of the injuries caused by the motor accident
The total percentage permanent impairment for assessed injuries caused by the motor accident is 5%, therefore the total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates there was an injury caused by the motor accident and there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Permanent impairment
The Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the motor accident are different to the findings as stated in Assessor Woo’s Permanent Impairment Certificate.
Assessor Woo decided the motor accident caused the following injuries:
• cervical spine – soft tissue injury;
• right big toe – soft tissue injury;
• left shoulder – soft tissue injury, and
• right shoulder – soft tissue injury.
Accordingly, the Panel has determined this certificate is to be revoked and a new Permanent Impairment Certificate has been issued by the Panel.
Member O’Riain, Assessor Moloney and Assessor Assem have viewed this certificate and confirmed they are in agreement.
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