QBE Insurance (Australia) Limited v Bucca
[2024] NSWPICMP 12
•9 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Bucca [2024] NSWPICMP 12 |
| CLAIMANT: | Carolyn Bucca |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 9 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured in a motor accident on 17 April 2017 when a buggy collided with her whilst she was attending the Royal Easter Show; the dispute related to the assessment of permanent impairment arising from respiratory/sleep disorder; Medical Assessor (MA) found that the claimant’s chronic insomnia and sleep fragmentation was caused by the accident and give rise to a whole permanent impairment of 8%; the insurer sought review; Held – the claimant suffers chronic pain as a consequence of her physical injuries and in particular to her left foot and this pain keeps her awake; the sleep disorder is a consequence of pain, rather than a separate sleep condition, respiratory condition or a neurological condition, none of which have been diagnosed and were not evident on clinical history or examination on the Panel’s re-examination; clause 1.38 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) provides that an allowance is made for associated pain in the impairment percentages pursuant to the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4); because the pain condition is not assessable separately from the physical conditions, the sleep dysfunction which arises from the pain is also not separately assessable for the purposes of whole person impairment; furthermore, the Guidelines provide no scope of assessment of sleep disorders outside of those arising from a neurological disorder; the claimant has chronic musculoskeletal pain and there is no evidence to suggest a separate respiratory or neurological diagnosis; there is a pain condition arising from physical injury which leads to sleep disturbance which is not an assessable impairment pursuant to the Guidelines; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Grainge dated 12 November 2021. 2. The Review Panel certifies that there is no assessable permanent impairment of the claimant as a result of the following injury caused by the accident: (a) respiratory/sleep disorder. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Carolyn Bucca, suffered injuries in a motor accident on 17 April 2017 when a buggy collided with her whilst she was attending the Royal Easter Show at Olympic Park in Sydney, New South Wales (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
QBE Insurance (Australia) Pty Ltd (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under 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 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 MAC Act.
The claimant alleges that she suffered impairment to the following body parts caused by the accident:
(a) left ankle;
(b) left elbow;
(c) left foot;
(d) hallux vulgus;
(e) left toes;
(f) right knee ;and
(g) respiratory system.
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 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Grainge and is dated 12 November 2021. Medical Assessor Grainge found that the injury to the claimant of chronic insomnia and sleep fragmentation gives rise to a permanent impairment of 8% and is not greater than 10%.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the insurer on 23 December 2021.
On 31 March 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Pursuant to s.63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
Part 5 of 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 medical assessor.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[4]
[4] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
On 4 November 2022, the claimant was examined by Medical Assessor Gibson.
THE ASSESSMENT UNDER REVIEW
The following injury was referred to Medical Assessor Grainge for assessment:
(a) respiratory/sleep disorder.
During his examination, Medical Assessor Grainge questioned the claimant in relation to any sleep disorder she had suffered prior to the accident. Whilst she initially denied it, he referred her to a letter from her general practitioner dated 4 August 2014 stating that she was anxious and unable to sleep and also to a note written on 11 February 2015 stating insomnia, and a letter from her psychologist dated 6 March 2015 making a diagnosis of Post Traumatic Stress Disorder with sleep disruption, which the claimant acknowledged. She described the sleep disturbance in 2014 and 2015 as insomnia with inability to initiate sleep secondary to intrusive persistent thoughts which she attributed to an ongoing bullying and harassment issue at work and said that her sleep disturbance resolved along with the work issues when she changed employment in May 2015 and that it had completely resolved up until the subject accident.
Medical Assessor Grainge recorded a history of the accident on 17 April 2017. The claimant said that she was attending the Sydney Royal Easter Show when she was hit from the side by an 8-seat electric buggy which resulted in foot and elbow injuries. She said that despite the surgery that she underwent after the accident she still has chronic pain and discomfort from her left foot injury and also from her elbow.
Medical Assessor Grainge obtained a history from the claimant that since the accident she now retires to bed around 10.00pm and 11.59pm and suffers prolonged initiation of sleep which can be up to an hour or two, which said is due to distressing and recurring thoughts, especially regarding her legal proceedings and also due to pain and discomfort in her foot and elbow. She said that her sleep is disrupted. She wakes subjectively three or four times during the night with reinitiation of sleep taking between 20 to 60 minutes. The sleep disruption occurs as she is awoken by pain and cramps most commonly in her foot.
She said she rises from bed at 8.15 in the morning and that in order to address her sleep difficulties she uses the Head Space Ap and has seen Dr Lowe, a clinical psychologist. Since her subjectively disordered and disrupted sleep, the claimant complaints of subjected memory issues with difficulty concentrating, and on testing by Medical Assessor Grainge had an Epsworth Sleepiness Score of 16
Since the accident the claimant said that she continues to suffer prolonged initiation of sleep at night which she attributes to stressing and recurrent thoughts, especially regarding her legal proceedings and also due to pain and discomfort, especially in her foot, but also in her elbow. She is using the Head Space App and is seeing David Low, clinical psychologist, who has instigated a program of meditation.
Medical Assessor Grainge noted the reports by the two respiratory and sleep physicians, Dr David Friberg dated 7 August 2020 and Dr Anup Desai dated 23 February 2021, which both essentially concluded that the claimant has a sleep fragmentation or abnormality secondary to chronic discomfort and pain in her foot which results in daytime hypersomnolence.
Medical Assessor Grainge made a diagnosis of sleep fragmentation leading to daytime hypersomnolence. In his opinion this sleep fragmentation is not due to obstructive sleep apnoea, but that the frequent arousals the claimant suffers from result in a similar outcome, ie. that of daytime hypersomnolence.
With regards to causation, in the opinion of Medical Assessor Grainge, the injuries sustained by the claimant in the accident, physical damage to her leg and elbow, have resulted over time in chronic pain and hypersensitivity which have led to her having repeated subjective and objective awakenings and micro-arousals which lead to the sleep disruption and daytime hypersomnolence. Medical Assessor Grainge noted that it is well recognised that physical injury can lead to sleep disorder especially in the circumstances where physical injury leads to inability to exercise and weight gain, leading to obstructive sleep apnoea. In his opinion the claimant’s physical injury has led to sleep disruption secondary to awakenings and micro-arousals.
In the opinion of Medical Assessor Grainge, the claimant has sleep fragmentation due to the accident which occurred many years ago. Whilst it is likely that she had a previous disposition to sleep fragmentation, prior to the accident she did not have this disorder and the chronic pain and hypersensitivity from her physical disorder has led to sleep fragmentation and insomnia.
Medical Assessor Grainge concluded that the claimant’s chronic insomnia and sleep fragmentation caused by the accident give rise to a whole person impairment of 8%.
REVIEW OF MEDICAL ASSESSOR HOLME’S DETERMINATION
Medical Assessor Home assessed the claimant on 25 June 2021 and issued a certificate dated 7 July 2021 in which he certified that the following injuries caused by the motor accident give rise to a permanent impairment of 12% and is greater than 10%:
(a) left ankle restricted motion secondary to a period of immobilisation;
(b) left elbow soft tissue injury, chronic olecranon bursitis;
(c) left foot bursitis, dysesthesia, superficial peroneal nerve involvement;
(d) hallux vulgus – surgically corrected;
(e) left foot scarring;
(f) left toes crush injuries bursitis, neurectomy, and neurotomy surgery, and
(g) right knee secondary injury direct blow soft tissue injury.
Medical Assessor Home issued a Combined Certificate dated 8 December 2021 certifying that the combined permanent impairment is 19%.
The insurer lodged an application for review of the assessment certificate of Medical Assessor Home on the basis that the assessment was incorrect in material respect. On 30 March 2022, the President’s Delegate accepted that review application and referred it to a Review Panel, being matter no. R-M10478735/21.
The Review Panel which was constituted to determine the review of the certificate of Medical Assessor Home is the same panel which was allocated the determination of the review application in relation to Medical Assessor Grainge’s Certificate – Member Thompson and Medical Assessors Cameron and Gibson.
STATUTORY PROVISIONS AND 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.[6] In Raina v CIC Allianz Insurance Ltd[7] 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.”
[6] See s 3B(2) of the CL Act
[7] [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.
MATERIAL BEFORE THE PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review of Medical Assessor Grainge’s certificate.
In response to these directions, the insurer uploaded to the portal at AD3 a final index and bundle of documents paginated from pages 1 to 831 (IB). The claimant subsequently uploaded to the portal an amended bundle of documents at AD5, paginated from pages 1 to 269 (CB).
The Panel has read and considered the documents relied upon by the parties on this review as identified in paragraphs 35 and 36 above in making its findings and determinations.
SUBMISSIONS
[8] IB p 1.
These submissions were relied upon by the Insurer in its MAS 2R Reply to the claimant’s MAS 2A Application for assessment of the permanent impairment dispute.
In summary, whilst the insurer did not dispute that there is a disagreement between the parties as to the claimant’s degree of whole person impairment, it submitted that the allocation of the dispute to a Medical Assessor ought to be deferred so as to allow the insurer reasonable time to obtain evidence in response to the expert evidence relied upon by the claimant.
Insurer’s further MAS submissions[9]
[9] IB p 582.
The insurer made these further submissions in response to the claimant’s MAS 2A Application for assessment of the whole person impairment dispute. The insurer’s position is that the claimant did not sustain any physical or psychological injuries in the accident that give rise to impairment of greater than 10%.
These submissions include submissions in relation to the following injuries:
(a) left elbow;
(b) left foot/ankle;
(c) right knee;
(d) respiratory/sleep disorder; and
(e) psychological injury.
The insurer disputed that the claimant sustained any respiratory or sleep disorder in the accident and gives rise to a degree of whole person impairment pursuant to AMA 4 and the Permanent Impairment Guidelines (the Guidelines)[TR1] [CT2] .
The insurer noted that the claimant has a pre-accident history of insomnia and poor sleep complaints and refers to attendances on her general practitioner on 11 February 2015 and Dr Oldtree-Clark on 6 March 2015.
The insurer further submits that following the accident, sleep-related complaints are not raised by the claimant until 3 September 2019, some two and a half years later.
The insurer submits that this delay is significant in causing to question the causal link between the accident and the claimant’s alleged sleep difficulties.
The insurer further submits that the pre-accident records detail a link between the claimant’s psychological symptoms and poor sleep. In particular, the consultation immediately before sleep difficulties were raised, revealed that the claimant was struggling with the imprisonment of her son in the context of him also undergoing a right leg amputation in March 2018 and submits that the Medical Assessor should carefully consider the clinical records in determining whether a sleep or respiratory disorder is genuinely related to the accident.
The insurer refers to the joint report of the respiratory and sleep physician, Dr Anup Desai, dated 23 February 2021 and submits that the whole person impairment assessment of Dr Desai is incorrect and impermissible under AMA4 and the Guidelines.
It submits that Chapter 4 of AMA 4 which Dr Desai has utilised in formulating his assessment of 8% whole person impairment is titled ‘The Nervous System’ and applies to evaluating permanent impairment resulting from ‘dysfunction of the brain, brain stem, cranial nerves, spinal cord, nerve roots and peripheral nerves[TR3] [CT4] ’ [emphasis in original] and no such injury has been alleged in the context of the subject claim.
The insurer submits that the application of section 4.1 of Chapter 4 of AMA 4, which it titled ‘The Central Nervous System – Cerebrum or Forebrain’ is predicated on there being a brain impairment, and submits that no such injuries have been alleged by the claimant or identified in the clinical records that would enable Dr Desai to make an assessment of whole person impairment under this section.
The insurer submits that section 4.1, and therefore an assessment of sleep and arousal disorders, requires the presence of a diagnosed disorder of the forebrain/neurological impairment, and Table 6, which was utilised by Dr Desai in providing his whole person impairment assessment requires there to be some sort of nerve impairment.
The insurer submits that Dr Desai did not conduct a neurological evaluation or purport to diagnose any neurological impairment, consistent with the opinion of Dr Walker, who considered there was no neurological impairment relating to the subject accident.
It submits that Dr Desai did not diagnose a respiratory sleep disorder, and that because he did not diagnose a neurological forebrain condition, he has incorrectly applied the AMA 4 and the Guidelines to formulate his whole person impairment assessment and should merely have certified that the claimant did not suffer from a physical sleep fragmented condition and that there was no whole person impairment. It further points to the primary diagnosis of Dr Desai of ‘chronic pain’ [TR5] [CT6] [emphasis in original] as opposed to a sleep related or neurological disorder and that the treatment recommended by Dr Desai was strictly related to psychological treatments, specifically consultations with a sleep psychologist and a pain specialist.
The insurer further submits that the opinion of Dr Freiberg, respiratory and sleep physician, which was qualified by the claimant, similarly draws a link between the claimant’s chronic pain complaints and her alleged sleeping difficulties. Dr Freiberg assessed a ‘significant sleep fragmentation[TR7] [CT8] ’ [emphasis in original] on the background of chronic pain giving rise to a 10% whole person impairment. It submits that Dr Freiberg’s report is inadequately detailed and relies overtly on the claimant’s self-reporting and in particular, despite accepting the claimant’s reported incapacities, Dr Freiberg does not address the claimant’s continued engagement in post-accident employment.
Further, the insurer submits that Dr Freiberg conducted his whole person impairment assessment pursuant to AMA 5[TR9] [CT10] rather than AMA 4 and that accordingly this assessment should not be relied upon for the purposes of determining this dispute.
Insurer’s review application submissions[10]
[10] IB p 804.
The insurer submits that there is more than a reasonable cause for suspicion that Medical Assessor Grainge’s assessment is incorrect in a material respect for the following reasons:
(a) failing to engage with material and breach of procedural fairness;
(b) failure to identify and put inconsistencies to the claimant and to address the issues raised in the parties’ submissions;
(c) errors in his whole person impairment assessment, and
(d) failure to provide adequate reasons.
The insurer submits that Medical Assessor Grainge failed to engage with a significant portion of the relevant materials provided to him by the parties and that this calls into question the basis upon which he made his diagnosis and whole person impairment assessment and therefore the accuracy of same and that omission amounts to a breach of procedural fairness to both parties. It submits in particular, that whilst Medical Assessor Grainge discussed the reports of Dr Freiberg and Dr Desai and select portions of the insurer’s submission, throughout his certificate there is no reference at all to a number of relevant reports from Dr Frank Machart, orthopaedic surgeon, Dr Grahame Vickery, psychiatrist, Mr John Raue and Ms Christine Leaver, vocational and functional assessors, Ms Catherine Caukill, occupational therapist, Dr Grant Walker, neurologist, Dr Thomas Rosenthal, occupational physician, Dr Todd Gothelf, orthopaedic surgeon, Ms Susie Mullen, occupational therapist, Dr Simon Coffey, orthopaedic surgeon, and Associate Professor Boesel, pain physician.
Whilst the insurer submits that Medical Assessor Grainge is a respiratory and sleep physician and was not required, or qualified, to provide a musculoskeletal or psychiatric diagnosis, it submits that it was incumbent upon him to have regard to the above material at least to some degree in circumstances where Medical Assessor Grainge’s diagnosis of Chronic Insomnia and sleep fragmentation was premised on his apparent acceptance that the claimant suffered from chronic pain and discomfort as a result of the injuries sustained in the accident.
The insurer submits that it is clear that the Medical Assessor premised his sleep diagnosis on the claimant’s alleged chronic pain symptoms and physical injuries, but that despite this, makes no reference to the expert reports that comment on those issues.
The insurer submits that the only reasonable conclusion that can be drawn from this is that Medical Assessor Grainge failed to have regard to those expert reports and opinions regarding the claimant’s physical condition, and that he instead based his diagnosis primarily on the claimant’s self-reporting of physical pain symptoms and a series of assumptions as to same. It submits that such an approach is wholly inadequate especially when the expert evidence before the Medical Assessor with respect to those issues disclosed widely varying diagnosis and opinions on causation, and refers in particular to the opinions of Dr Machat, Dr Walker and Dr Vickery. The insurer submits that in the absence of any comments on the opinions of these experts, the parties are simply unable to ascertain how Medical Assessor Grainge made use of that evidence and can only speculate, and that the only reasonable conclusion that can be drawn is that the Medical Assessor elected to ignore views that were contrary to the claimant’s self-reporting and clear procedural fairness.
The insurer submits that an assessment of whether or not the claimant’s complaints were sufficient to cause the sleep symptoms alleged could only reasonably be made by the Medical Assessor actively considering the expert musculoskeletal and neurological assessments provided by the parties rather than simply relying on the claimant’s self reporting, particularly in the circumstances here where was required to correct the claimant on her self-reported pre-accident history of sleep difficulty. The insurer submits that because Medical Assessor Grainge is not an orthopaedic specialist, neurologist or psychiatrist it was necessary for him to have regard to the above expert reports to ensure his assessment was not conducted in a vacuum and to gage his diagnosis.
Whilst the insurer acknowledges that was entitled to form his own opinion based upon his assessment[11] it submits that this does not permit him to ignore the evidence before him especially when his diagnosis is premised on an acceptance of a separate medical condition/symptoms.
[11] Garcia v Motor Accident’s Authority [2009] NSWSC 1056.
The insurer submits that in the circumstances where there is no mention of this material in Medical Assessor Grainge’s certificate, the only reasonable conclusion that can be drawn is that he failed to “have regard” to that material and therefore fell into material error, given the clear evidence of those records to Medical Assessor Grainge’s diagnosis.[12]
[12] See Najt v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
The insurer further submits that failed to properly identify inconsistencies in the claimant’s presentation/self-reporting and put them to the claimant to comment, and in so doing, he failed to address substantive issues and inconsistencies that were raised in the insurer’s submissions.
The insurer refers to clause 1.41 of the Guidelines which requires that where there are inconsistencies between the Medical Assessor’s clinical findings and information obtained through medical records and/or observations for non-clinical activities, the inconsistencies must be brought to the injured persons attention and the injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.
The insurer contends that whilst Medical Assessor Grainge accurately identified that the claimant’s denial of pre-accident sleep disorder symptoms was inconsistent with the claimant’s self-reporting, he failed to identify/acknowledge other consistencies which are raised in the insurer’s submissions and which went directly to the issue of causation and in particular refers to paragraph 66 of its submissions in which it was noted that the records from Lower Mountains Family Practice confirmed that sleep-related complaints were not raised by the claimant until 3 September 2019, some 2.5 years after the subject accident, and submits that these clinical records clearly called into question whether the claimant’s sleep complaints were attributable to physical or psychological symptoms or the subject accident at all, and the claimant self reporting that she suffered from sleep disorder symptoms since the motor vehicle accident is inconsistent with the clinical records which confirm those symptoms did not emerge until 2.5 years after the collision occurred.
The insurer submits that the Medical Assessor was obligated to put this issue to the claimant and make it clear to the parties how this inconsistency impacted upon his assessment or how he reconciled his determination with the identified inconsistency.
Further, the insurer submits that failed to provide any comment [TR11] [CT12] with respect to the clinical records suggesting the claimant’s sleep issues were attributed to unrelated personal stressors, such as the claimant struggling with the imprisonment of her son and his leg amputation in March 2018, but instead took a history from the claimant that her sleep injuries were due to her personal injury claim and physical pain complaints.
It submits that the history taken by the Medical Assessor is demonstrably [TR13] [CT14] inconsistent with the clinical records, meaning that his diagnosis and opinion are unable to be reconciled through a reading of the certificate.
The insurer also submits that did not afford procedural fairness to the parties by failing to address these inconsistencies and the insurer’s submissions with respect to this issue, and that given that these issues were explicitly highlighted in the insurer’s submission, the Medical Assessor had an increased obligation to respond to same, relying upon the decision of the New South Wales Supreme Court in AAI Limited v Fitzpatrick [2015] NSWSC 1108.
The insurer further submits that Medical Assessor Grainge was not permitted to provide his diagnosis or whole person impairment assessment under AMA 4, and, in the alternative, submits that he erred in the manner in which he conducted and formulated his assessment of whole person impairment related to the claimant’s chronic insomnia and sleep fragmentation, referring to the fact that the insure explicitly raised the issue as to whether any degree of whole person impairment was permitted to be separately assessed by Dr Desai and Dr Freiberg in its submissions, which the Medical Assessor failed to take into account when conducting his own whole person impairment assessment, and thereafter fell into the same error as Dr Desai.
The insurer submits that Chapter 4 of AMA 4, which pertains to the assessment of sleep and arousal disorders, and which was utilised by Medical Assessor Grainge in formulating his assessment, is titled “The Nervous System” and expressly provides that it applies to evaluating permanent impairment resulting from “dysfunction of the brain, brain stem, coronial nerves, spinal cord, nerve routs and peripheral nerves”. Its submits that no such injury has been alleged in the context of the subject claim and accordingly Chapter 4 of AMA 4 is not applicable.
The insurer submits that in the absence of any respiratory condition, for an arousal or sleep disorder to be assessable, it must fall within the scope of Chapter 4, that is, it must be referable to a nervous system impairment. In support of this submission, the insurer refers to sub-section 4.1e of Chapter 4 which is entitled “Episodic neurological disorders” and contains Table 6, and in particular refers to pages 143 to 144 of AMA 4 with respect to the impairment attributable to sleep disorders. The insurer submits that because Medical Assessor Grainge diagnosed sleep fragmentation due to chronic pain from the left foot and left elbow, Chapter 4 was not applicable.
The insurer submits that Medical Assessor Grainge did not conduct a neurological evaluation or purport to diagnose any neurological impairment, and that in circumstances where Dr Walker considered there was no neurological impairment related to the subject accident, it is particularly relevant that Medical Assessor Grainge failed to have regards to Dr Walker’s opinion at all.
Further, the insurer submits that Medical Assessor Grainge did not diagnose a respiratory sleep disorder at all, but instead diagnosed sleep fragmentation related to chronic pain. Medical Assessor Grainge explicitly stated on page 5 of his certificate that “this sleep fragmentation is not due to obstructive sleep apnoea, but the frequent arousals result in a similar outcome ie. that of daytime hypersomnolence”. However, later in his report, Medical Assessor Grainge states that the injuries sustained by the claimant in the motor vehicle accident, being the physical damage to her leg and elbow, have resulted in “chronic pain and hypersensitivity which have led to her having repeated subjective and objective awakenings and micro arousals which have led to the sleep disruption and daytime hypersomnolence” and that in this circumstance “physical injury has led to sleep disruption secondary to awakenings and micro-arousals”.
The insurer further notes that Medical Assessor Grainge stated on page 4 of his certificate that the claimant’s respiratory examination was unremarkable. It submits that in circumstances that where the Medical Assessor did not diagnose a respiratory sleep disorder and where he did not diagnose a neurological forebrain condition, he has incorrectly applied AMA 4 and the Guidelines by assessing any degree of permanent impairment attributable to a “sleep disorder”. He ought to have determined that the claimant did not suffer from a respiratory sleep condition, such as sleep apnoea, and thus assessed no whole person impairment, rather than proceeding to diagnose sleep fragmentation attributable to chronic pain, and in doing so, he erred by incorporating an assessment of pain which is expressly prohibited by the applicable guidelines. Particularly it refers to Chapter 15 of AMA 4 which explicitly recognises that the impairment percentages in various chapters make an allowance for the pain that accompanies the impairing conditions, and clause 1.38 of the Guidelines which provides that because of the difficulties of objective measurement, medical assessors must not make separate allowances for permanent impairment due to pain and that Chapter 15 of AMA 4 must not be used, and further that each chapter of AMA 4 includes an allowance for associated pain and the impairment percentages.
The insurer submits that the claimant’s left elbow and left foot injuries have been separately referred to other assessors, namely Medical Assessor Home, who attributed whole person impairment to those injuries, and that pursuant to clause 1.38 of the Guidelines, Medical Assessor Home’s assessment of whole person impairment fundamentally includes and allowance for associated pain in the impairment percentages of those injuries.
It submits that by diagnosing sleep fragmentation due to chronic pain from the left elbow and left foot, Medical Assessor Grainge has materially erred by both attributing impairment to pain and overlapping an assessment of whole person impairment that has already been assessed/taken into account.
The insurer further submits that Medical Assessor Grainge fell into error by relying on section 5.3 of his assessment in circumstances where that section (page 163 of AMA 4) relates to the “Respiratory System”, because Medical Assessor Grainge did not diagnose a respiratory sleep condition and found that the claimant’s respiratory examination to be unremarkable.
Whilst the insurer disputes that Medical Assessor Grainge’s diagnosis is valid or permissible under AMA 4, it also submits, in the alternative, that the Medical Assessor nevertheless erred in the actual assessment of whole person impairment by failing to take into account necessary considerations and/or provide an adequate explanation for his assessment of 8% whole person impairment as required by AMA 4 and the Guidelines, referring in particular to clause 1.71 of the Guidelines and Table 6, page 143 of AMA 4 which is located in section 4.1e entitled “Episodic Neurology Disorders”. It submits that whilst Medical Assessor Grainge assessed 8% whole person impairment for the claimant’s sleep fragmentation and daytime hypersomnolence, he failed to provide any adequate explanation or rational as to how or why he reached this particular rating, as opposed to any other rating between 1% and 9% and nor did he provide any explanation as to why the claimant’s sleep fragmentation ought to be placed towards the upper end of the range. It submits that Medical Assessor Grainge was also required to specifically enquire into, or identify, the estimated “effects on daily activities” when assessing permanent impairment, but instead, Medical Assessor Grainge failed to make those enquiries and/or failed to identify his findings to the parties in his certificate so as to justify his whole person impairment assessment.
The insurer submits that whilst Medical Assessor Grainge routinely in his certificate asserted that the claimant suffered from daytime hypersomnolence, he provides no further commentary or explanation as to what impact, if any, this hypersomnolence has on the claimant’s capacity to engage in her daily activities as required by page 143 of AMA 4, and therefore it is entirely unclear what impact the Medical Assessor considered the hypersomnolence was actually having on the claimant’s capacity for employment/work, household chores and social interactions, so as to justify an assessment rating of 8% whole person impairment, and he ought to have provided sufficient reasons to explain how and why he reached this particular assessment so as to remove any doubt that the 8% rating is arbitrary and not capable of justification. In particular, the insurer contends that the Medical Assessor does not provide any comment or take any history as to the causation between the claimant’s daytime hypersomnolence and her daily functioning, when it was critical for the Medical Assessor to discuss what impact the hypersomnolence was having on the claimant’s daily activities to enable the parties to ensure that there was no overlap in his whole person impairment assessment, ie. to ensure that this assessment was not unreasonably incorporating restrictions that had otherwise been identified and attributed to musculoskeletal or psychiatric symptoms.
Finally, the insurer further submits that Medical Assessor Grainge failed to provide adequate reasons as to why he failed to engage with the above relevant material, not raise inconsistencies regarding the emergence of the claimant’s sleep symptoms or to explain his whole person impairment assessment of 8% as required by s 61(9) of the MAC Act. It also submits that the obligation to provide reasons is also entrenched in common law referring to the decisions in AAI Limited v Fitzpatrick [2015] NSWSC 1108 and Sadsad v NRMA Insurance Limited and ORS (2014) 57 MVR 601.
The insurer submits that Medical Assessor Grainge failed to explain why he did not have regard to the relevant expert material provided by the parties with respect to the claimant’s musculoskeletal and psychological injuries in circumstances where his diagnosis of chronic insomnia with sleep fragmentation was premised on his acceptance that the claimant suffered from chronic pain attributable to the left elbow and foot injuries, and that in the circumstances it is impossible to ascertain what the Medical Assessor made of those experts or what impact, if any, they had on the diagnosis and whole person impairment assessment, and that he also failed to provide adequate reasons as to what he made of the claimant’s 2.5 year delay in reporting sleep symptoms after the occurrence of the subject accident, and clearly failed to provide adequate reasons with respect to his whole person impairment assessment under Table 6, page 143 of AMA 4.
The insurer submits that Medical Assessor Grainge’s failure to provide adequate reasons with respect of these issues constitutes a material error, given the clear relevance of those issues to causation, diagnosis and the whole person impairment assessment, and that in the absence of adequate reasons, submits that one is unable to properly understand how the Medical Assessor reached his determinations from a reading of the certificate, and that the Medical Assessor’s failure to adequately explain key aspects of his determination gives rise to a reasonable cause to suspect that the medical assessment is incorrect in a material respect.
The insurer submits that there is more than a reasonable cause to suspect that the assessment of Medical Assessor Grainge is incorrect in a material respect so as to have the matter referred to a Review Panel pursuant to s 63 of the MAC Act.
Claimant’s reply submissions to insurer’s review application of Medical Assessor Grainge[13]
[13] CB p 8.
The claimant submits that Medical Assessor Grainge did not make an error in his assessment and that if there was an error, the error was not in a material respect.
The claimant submits that Medical Assessor Grainge reviewed all of the factual, medical, treatment and medical expert evidence submitted by the parties in addition to his medical examination and assessment conducted in the matter, and set out the relevant facts and made his diagnosis, as he is required to do so by the Guidelines, and disputes that any error has been demonstrated, even on a prima facie level in his Certificate and Reasons.
With regards to the insurer’s submission that Medical Assessor Grainge failed to consider the opinions of various other medical practitioners, the claimant submits that this submission surrounds the view that Medical Assessor Grainge did not make specific mention of these documents.
The claimant submits that Medical Assessor Grainge acknowledged in his reasons that he has considered all documents contained in both the Application and Reply, and submits that there is no need for the Medical Assessor to specifically refer to every document contained in the Application, and that the fact that Medical Assessor Grainge has seen and considered all the documents satisfies Clause 1.18of the Guidelines in that he has reviewed them.
With regards to the insurer’s submission that the Medical Assessor is required to consider and critique the opinions of other doctors, the claimant submits that the Medical Assessor only has an obligation to consider the objective evidence and findings on clinical examination, being for example, the degree of sleep disruption, and is not bound by the mere opinions of other medical practitioners, or the clinical findings of the other doctors. The clamant submits that the Medical Assessor merely needs to review and evaluate the available medical evidence and medico-legal reports (Clause 6.18 of the Guidelines), and further submits that pursuant to Clause 6.21 of the Guidelines, the evaluation should only consider the impairment as it is at the time of the assessment.
The claimant notes that Medical Assessor Grainge has considered all of the reports referred to by the insurer. He makes reference to the respiratory and sleep assessment of Dr Desai and Dr Freiberg and submits that there is no error in the Medical Assessor’s decision not to place significant weight on the mere opinions of other medical practitioners.
The claimant also submits that if an error is found in this regard, which is not accepted, it is not an error in a material respect. The basis of Medical Assessor Grainge’s Certificate is the relevant medico-legal reports of respiratory sleep physicians as well as his clinical examination, as per paragraph 6.21 of the Guidelines, and the opinions of other doctors are insignificant to that examination.
With regards to the insurer’s submission that the Medical Assessor failed to properly identify alleged inconsistencies in the claimant’s presentation, and accepted the unchallenged history of the claimant’s symptoms, the claimant entirely disagrees. It notes that the Medical Assessor noted the alleged inconsistency between the clinical records and the claimant’s presentation when he commented that, although the claimant initially denied any sleep disorder prior to the accident in question, when reminded of a letter from her general practitioner dated 4 August 2014 stating that she was anxious and unable to sleep, a note written on 11 February 2015 stating insomnia, and a letter written by her psychologist on 6 March 2015 making a diagnosis of Post Traumatic Stress Disorder with sleep disruption, she acknowledged that these had indeed happened.
The claimant submits that, in fact, Medical Assessor Grainge considered the opinion of Dr David Low, clinical psychologist, who in his report dated 18 January 2018 states that the claimant’s psychological condition was caused by the subject accident and not other “unrelated personal stressors”.
Contrary to the insurer’s submission that Medical Assessor Grainge failed to provide any comment with respect to the clinical records suggesting the claimant’s sleep issues were attributed to unrelated personal stressors, the claimant submits that, in fact, Medical Assessor Grainge did make such comments in slightly varied wording. The claimant submits that Medical Assessor Grainge notes the following in respect of causation:
“The injuries sustained by Ms Bucca in the motor vehicle accident, ie the physical damage to her leg and elbow, have resulted over time in chronic pain and hypersensitivity which have led to her having repeated subjective and objective awakenings and micro-arousals which lead to the sleep disruption and daytime hypersomnolence.”
In response to the insurer’s submission that Medical Assessor Grainge should have questioned the claimant about her inconsistent presentation on examination, the claimant submits that such questioning would be merely a trivial formality and would be insignificant to the assessment, given the extensive medical evidence available supporting the claimant’s injuries.
In the alternative, the claimant submits that, if there had been an error in this respect, which is not accepted, this error was not in a material respect. It is submitted that this would be trivial, insignificant and immaterial to the assessment, given that Medical Assessor Grainge had extensive evidence to support the claimant’s injuries.
With regards to the insurer’s submission that Medical Assessor Grainge erred in the manner in which he conducted and formulated his assessment of whole person impairment, the claimant submits that Medical Assessor Grainge has examined the claimant and has assessed 8% whole person impairment correctly and has not erred in that assessment. Under the heading “Diagnosis and reasons”, Medical Assessor Grainge notes the following:
“The reasons for this diagnosis are that objective assessment of Mrs Bucca’s sleep in conjunction with her subjective concerns detail that she has disrupted sleep with 19 awakenings and 16 micro-arousals per hour of which are abnormal”.
The claimant submits that on the one hand the insurer acknowledges that Clause 1.171 clearly states that Table 6 (page 143, AMA 4) must be used to assess sleep and arousal disorders, but, on the other hand, the insurer submits that the Medical Assessor used the wrong form of assessment, and this is confusing, misleading and unpersuasive.
In the claimant’s submission, Medical Assessor Grainge was required to use Table 6, and the fact that the table appears in the chapter entitled “The Nervous System” is irrelevant in the context of Clause 1.171, and moreover, page 143 states and precedes Table 6:
“Arousal and sleep disorders include disorders related to initiating and maintaining sleep or inability to sleep; disorders or excessive somnolence, including those associated with sleep-induced respiratory impairment; disorders of sleep-wake schedules; and dysfunctions associated with sleep, sleep stages or parasomnias.”
The claimant submits that this is clearly the type of disorder that Medical Assessor Grainge was dealing with and that he plainly dealt with the insurer’s submission on the issue at pages 4 to 5 and provided his reasons. He disagreed with the insurer’s submission, applying Table 6 correctly at page 6, and using his expert knowledge and discretion to determine 8% whole person impairment. The claimant submits that Medical Assessor Grainge has considered all of the available evidence provided to him and drawn his own conclusions from such evidence, based on his expertise.
The claimant further submits that on this basis, that the insurer has failed to demonstrate that the whole person impairment assessment was incorrect or that the percentage determined is likely to be different if assessed in a different manner and has therefore failed to demonstrate any material error.
With regards to the submission by the insurer that the Medical Assessor failed to provide adequate reasons in support of his determination, the claimant submits that the Medical Assessor does in fact provide clearly sufficient reasons at page 5 of his certificate, and that in addition to the other matters addressed by Medical Assessor Grainge, these reasons more than adequately disclose the actual path of reasoning by which the Medical Assessor arrived at the opinions formed. The claimant submits that the Medical Assessor is not required to go through all of the medical opinions and explain why he did or he did not disagree with them, particularly in terms of diagnosis. His obligation was to have regard to the presentation and history of the Claimant on the day of his medical examination and assessment and form the relevant diagnosis with all of the information and documents provided to him in the matter, which he did.
In conclusion, the claimant submits that Medical Assessor Grainge was able to independently formulate opinions that were clearly available to him through the medical material before him and the claimant’s clinical presentation, and there are no material errors in his certificate. He clearly had regard to all of the relevant medical evidence in the matter and there are no grounds upon which it could be said that he erred in his assessment. The claimant submits that Medical Assessor Grainge formed an objective opinion as is required by the Guidelines, and accordingly his determination should be upheld, and further submits that the insurer’s application should be dismissed as no material error or mistake has been demonstrated.
RE-EXAMINATION
The claimant was examined by Medical Assessor Gibson on 4 November 2022. The examination report is as follows:
“Ms Bucca attended unaccompanied to the assessment. She said a friend had taken the day off work to drive her in for the appointment.
Medical historyMs Bucca did not dispute the fact that her general practitioner’s consultation notes in 2014 and 2015 described her complaints of insomnia and that there had been referral to a psychologist because she was struggling with intrusive and persistent thoughts, which had arisen following workplace bullying and harassment. However, she maintained these issues had resolved once she moved jobs in May 2015.
She was diagnosed with COVID about twelve months ago. She said she had been unwell for about four days with fleeting joint pains and headache. She has since then had her fourth vaccination. She denied having had any long COVID symptoms.
She has suffered with migraine since age eighteen, and takes Imigran as required.She is a non-smoker and non-drinker, does not use recreational drugs, and has a few cups of coffee each day, but no more.
Occupational HistoryAt the time of the accident on 17 April 2017, Ms Bucca was working in Facilities Management at Spotless. She was Group General Manager of Health and Safety, and she had been in the job for three and a half years. The job involved significant travel all over Australia and also to New Zealand. She was working full-time, both office and site based. At some point after the accident, the company had been taken over by Downer and her role was then effectively redundant. She was offered a more junior position or the option of a redundancy. She said she took the redundancy as she was struggling at work due to the physical injuries she had sustained in the accident.
After taking the redundancy she had commenced work in a contract Health and Safety role with Beak Johnston. She worked there for twelve months. After that she found a contract Environmental Health and Safety role with Chubb. She has worked there now for about twelve months. She does a lot of work from home. She is required to travel to the main office in Rydalmere at times. She is also involved in site inspections, although this is restricted as she cannot wear steel cap shoes. She had last done a site inspection two weeks ago. She said she works between twelve and thirty hours per week, depending upon business requirements. She said she starts work at anywhere between 8.30am and 10am depending on “what sort of night I have had” Over the last week, she said that she had taken Monday off work as she did not feel well because she had had a very bad night’s sleep and consequentially headache and difficulty concentrating on the computer screen. On Tuesday of that week, she started work at 9am. She had some gaps during the day and had a 6pm online meeting with the UK Head Office. On Wednesday and Thursday of that week she started at 9am.She is enrolled in a law degree course through UNE, and she has completed half of the course. She said she paces herself with the studies. In the past, she had always tried to excel, but now a pass is good enough. She said she would spend a few hours during the week and a [TR15] [CT16] “good chunk of the weekend”studying.
History of the motor accident
Ms Bucca was at the Sydney Easter Show when she was struck by an 8-seat electric buggy. She sustained injuries to her left foot, left elbow, and right knee.
Current symptoms
Ms Bucca said she cannot recall having a solid night of sleep since the accident. On average, she wakes three times a night. On good nights she wakes only once, but on bad nights up to 6 times a night.
She described both difficulty initiating sleep and repeated waking due predominately to left foot pain and discomfort. For instance, she said that last night she went to bed at about 11.15pm and was woken at 1am with throbbing left foot pain. She took some paracetamol and went back to bed, but woke again at 3.15am with left foot pain and took two more paracetamol tablets. She finally awoke at 5.15am. Consequently, she felt very fatigued today.
She said her sleep pattern varies due to the degree of left foot discomfort she is experiencing. Symptoms including pain, cramping, and numbness and cold sensation in her left foot, and also aching of her right knee. She tries to go to bed between 10.30 pm and 11.15 pm. Some nights, she can manage to get to sleep quite quickly, however on other nights she finds that she is lying in bed for several hours, with thoughts going through her head. She became tearful as she described her issue with sleep and coping with the compensation processes. Her mother has also been unwell which adds to the stress.
She feels her memory is not as good as it was before, and she has to write a lot more down. Nevertheless, she said her work performance is good and she has achieved excellent results.Current and proposed treatment
Ms Bucca takes six to twelve paracetamol tablets per day. She is aware that twelve is in excess of the recommended dose. She takes one magnesium tablet at night. She applies a compounded cream which was prescribed by her pain doctor.
She visits a general practitioner as required for repeat prescriptions.
She visits a pain physician in Penrith every few months. At her last visit five months ago, he recommended that she engage in a pain management course.
A long time ago she tried Doxylamine to help with sleeping, but found she was very groggy the next day and she developed a severe headache. She has not taken any other specific sleep medications.
She uses the Headspace app on her phone, and she has done some online meditation courses.Current activities and restrictions
Ms Bucca lives with her ex-partner, Mark, in a house in Blaxland. She said he does most of the cooking and any of the heavy cleaning and vacuuming. She hangs the washing, but noted that there are steep stairs at the back of the house, so she has to be careful.
They have one bathroom. The bathroom has been modified to replace the bath with a shower. She cleans the sink and the toilet. Mark cleans out the shower.
He does the yard work and does a bit of weeding.
She does small amounts of shopping, but Mark does any heavy carrying, or she gets home delivery.
Ms Bucca drives an automatic car and she manages longer trips, such as driving to visit her mother in Port Macquarie, so long as she takes several breaks on the way.
For exercise she walks her pet Labrador around the block. She has attempted swimming , but this stopped due to COVID.Clinical Examination
Ms Bucca weighed 76 kg. She was 165.5 cm tall.
Blood pressure was 137/90. Pulse rate was 75, regular in time and amplitude.
On examination of the throat, Mallampati Grade was 2.
On examination of the chest, the chest was clear, there were no adventitious sounds.
Heart sounds were dual. There were no murmurs.
The Epworth Sleepiness Scale score was 14.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[14] and Insurance Australia Ltd v Marsh.[15]
[14] [2021] NSWCA 287 at [40], [41] and [45].
[15] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the examination report of Medical Assessor Gibson in its reasons and adds the following further reasons.
Ms Bucca provided a consistent history and was straightforward in her presentation. There were no inconsistencies in that she provided a satisfactory explanation of the prior sleep difficulties which had occurred in the context of workplace issues. The psychiatrist, Dr Oldtree Clark, had diagnosed that she suffered from Post Traumatic Stress Disorder caused by these issues in a medico-legal report dated 6 March 2015.[16]
[16] IB p 445.
The Panel was satisfied, based upon entries by the claimant’s treating general practitioners in the clinical records from Lower Mountains Family Practice[17] and Waterfront Medical Centre,[18] that this in fact had been a temporary condition, and therefore was not relevant to her current assessment. The Panel notes and accepts the statement by the claimant that:
“…The Insurer refers to events in 2015, some two years prior to my accident, when I was suffering bullying and harassment in the workplace which was actually in 2014, ie. three years prior to my accident. At this time I was referred to psychiatrist Dr Oldtree-Clark in relation to the bullying claim. This resolved long before my accident in 2017……the PTSD that Dr Oldtree-Clark stated I was suffering from due to bullying, as well as the insomnia and poor sleep, had completely resolved long before my accident”.[19]
[17] IB p 180.
[18] IB p 352.
[19] CB pp 28-29.
The Panel then considered the nature and aetiology of the current sleep disorder.
Respiratory and sleep specialist, Dr Freiberg, in his report dated 7 August 2020,[20] noted that “The pain is often worse at night and It wakes her from sleep.” and concludes “My assessment of the Claimant's condition is that she has chronic pain and from a Sleep Specialist's specific this is causing significant sleep fragmentation and there are widespread consequences of this on mental and physical wellbeing.” [21]
[20] CB p 129.
[21] CB p 130.
Respiratory and sleep physician, Dr Anup Desai, in his report dated 23 February 2021, concludes that:
“As a result of the accident, she experienced an injury to her left elbow and left foot and has ongoing chronic pain related to this. In the setting of her pain from the accident she developed acute insomnia, which has persisted, and she now has chronic insomnia. Due to her insomnia, she wakes up unrefreshed and described some daytime tiredness and sleepiness. She reports that it limits her function during the day, particularly with work related tasks. She may fall asleep involuntarily at times. Sleep studies have not identified any physical sleep fragmenting condition, such as obstructive sleep apnoea.”[22]
[22] CB p 179.
Medical Assessor Grainge commented in his certificate that “It is well recognised that physical injury can lead to sleep disorder especially in the circumstance where physical injury leads to inability to exercise and weight gain, leading to obstructive sleep apnoea.” He diagnosed that Ms Bucca suffered from “Sleep fragmentation leading to daytime hypersomnolence” and concluded that “This sleep fragmentation is not due to obstructive sleep apnoea but the frequent arousals result in a similar outcome, ie. that of daytime hypersomnolence.”[23]
[23] CB pp 4-5.
Medical Assessor Grainge bases his assessment on AMA 4 section 5.3. However, this section deals with a number of respiratory conditions including obstructive sleep apnoea, obesity hypoventilation syndrome, central sleep apnoea and other conditions (Table 10), none of which he has diagnosed, nor which have been established on history or clinical examination.
Ms Bucca stated at the time of the Panel’s re-examination that she experienced both difficulty initiating sleep and repeated waking due predominately to left foot pain and discomfort.
Medical Assessor Grainge, Dr Freiberg and Dr Desai also concluded that she suffers from chronic pain arising from physical injury, which disturbs her sleep.
The Panel is of the opinion that Ms Bucca suffers chronic pain as a consequence of her physical injuries, and in particular to her left foot. This pain keeps her awake and in the Panel’s experience, this is a common issue with patients suffering from all forms of chronic pain, the extent of which being dependant on the type and seriousness of the condition producing the pain.
Therefore, the sleep disorder is a consequence of pain, rather than a separate sleep condition or a respiratory condition or a neurological condition, none of which have been diagnosed, nor were they evident on clinical history or examination at the time of Panel’s re-examination, or in fact at the time she was examined by Medical Assessor Grainge.
Pain is addressed at Clause 1.38 of the Guidelines which states that:
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”
The Panel is of the opinion, that because the pain condition is not assessable separately from the physical conditions, the sleep dysfunction which arises from the pain is also not separately assessable for the purposes of whole person impairment.
Furthermore, the Guidelines provide no scope for assessment of sleep disorders outside of those arising from a neurological disorder.
The Guidelines at Clause 1.171 under the section “Specific interpretation of the AMA4 Guides - The central nervous system - cerebrum or forebrain” deals with the assessment of sleep and arousal disorders (and sleep disorders are not dealt with elsewhere in the Guidelines). This clause provides that these disorders are assessable using Table 6 (page 143, AMA 4) and that “The assessment is based on the clinical assessment normally done for clinically significant disorders of this type.” However, the disorders that are assessable under this section of the Guidelines are brain disorders, AMA 4, Table 6, being contained within section 4.1e under Episodic Neurological Disorders. The Panel found no objective evidence or any clinical material that would allow it to diagnose a brain disorder arising from the subject accident, and therefore there are no grounds upon which to assess Ms Bucca’s sleep disorder under this section of the Guidelines.
What is established is that Ms Bucca has chronic musculoskeletal pain. There is no evidence to suggest a separate respiratory or neurological diagnosis. Instead there is a pain condition arising from physical injury which leads to sleep disturbance. This is not an assessable impairment pursuant to the Guidelines.
CONCLUSION
For the reasons set out above, the Panel has determined that there is no assessable permanent impairment of the claimant as a result of the following injury caused by the accident:
(a) respiratory/sleep disorder.
The certificate of Medical Assessor Grainge dated 12 November 2021 is therefore revoked. A replacement certificate is attached at the commencement of these Reasons.
[TR1]Are these the same Guidelines cited in full and abbreviated in [6] above.
Note: AMA 4 has also been abbreviated in [6] above
[CT2]yes
[TR3]Emphasis in original / emphasis added? Must be noted...
[CT4]This is as quoted in the submissions
[TR5]Emphasis in original / emphasis added? Must be noted...
[CT6]Again this is as quoted (with italics ) in thje submissions
[TR7]Emphasis in original / emphasis added? Must be noted...
[CT8]Again as quoted in the submissions
[TR9]This should really be cited in full (in first instance) or explanation given
[CT10]Again as referred to in the submissions
[TR11]Check wording...
[CT12]amended
[TR13]Check wording...
[CT14]Amended
[TR15]Emphasis in original / emphasis added? Must be noted...
[CT16]Amended
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0