QBE Insurance (Australia) Limited v Choo
[2024] NSWPICMP 441
•4 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Choo [2024] NSWPICMP 441 |
| CLAIMANT: | Chung Xien Choo |
| INSURER: | QBE (Insurance) Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 4 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about permanent impairment; review under section 7.26; neck, lumbar spine, bilateral shoulders and right wrist referred to Medical Review Panel; Medical Assessment Certificate (MAC) assessed 11% permanent impairment; neck injury complaint before accident; insurer submits causation is relevant dispute; SIRA Motor Accident Guidelines, 10 November 2023 considered; Held – accident mechanism consistent with injuries claimed; no inconsistencies; cervical and lumbar spine condition resolved; permanent impairment assessed at 6%; less than 10%; MAC revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The motor accident caused injuries with total percentage permanent impairment of 6%. The total permanent impairment is not greater than 10%. 2. The Review Panel has assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Bodel’s assessment and certificate dated 31 May 2023 and issued on 12 January 2024. 3. Accordingly, the Review Panel revokes the earlier certificate and issue a new Permanent Impairment certificate. |
REASONS
BACKGROUND
This is a permanent impairment dispute under Motor Accident Injuries Act 2017 (MAI Act).
The claimant, Chung Xien Choo, was injured on 15 August 2018.
The claimant was riding a motorbike as an Uber eats driver, heading straight along a road, when a car pulled out from a parking spot on the left-hand side, impacting him on the left-hand side and throwing him onto the ground.
His claim form dated 24 August 2018 records that he had "neck and lumbar spine pain, abrasions to right shoulder and right knee pain and bilateral hand pain".
Certificates of Capacity indicated that he had no capacity for work for a brief period after the injury.
Certificates of Capacity indicated that he had no capacity for work for a brief period after the injury.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the MAI Act.
The claimant referred a permanent impairment dispute to the Personal Injury Commission (Commission)
The parties jointly instructed Dr Nel Wijetunga to examine the claimant to assess permanent impairment in the same body parts. This resulted in a report dated 28 May 2019. This confirms that the medical dispute referred for assessment under s 7.20 of the MAI Act had been expressed between the parties early in the claim.[1]
[1] Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 (4 April 2024) (Mandoukos).
Medical Assessor Bodel assessed the claimant and issued a certificate dated 31 May 2023, which determined the claimant had a whole person impairment (WPI) of 11%. The final version was issued on 12 January 2024.
The insurer submitted that the assessment was incorrect and applied for review on
31 August 2023 stating that the Medical Assessor failed to consider evidence lodged under two separate Applications to Admit Late Documents.Principal Member Harris considered the certificate incomplete, and on 6 October 2023 he referred it back to the Medical Assessor.
Medical Assessor Bodel updated the certificate, which the parties received on
12 January 2024. The Medical Assessor had the late documents before him, but the insurer submitted the assessment was still incorrect in a material respect when it applied for review of the certificate following s 7.26 (2) of the MAI Act.The President of the Commission delegate Catherine Freeman referred the medical assessment to a Review Panel (this Panel) on 7 February 2024.[2]
[2] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Assessor’s findings
These are set out in Appendix B
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 18 April 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided re-examining the claimant was required. Medical Assessor Moloney would examine Mr Choo, while Medical Assessors Stubbs would attend via Teams and write the report on behalf of the Panel.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Clinical examination
Mr Choo attended at the Commission’s medical suites on 8 May 2024. Mr Chen Cao CPN 7YK143 attended as interpreter. Mr Choo drove himself to the Commission from his home in Lidcombe.
Background
Mr Choo is 29 years old and presently lives in an apartment in Lidcombe with two flatmates. He came to Australia in 2016 on a student visa intending to study business administration. He was an elite level badminton player who had suffered a right ankle injury in childhood which fully recovered and had some soreness in his dominant right arm from playing badminton.
He supported himself as an Uber delivery driver to about 20 hours a week and played and coached badminton two to three days a week as well as studying. He regarded himself as fit and well at the time of the motor vehicle accident.
The accident occurred on 15 August 2018. He was travelling at modest speed on his motorcycle along the street when the driver of a car parked on the near side of the street pulled out in front of him. The motorcycle collided with the right front of the car throwing him forwards and to his right. Police and ambulance attended the accident. An ambulance took him to Concord Repatriation Hospital to assess his injuries. He did not think he was greatly injured but underwent an X-ray of his right wrist because of local symptoms. His motorcycle was written off.
His friends took him home to Parramatta after observation in the hospital. He attended his general practitioner Dr PK Chow the following day as he developed increasing pain and soreness across his neck, low back shoulders, both wrists, and right knee together with general bruising overnight.
He was sent initially for a CT scan of the right wrist which revealed a fracture of the pisiform bone on the outside of his right wrist. His general practitioner Dr PK Chow prescribed a commercially available splint which he picked up from a chemist. He later went on to have an MRI scan of the cervical spine. He was sent for some physical therapy. The wrist improved and he was able to discard the splint after about three months, by nine months the wrist was largely better.
In terms of his student visa, he had to resume his studies as early as possible, but he switched from business administration to hospitality. He is now in the final months of his hospitality studies with the International College near Wynyard train station. He has completed the cooking and service part of the diploma and is shortly to complete the administrative syllabus.
He now lives with flatmates in Lidcombe. He drives a Toyota Corolla for personal use and is working as a delivery driver for about 20 hours a week. He drives a van for this and drops off parcels in the region of 1 to 10 kg in weight to home and business addresses.
He resumed playing badminton about 12 months after the accident but is not playing at the same competitive level or so frequently. He still coaches regularly. He continues to have physiotherapy on a regular basis averaging once a fortnight. He does not use any regular analgesic medications but applies an over the counter purchased liniment/ointment to the backs of both shoulders.
His principal continuing symptoms are soreness in the back of the neck, spreading to the musculature between his shoulder blades on both sides, with low back stiffness. Symptoms tend to be worse with prolonged sitting, for instance driving can be troublesome at night. The symptoms are generally improved with heat, massage and stretching exercises.
His main residual disability since the motor vehicle accident has been soreness with overhead strokes when he plays badminton. There have been no further accident injuries except for a coincidental recurrence of his childhood right ankle injury. The ankle problem has settled.
Physical examination
Mr Choo presents well; he only occasionally requires assistance from the interpreter and was very consistent in his answers and clinical examination. He stands 170 cm tall and weighs a lean 64 kg. He moves around freely with a normal gait. He can tiptoe and heel toe walk, hop and squat without difficulty.
Lumbosacral spine
He has an excellent range of movement in the low back and can almost touch the floor when flexing. Side bending, rotation and extension are equally good. His posture is normal. There is no local pain or discomfort. The reflexes are brisk and symmetrical and girth of the thighs 39 cm and the calf 32 cm in both right and left legs. Tone, power, and sensation is normal and straight leg raising is to 80° mildly limited by tight hamstring muscles. His thoracic–lumbar spine has no abnormal findings.
Lower limbs hips, knees and ankles were noted to have 5/5 power in all motor groups, excellent stability, and a full range of movement. These are also normal findings.
Comment: Mr Choo reports he was sore in his right knee in the months following the accident. This is now fully resolved and the findings in the lower limbs are normal.
Cervical spine
There is a normal posture and some slightly left-sided pain to firm palpation in the lower cervical region spreading into the scapular musculature. This is mildly tender. Flexion and extension are normal. Rotation and side bending are three quarters normal range, right equals left, without any spasm or guarding and no asymmetry. Power in the upper limbs is 5/5, sensation is normal in all motor groups. The reflexes are brisk and symmetrical and there are no positive tension signs.
Mr Choo is very right hand dominant, and he shows an unusually large difference between the sides. The right arm is 26 cm in circumference, the left 23 cm. His right forearm is 24 cm and the left 21 ½ cm. This difference is commonly reported in elite level athletes who use “one arm” such as shot putters, javelin throwers and tennis players. Medical Assessor Bodel also noted this discrepancy.
Comment: the cervical spine shows some residual tenderness and mild symmetrical restriction of movement. However, Mr Choo does not show asymmetry or dysmetria and no evidence of any radiculopathy. Mr Choo’s cervical spine is DRE grade 1. The accident caused residual soft tissue injury to the cervical spine.
Upper limbs
The shoulders and wrists’ range of motion are set out in the table below together with
Mr Choo’s upper extremity impairments. The other joints are entirely normal. Motor and sensory function is normal and as noted above there is no evidence of peripheral nerve entrapment or any instability in any of the examiner joints. Both shoulders seems slightly stiff in this 30-year-old male.The right wrist has point tenderness over the pisiform bone and some skin thickening or hardening. Specific provocation tests for instability are negative and there is no crepitus or tenderness apart from the right pisiform.
| Active range of motion over three measurements right UEI % | Active range of motion over three measurements left UEI % | |
| Flexion | 160°-170° 1% | 150°-160° 2% |
| Extension | 40 to 50° 0% | 60° 0% |
| Adduction | 60° 0% | 50° 0% |
| Abduction | 150-160° 1% | 160° 0% |
| External rotation | 80° 0% | 90° 0% |
| Internal rotation | 80° 0% | 90° 0% |
| 2% | 2% |
| Active ROM right UEI% | Active ROM left UEI% | |
| Flexion | 50° 2% | 60° 0% |
| Extension | 50° 2% | 60° 0% |
| Ulnar deviation | 20° 2% | 30° 0% |
| Radial deviation | 25° 0% | 25° 0% |
| Pronation | 80° 0% | 80° 0% |
| Supination | 80° 0% | 80° 0% |
| 6% |
The measured range of movement are very close to those Medical Assessor Bodel recorded 12 months ago. He is at the point of maximum medical improvement.
The fractured pisiform is well documented in the available investigations. Grip strength is excellent with wrist in the power grip position. There is slight residual stiffness at extremes of movement. The upper extremity impairment of the right wrist is 6% UEI which table 3 translates to a 4% WPI. The fracture pisiform has healed probably with some thickening of the bone as evidenced by the overlying callosities. It is due to the motor vehicle accident. It requires no further treatment.
The left shoulder had an ultrasound examination performed on 4 September 2014 showing some mild supraspinatus tendinosis and subacromial bursitis. These findings are very common in asymptomatic subjects. Both shoulders show a slightly poorer range of motion than Dr Wijetunga IME reported in March 2022 but noticeably better than Dr Dias reported in 2021. Symptomatically the right shoulder stiffness interferes with Mr Choo’s overhead movements playing badminton. The left shoulder causes him little trouble. Both shoulders might see improved flexibility with a self-directed rehabilitation program from an exercise physiologist. The present upper extremity impairment is 2% in each shoulder. Table 3 translates this to 1% WPI. Both shoulders were plausibly injured in a motor vehicle accident, and the fracture in his pisiform bone of the right wrist confirms a fall on the outstretched arms, as he described happening in the accident.
The Panel did not find clinical criteria necessary to assess Mr Choo’s cervical spine as anything other than DRE category 1 for a 0% WPI. This differs from Medical Assessor Bodel, but it reasonably reflects the natural resolution of a minor soft tissue injury.
The accident caused a combined WPI – 6% WPI.
The permanent impairment table is set out at Appendix E.
Panel deliberations
The Panel met again on 22 May 2024. Medical Assessor Stubbs was not present.
The balance of the Panel decided to adopt the Medical Assessors’ examination report written by Medical Assessor Stubbs with its conclusions and impairment assessment as evidence.
The Panel noted the insurer’s submission that there should have been enough information in the claimant’s treating doctors clinical notes before the accident to assess permanent impairment that could have been deducted from the current level of impairment.
The Panel disagreed with that proposition because it did not find the notes contained sufficient information that could have been used to formulate pre-accident permanent impairment.
Further, the Medical Assessors’ examination and testing yielded different outcomes to the earlier assessments. The claimant’s credit was not a relevant factor in this Panel’s findings.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
· cervical spine soft tissues injury;
· lumbar spine soft tissue injury;
· right shoulder soft tissue injury;
· left shoulder soft tissue injury, and
· right wrist fracture.
The Review Panel found that the lumbar spine condition had resolved.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· right shoulder;
· right wrist, and
· left shoulder.
Permanent impairment
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. The 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The motor accident caused injuries with total percentage permanent impairment of 6%. The total permanent impairment is not greater than 10%.
The Review Panel has assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Bodel’s assessment and certificate dated 31 May 2023 and issued on 12 January 2024.
Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 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.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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.”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Assessor’s findings
The Commission referred the permanent impairment dispute to Medical Assessor Bodel for assessment.
The Commission issued Medical Assessor Bodel’s certificate dated 31 May 2023 on 12 January 2024. He assessed the accident caused an injury the cervical spine and clinically, he suspected an internal disruption damage to the annulus fibrosis (and annular tear) and possible damage to the cartilaginous endplate at the C5/6 disc.
Clinically, he suspected bursitis and tendonitis in both shoulders, although not rotator cuff tears. He was satisfied there was localised pathology in the shoulder joints and no(t) just referred pathology from the cervical spine (Nguyen principle) in this circumstance.
He had not seen any investigations to confirm that.
He certified that the subject accident caused injuries with a permanent impairment of 11%:
Permanent Impairment Table
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervicothoracic spine | DRE Cervicothoracic Category II Table 73 on page 3/110 of AMA4 | Yes | 5% | 0% | 5% |
| 2 | Lumbar Spine | DRE Lumbar Category I Table 72, Page 110 | Yes | 0% | 0% | 0% |
| 4 | Left Upper Extremity (left shoulder) | Figure 38 on page 43 Figure 41 on page 44 Figure 44 on page 45 AMA4 | Yes | 2% | 0% | 2% |
| 5 | Right Upper Extremity (right shoulder & right wrist) | Figure 38, Page 43 Figure 41, Page 44 Figure 44, Page 45 AMA4 Figure 26 on page 36 Figure 29, page 38 | Yes | 1% | 0% | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
* %WPI = percentage whole person impairment
APPENDIX C
Parties’ disputes and issues
The parties did not provide submissions with the application to Medical Assessor Bodel.
Insurer’s submissions
The insurer’s submissions dated 9 February 2024 with the application to review the earlier certificate state the assessor should have calculated the impairment before the accident, referring to claimant’s treating GP’s notes about treating neck and shoulder problems.
The notes referred to radiculopathy and bilateral shoulder pain six days before the accident. The claimant is an elite badminton player, and the accident is said to have caused the same symptoms he complained of after the accident.
Claimant’s submissions
The claimant’s submissions disputed the insurer’s view that Medical Assessor Bodel did not consider the clinical notes submitted as a late document. The submissions also referred to there being insufficient evidence–following the Guidelines–to calculate and deduct impairment before the accident from the result after the accident.
APPENDIX D
Documentation
The Review Panel considered the following documentation as well as Medical Assessor Bodel’s certificate:
· Dr Wijetunga's jointly instructed reports dated 28 May 2019 and her supplementary report dated 13 June 2019, 12 August 2019 and as the insurer's IME dated 9 March 2022;
· Dr Abdallah’s report dated 6 December 2019;
· Benchmark rehabilitation closure report dated 8 April 2019;
· Dr Uthum Dias report dated 2 December 2021 page 53 claimant’s bundle;
· insurer’s reply submissions (WPI) 14 February 2022, and
· insurer’s reply submissions (Application for Review) 9 February 2024.
APPENDIX E
Permanent Impairment Table
Combined whole person impairment – 6% WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right wrist | Figure 26 on page 36 Figure 29, page 38 AMA 4 | Yes | 4% | 0% | 4% |
| 2 | Right Shoulder | Chapter 3, Page 41 Section 3.1j Figure 38, Page 43 AMA 4 Figure 41, Page 44 Figure 44, Page 45 | Yes | 1% | 0% | 1% |
| 3 | Left Shoulder | Chapter 3, Page 41, Section 3.1j, Figure 38, Page 43 Figure 41, Page 44 Figure 44, Page 45 | Yes | 1% | 0% | 1% |
| 4 | Cervicothoracic spine | DRE Cervicothoracic Category I Table 73 on page 3/110 of AMA4 | Yes | 0% | 0% | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
* %WPI = percentage whole person impairment
0
1
0