QBE Insurance (Australia) Limited v Fatchurrochim

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Fatchurrochim [2023] NSWPICMP 556
CLAIMANT:	Fatchurrochim Fatchurrochim
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	3 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and treatment assessment review under section 63; original Medical Assessor (MA) Bodel; issue of causation of injuries involved; pre-existing cervical impairment and resolved left shoulder condition; work and motor accidents before subject accident; re-examined; Held – claimant sustained soft tissue injuries to right shoulder, lumbar spine, cervical spine aggravating degenerative disc disease; WPI less than 11%; previous impairment certificate revoked and replaced; Panel found treatment arose from subject accident and was reasonable and necessary, but found that less treatment was required than MA Bodel; treatment certificate revoked and replaced.
DETERMINATIONS MADE:	CERTIFICATE Medical Assessment – Permanent impairment Review Panel Certificate Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 after a review under s 63 as to WHETHER THE INJURED PERSON’S DEGREE OF PERMANENT IMPAIRMENT FROM AN INJURY WHICH THE MOTOR ACCIDENT CAUSED IS[A1] GREATER THAN 10% THE REVIEW PANEL ASSESSMENT UNDER SECTION 63(4) IS AS FOLLOWS: The Panel revokes the certificate dated 20 January 2022 and issues a new certificate The motor accident caused the following injuries which give rise to a permanent impairment of 10%’ which IS NOT GREATER THAN 10%: · Cervical spine – musculoligamentous strain; · Right shoulder – soft tissue injury, and · Lumbar spine – musculoligamentous strain Assessment of Treatment – Causation The Panel revokes the certificate dated 20 January 2022 and issues a new certificate The following treatment: · a need for domestic assistance from the date of the accident to the date of the assessment; · a need for future domestic assistance from the date of the assessment; · the proposed future monthly, bi-monthly, quarterly, six-monthly or annual GP Consultations in relation to physical injuries for the next 5 years; · the proposed future monthly, bi-monthly, quarterly, six-monthly or annual neurological reviews for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy; · future referrals to an orthopaedic surgeon for treatment for the next 5 years; · future referrals to neurological review for treatment for the next 5 years, and · the ongoing use of future analgesic medications on a regular basis for the next 5 years RELATES TO THE INJURY caused by the motor accident Further Assessment of Treatment– Reasonable and Necessary The Panel revokes the certificate dated 20 January 2022 and issues a new certificate The following treatment: · 0-12 hours per week of past domestic assistance arising from physical injuries caused by the accident from the date of the accident to the date of the assessment and continuing for the rest of the claimant’s life; · annual general practitioner consultations in relation to physical injuries for the next 10 years; · a referral to an orthopaedic surgeon by the claimant’s general practitioner during the next five years to assess the claimant’s right shoulder, and · the ongoing use of future analgesic medications on a regular basis for the remainder of the claimant’s life expectancy IS REASONABLE AND NECESSARY in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

History of the motor accident

The claimant is a 72-year-old married male, who alleges that at approximately 9.00 am on 1 February 2017, he was the driver of a vehicle travelling along O’Riordan Street, in Alexandria. It is alleged that the insured vehicle collided with the rear of the claimant’s vehicle while it was stationary and waiting to turn left.[1]
[1] AD7 agreed facts.
The owner and driver of the motor vehicle was insured for liability to pay to the claimant any damages under Motor Accidents Compensation Act 1999 (the MAC Act).
The insurer agreed to accept liability for the accident and the claimant’s injury.

History of symptoms and treatment following the motor accident

This gentleman developed a gradual onset of neck and bilateral shoulder girdle pain, as well as the lower back pain, within the first few days after the accident. He consulted Dr Eric Lim, a general practitioner (GP) at Workers Doctors in Parramatta, and was treated conservatively with rest, analgesic medication and physiotherapy.
He saw Dr Brian Hsu, an Orthopaedic Spinal Surgeon. Dr Hsu did various scans and injections to the neck and back. The injections were a temporary help.
Dr Hsu offered him neck surgery, but Mr Fatchurrochim is reluctant to consider that option. Dr Hsu did not offer him surgery for the lower part of the back.
Mr Fatchurrochim took about six weeks off work with the taxi driving and then returned to work, continuing to take Panadol Osteo and occasional Valium. The medication causes gastric upset.
He says he found the physiotherapy of no lasting benefit after a period of about two weeks and has not returned to that, but he finds acupuncture helpful.
He says he is now working eight hours a day, three days a week, when he used to work 12 hours a day, five days a week.

Nature of the dispute

This Panel is dealing with two medical disputes.
The initial dispute between the parties is whether this motor accident caused injuries with a degree of permanent impairment greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] Sections 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act states the State Insurance Regulatory Authority may issue guidelines to assess an injured person’s permanent impairment, known as the Motor Accident Permanent Impairment Guidelines (the Guidelines).
The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). The Guidelines prevail if AMA 4 and the Guidelines differ.[3]
[3] Clause 1.2 of the Guidelines.
There is also a dispute about whether the accident has caused conditions requiring treatment and domestic assistance.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. At first instance a Medical Assessor determines the issue[4] and a review panel can review the decision under s 63 of the MAC Act.

The parties agree on the following points.

[4] Section 60 of the MAC Act.

The claimant’s physical injuries were originally referred to the Medical Assessment Service (MAS), which pre–dated the Personal Injury Commission (Commission).
Medical Assessor Nigel Marsh assessed the claimant and issued a Certificate (WPI – Physical) dated 29 January 2019. The Medical Assessor diagnosed injury to the cervical spine, lumbar spine and both shoulders. WPI was assessed at 7%, comprised of 5% for the cervical spine and 2% for the right shoulder.
The claimant lodged a further assessment application (WPI) on 28 August 2020, which was accepted.
The insurer lodged a treatment assessment application (treatment and care) on
17 March 2021.
The further permanent impairment and treatment applications travelled together.
Medical Assessor James Bodel issued a Further Certificate (WPI and Treatment – Physical) dated 20 January 2022.
Medical Assessor Bodel assessed 14% WPI related to the subject accident and determined that all of the treatments the claimant requested were related, reasonable and necessary with respect to the subject accident. Medical Assessor Bodel’s permanent impairment table is set out below.

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	Cervical spine	AMA4, Chapter 3 Table 73, Page 3/110 DRE Cervical Category II	Yes	5%	One-half	3% WPI (rounded from 2.5%)
2	Right Upper Extremity (right shoulder)	AMA4, Chapter 3 Figure 38 on page 43 Figure 41 on page 44 Figure 44 on page 45	Yes	10%	One-half	5%
3	Left Upper Extremity (left shoulder)	AMA4, Chapter 3 Figure 38 on page 43 Figure 41 on page 44 Figure 44 on page 45	Yes	6%	One-half	3%
4	Lumbar spine	AMA4, Chapter 3 Table 72, Page 3/110 DRE Lumbar Category II	Yes	5%	One-half	3% (rounded from 2.5%)

In each of the areas assessed in the table above, the assessor allowed that half of the permanent impairment was due to pre-existing pathology and the remaining half was due to the motor vehicle accident under review.
The insurer lodged a review application for Medical Assessor Bodel’s further certificate (WPI and Treatment – Physical) on 2 March 2022.
On 19 April 2022 the Presidential Delegate referred that assessment for review on the basis there was reasonable cause to suspect that Medical Assessor Bodel’s medical assessment was incorrect in a material respect.
The Review Panel (the Panel) must utilise the Motor Accident Permanent Impairment Guidelines and the AMA 4th Edition as guidelines for assessment of permanent impairment in this matter. The Guidelines prevail if the Guidelines would provide a different result to the AMA 4.
Section 63(3A) of the Motor Accidents Compensation Act 1999 (the MAC Act) mandates that ‘the review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned’.
In this respect, the parties agree that the following body parts and treatments referred to Medical Assessor Bodel remain in dispute and are to be considered afresh by the Review Panel via re-examination, namely:
(a)    Cervical Spine.
(b)    Left Shoulder.
(c)    Right Shoulder.
(d)    Lumbar Spine.
The parties agree that the treatments and disputes listed by the review panel from pages 2 to 4 of the Review Panel Directions dated 22 June 2022, paragraphs (a) to (r) correctly constitute the treatments that are the subject of this dispute and will require re-examination and re-determination by the Review Panel.

Permanent Impairment disputes for review

The Commission referred the following injuries for review:
·Cervical spine – musculoligamentous strain
·Left shoulder – soft tissue injury
·Right shoulder – soft tissue injury
·Lumbar spine – musculoligamentous strain

Treatment Disputes to be assessed

The Commission referred the following treatment disputes for review:
·        Whether the physical injuries give rise to a need for domestic assistance from the date of the accident to the date of the assessment and whether this assistance is causally related to the injury sustained in the subject accident;
·        Whether 0-12 hours per week of past domestic assistance arising from physical injuries caused by the accident from the date of the accident to the date of the assessment is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the physical injuries give rise to a need for domestic assistance from the date of the assessment and whether this assistance is causally related to the injuries sustained in the subject accident;
·        Whether 0-12 hours per week of future domestic assistance arising from physical injuries caused by the accident from the date of the assessment is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future potential fusion and decompression of the cervical spine and lumbar spine is causally related to the injury sustained in the subject accident;
·        Whether the proposed future potential fusion and decompression of the cervical spine and lumbar spine is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual physiotherapy sessions for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual physiotherapy sessions for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual acupuncture therapy for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual acupuncture therapy for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual GP Consultations in relation to physical injuries for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual GP Consultations in relation to physical injuries for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual neurological reviews for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual neurological reviews for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual orthopaedic surgeon reviews for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident;
·        Whether the proposed future monthly, bi-monthly, quarterly, six-monthly or annual orthopaedic surgeon reviews for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident;
·        Whether the ongoing use of future analgesic medications on a regular basis for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident, and
·        Whether the ongoing use of future analgesic medications on a regular basis for the next one year, 5 years, 10 years and/or for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident.

Issues in Dispute

·Whether the subject accident was of sufficient severity to have caused the claimed injuries;
·The diagnoses and causation with respect to the claimant’s pre-accident medical history and conditions, if any;
·The degree of permanent impairment attributable to the claimant’s pre-accident medical conditions, if any;
·The diagnoses and causation of the injuries allegedly sustained in the subject accident, if any;
·The degree of permanent impairment attributable to any injuries sustained in the subject accident, if any;
·The reliability and consistency of the claimant’s self-reporting, and
·Whether the requested treatments referred to the Review Panel are related, reasonable and necessary with respect to the subject accident.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Under section 58 of the MAC Act a claimant and an insurer may disagree on three distinct matters, which are “medical assessment matters”. This 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 biological 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. In Raina v CIC Allianz Insurance Ltd 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.”

The correct method for deducting pre-existing or subsequent permanent impairment is set out at in Motor Accident Permanent Impairment Guidelines version 1, paragraph 1.31 to 1.33 (It is similarly stated in all previous versions):
“Pre-existing impairment
1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
1.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 1.218 for the approach to a pre-existing psychiatric impairment.
1.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
These observations were made regarding a review panel of three medical experts before the MAC Act was amended, as opposed to the present panel composition of two medical experts and a legal Commission Member.

The review

On 22 June 2022 the Panel sent directions to the parties to provide a joint signed statement setting out the facts and disputes. These directions were complied with.
The Panel met on 20 July 2022.
The Review Panel considered afresh all aspects of the assessment under review.
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules with respect to the practice and procedure before the Commission. This includes panel proceedings reviewing Merit Reviewers or Medical Assessors’ decisions.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The Panel initially determined re-examination of the claimant was not necessary in order to reach a decision, noting what the Court of Appeal said in Sydney Trains v Batshon[7]:
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[7] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Batshon’s case concerned a workers compensation medical assessment matter dealing with whole person impairment. Paragraph 41 is an observation of what happens in motor accidents matters where a practice note from 2005 is referenced. The case does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies and would apply if a party objected to an assessment on the papers. The judge’s observations also suggests the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.
In this assessment the Panel considered there was no ambiguity about the claimant’s medical condition before and after the subject accident, as Medical Assessor Bodel had correctly summarised the history. The error in the permanent impairment assessment was in the method the assessor used to deduct the pre-existing permanent impairment to formulate the accident-related permanent impairment.
Although the Panel met on 20 July 2022 the subsequent directions were not sent as they were overlooked when technical issues delayed issuing the directions contemporaneously with the Teams conference. The legal Member was responsible for drawing those directions, which were originally drawn on 10 August 2022. There were further delays due to disagreement among the medical members, which the legal Member could not resolve.
The Panel met again 15 May 2023 to discuss how this matter could be progressed.[TO2]
The Panel noted the unsigned statement of agreed and disputed facts and issues the parties provided in accordance with the directions made on 22 June 2022.[8]
[8] AD7.
Although the Panel still held the opinion that re-examination was unnecessary, it sought the parties further submissions regarding completing the decision on the papers.
Those further submissions were unanimous that the Panel must re-examine the claimant.
Medical Assessor Dixon undertook to re-examine the claimant on 4 August 2023 at the Commission’s medical suites.
However, the claimant did not attend that appointment, so a further appointment was made for 3 October 2023. The claimant attended.

DOCUMENTATION

The Review Panel considered the following documentation:
·        Medical Assessor Bodel’s further medical certificate dated 7 July 2021;
·        Medical Assessor Nigel Marsh certificate (WPI – Physical) dated 29 January 2019;
·        insurer's review application with claimant and insurer's consolidated medical reports, witness statements, clinical notes and surveillance marked AD1;
·        claimant's response marked AD24;
·        The Presidential delegates reasons issued dated 28 October 2021 referring this matter to a Review Panel, and
·        All the documents which were provided to Medical Assessor Bodel before the assessment under review.

SUBMISSIONS

Insurer’s submissions

The insurer’s lawyers detailed the background to Mr Fatchurrochim’s head and neck, lower back and both shoulder injuries with numbness and tingling in the right arm following the 2017 accident.
Mr Fatchurrochim has an extensive medical history before the 2017 accident. The insurer also alleges credibility issues.
For example:
·        left knee injury requiring open surgical repair 25 years before this 2017 injury;
·        numbness extending into the right arm dating back to October 2006;
·        long term neck pain and left arm pain;
·        left shoulder x-rays dated 1 August 2011;
·        November 2011, neck nerve root involvement running into the arms; associated degenerative change in the cervical spine;
·        2014 motor vehicle accident on 24 February 2014, where he injured the neck and had stiffness in both shoulders;
·        2014 investigations showed significant degenerative change before 2017, and
·        MRI scans from March 2016 show congenital narrowing of the cervical canal with central stenosis and multi-level severe foraminal stenosis.
He has in the past been under the care of Dr David Sharp, Dr Daniel Wardman, and Professor Steven Reddel, who saw him in February 2016, which was a year before the 2017 accident.
MAS Assessor Nigel Marsh’s report dated 29 January 2019 notes that the claimant “denied suffering from any pre-existing symptoms in his neck or upper limbs”.
Mr Michael Griffiths biomechanical report concludes that the force involved in the impact of this accident is insufficient to cause structural damage.
The claimant’s car was stationary when hit with force in the rear. However, the Panel must decide if the force was sufficient to cause additional structural damage in the claimant’s degenerated spinal areas and possible bilateral rotator cuff pathology.
The Panel should note the insurer’s submissions regarding applying cl 1.31 of the Guidelines correctly and calculating the pre-existing permanent impairment and deducting that from the calculated total impairment.[9]
[9] A1.
The insurer submits that Medical Assessor Bodel failed to apply the inconsistency test throughout the course of his assessment as required under cl 1.41 of the Guidelines. The insurer provided several examples of failures to test the inconsistencies between what was seen in clinical notes and the impairment the claimant displayed during examination.
Inconsistencies were found in how Mr Fatchurrochim alleged to work long hours before the accident as a taxi driver while still receiving an aged pension. He also alleged he had no symptoms before the accident, which is inconsistent with clinical notes.
It is not open to Medical Assessors to conclude that a claimant’s current pathology and self-reporting was consistent with an accident in circumstances where a Medical Assessor had not sought to reconcile his opinion with the observed inconsistencies and the inaccuracies in a claimant’s provided history.
The insurer pressed failing to raise inconsistencies with the claimant and record his response/explain how those inconsistencies impacted on his determination as one of the grounds for re-examining. The insurer says it has put the claimant’s credibility at stake.
Medical Assessor Bodel failed to provide adequate reasons with respect to his permanent impairment assessments. The insurer submits that there was no sufficient commentary under the heading “Permanency of Impairment”
The insurer relied on the NSW Supreme Court decision of AAI Limited v Fitzpatrick [2015] NSWSC 1108, where it was held that where there is controversy over a particular issue, a more expansive explanation needs to be given and express consideration revealing what use a Medical Assessor has made of the provided information.
A Medical Assessor must properly engage with the parties’ substantive arguments.
In this case the Medical Assessor failed to engage with the insurer’s further submissions dated 12 August 2021, which were prepared in response to the claimant’s service of the report of Dr Darwish, neurosurgeon, dated 7 July 2021.
The insurer’s submissions raised a number of issues with Dr Darwish’s medical assessment, including not providing pre-accident records and that he took an unchallenged (and inaccurate) history from the claimant that there was no pre-accident history of relevance.
The insurer also highlighted inconsistencies between Dr Darwish’s diagnoses and domestic assistance recommendations when compared with the claimant’s allegations.
Dr Darwish’s assessed whole person impairment, using the same method as Medical Assessor Bodel (i.e. the application of a blanket percentage deduction for pre-existing impairment), as discussed above.
Medical Assessor Bodel also failed to properly consider and engage with the insurer’s qualified medico-legal experts.
In respect of treatment and domestic assistance the insurer submits
(a)    With respect to physiotherapy treatment, such treatment could not be found to be reasonable or necessary given the claimant reporting he obtained no effective benefit from same. Critically, the claimant told Medical Assessor Bodel on page 10 of his Certificate that ‘he found physiotherapy of no lasting benefit after a period of about 2 weeks and has not returned to that …’ (A2).
(b)    With respect to specialists’ review, the claimant had declined to pursue the recommendations of his treating specialists after the accident. Medical Assessor Bodel noted on the basis of the claimant’s self-reporting that the claimant is ‘reluctant to consider any of [those treatments]’ (page 18).
(c)    With respect to domestic assistance, note the claimant’s wife’s statement, including her assertions that the claimant was engaging in housecleaning every day and her denial that the claimant suffered from symptoms before the accident. The insurer submits this Panel ought to exercise care before accepting her statement.
(d)    With respect to the proposed cervical surgery, there is no clinical evidence to justify such a procedure.
(e)    The claimant’s need for quarterly review with his GP for the remainder of his life expectancy, overlaps with the claimant’s need to attend upon his GP for his pre-existing health issues.
(f)    Further specialist review would not be reasonable and necessary in circumstances where the claimant declined to proceed with the specialists’ treatment recommendations.
(g)    The proposed domestic assistance is not related, reasonable and necessary because of the complex overlapping with the claimant’s nearly identical pre-accident restrictions.
Medical Assessor Bodel conducted a clinical assessment of the claimant’s cervical spine and lumbar spine. He assessed DRE category II with respect to both the cervical spine and lumbar spine, giving rise to 5% to current WPI. The insurer says that
Medical Assessor Bodel’s clinical assessment of the cervical spine and lumbar spine failed to comply with the requirements of the Permanent Impairment Guidelines at Table 8, page 29. It notes in particular “The Assessor did not record the range of spinal motion as a fraction or percentage of normal range, and he made reference to body landmarks during his assessment.”
The Review Panel should consider cl 1.51 of the Guidelines in relation to the claimant’s bilateral shoulder range of motion.

Claimant’s submissions

The claimant refers to this Review Panel’s view that Medical Assessor Bodel incorrectly assessed the permanent impairment and deducted half of the assessed figures as pre-existing impairments and did not estimate an impairment rating.
In that regard, the claimant refers the Review Panel to the Permanent Impairment Table in Medical Assessor Bodel’s report at page 21. The right-hand column which has determined the percentage of whole person impairment due to the motor accident. The Review Panel table should consider this table in its deliberations.
This is consistent with the Motor Accident Guidelines (“MAG”) version 8.2, paragraphs 6.31 to 6.33. It is noted in those paragraphs that “the estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former.” If a calculation is to be conducted in that way so that each of the cervical spine and lumbar spine are not rounded from 2.5%, then the whole person impairment calculation would be 13% in total.
Secondly the Review Panel has commented in earlier directions that
Medical Assessor Marsh certified the left shoulder soft tissue injury has resolved and there was no assessable impairment. The Panel has formed the view that it agrees with that assessment and would not reassess the left shoulder.
However, as the matter was referred to Medical Assessor Bodel after
Medical Assessor Walsh’s certificate because the claimant demonstrated his condition had deteriorated, it is not appropriate to rely on Medical Assessor Marsh’s assessment.
Since that earlier report, the claimant had a deterioration which had a material effect on the outcome, and there was also further additional material made available to the Commission, which was not available to Medical Assessor Marsh, being the following:
(a)    The claimant’s statement dated 27 August 2020;
(b)    Dr Michael Fearnside’s report dated 24 March 2020, and
(c)    Dr Giblin’s report dated 7 April 2020.
The claimant submits that the appropriate assessment of the left shoulder is the 6% whole person impairment assessment of Medical Assessor Bodel, or as otherwise determined by the Review Panel after re-examination.
In relation to the claimant’s spinal condition, he submits that re-examining would allow the Review Panel to provide further commentary in relation to the assessment of the cervical spine and the lumbar spine, if necessary.
The claimant submits that re-examining allows the Review Panel to consider whether or not it is necessary to provide further commentary and reasons.
In relation to the insurer’s allegations of inconsistencies and the claimant’s credibility have not been “put in issue by the parties’ submissions” but have only been put in issue by the insurer. The previous Medical Assessors have not found inconsistencies or credibility problems after taking the claimant detailed history and reviewing all previous medical evidence. Medical Assessor Bodel noted that the claimant has definite pathology, which is consistent with the injury that he describes.
The claimant submits that the insurer has misinterpreted cl 1.1 of the Guidelines. Upon re-examination the Review Panel will more likely than not find that
Medical Assessor Bodel’s assessment of the left upper extremity at 6% WPI is correct.
However, if it were to be found that the left shoulder – soft tissue injury has resolved and there is no assessable impairment, it would be incorrect to apply cl 1.51 of the Guidelines because that clause refers to “the uninjured joint.”
In this case, the left shoulder is not an uninjured joint, but it was injured in the subject accident and has not resolved. The medical reports have described bilateral shoulder girdle pain from the subject accident, significant restriction of shoulder movement, widespread pathology in both shoulders and bilateral shoulder injury. That joint cannot serve as a baseline and be subtracted from the calculated impairment for the right shoulder injury.
Re-examination allows for a new assessment of all the matters with which the previous assessment was concerned in accordance with s 63(3A) of the MAC Act. Re-examining allows for the Panel to deal with the insurer’s alleged ambiguities and conduct a physical assessment in light of Medical Assessor Bodel’s findings.

REVIEW PANEL FINDINGS

Clinical Examination

Mr Fatchurrochim attended the medical examination on 3 October 2023 at Medical Assessor Dixon’s rooms.
This 70-year-old claimant was involved in a motor accident on 1 February 2017. The claimant reports that he has ongoing pain and stiffness in his neck, right shoulder and lower back but it would appear the left shoulder has settled. He was assisted in the consultation by both the Indonesian Interpreter on loudspeaker phone and his wife, Indah, helped to remove his clothing.
The claimant reported ongoing pain and stiffness in his neck with right shoulder brachialgia with trapezial muscle pain and reported radicular complaint with some pain radiating down his right arm and right sided occipital headaches.
He reported pain and stiffness in his right shoulder with pain in the deltoid muscle down as far as the deltoid insertion, which makes it difficult to elevate the right arm to do overhead work at home and to reach objects on high shelves. He has difficulty with heavy lifting and carrying due to right shoulder and low back pain and had difficulty with prolonged driving due to shoulder brachialgia and neck pain and stiffness which impacts on his ability to reverse park, change lanes and check the blind spots. He reported that this pain made it difficult to sleep on his right shoulder.
He reports he has pain in his lower back with lumbar stiffness with radiation at times into the right buttock and thigh and reported difficulty with prolonged sitting and standing due to back pain. He had a sitting and driving tolerance of 30 minutes and a standing and walking tolerance of 20 minutes. His back pain also disturbs his sleep. Repetitive bending and stooping aggravates his back pain so he avoids heavy lifting and carrying.

On examination Medical Assessor Dixon noted Mr Fatchurrochim was 163cm tall and weighed 70kg. There was stiffness of his cervical spine with flexion decreased by one quarter, extension by one third and lateral rotation to the right decreased by one half and that to the left by one third and lateral flexion was decreased by one third bilaterally. He had tenderness of the mid and upper cervical facet joints more marked on the right and tenderness of the vertebra prominens spinous process. His cervical foraminal compression test was negative as was his brachial plexus stretch test. There was no tenderness of the supraclavicular brachial plexus. There was no neurological deficit of either upper limb and his reflexes were symmetrical and thenar power and intrinsic power of both hands was grade 5 out of 5 and grip strength was grade 4 plus out of 5 in both hands. There was 1cm of wasting of his left arm, 10cm above the elbow, at 28cm compared with 30cm on the right and there was 1cm of wasting of his left forearm, 20cm below the elbow crease on the left compared with 21cm on the right. He is right-handed.
There were no objective sensory changes in that upper limb and apart from reduction in the power of his right shoulder girdle, power was satisfactory.
On examination of the right shoulder active abduction was 130 degrees, forward flexion 150 degrees, extension 40 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 50 degrees. Shoulder girdle power was grade 4 out of 5. There was tenderness of the deltoid muscle as far as the deltoid insertion and tenderness of the trapezius muscle. His shoulder girdle power on the right was grade 4 out of 5.
He had a full range of motion of his left shoulder where his power was grade 5 out of 5.
There was stiffness of his lumbar segment with flexion decreased by one third with pain on back extension which was decreased by one half. There was no muscle spasm, and his straight leg raise was 60 degrees bilaterally and there was no neurological deficit in either lower limb with symmetrical reflexes or wasting. His Babinski responses were negative.
He stood with pes plano valgus and hallux valgus[10] of his great toes. He made a modest arch on toe standing. He was unsteady on toe and heel walking and his squat test was associated with low back pain.
[10] Flat feet and bunions.
His relevant investigations include an ultrasound of the right shoulder on
10 October 2014, that is before the subject accident, which showed a supraspinatus tear.
The MRI of the cervical spine on 22 May 2017 showed moderately severe facet arthropathy at C2, C3, C4 and C5 and severe bilateral uncovertebral arthropathy at C6/7 with a large posterior disc osteophyte complex resulting in severe bilateral foraminal stenosis with central canal narrowing. At C7/T1 there was bilateral facet and uncovertebral arthropathy with prominent posterior disc osteophyte complex with bilateral severe foraminal narrowing.
Nerve conduction study on 11 August 2017 refers to radiculopathy on the right side at C7 and C8 with left forearm posterior interosseous nerve palsy and some chronic C8 radiculopathy. This was not evident on examination today.
The MRI of the right shoulder on 1 May 2018 showed a full thickness tear of the supraspinatus and moderate rotator cuff tendinopathy and subacromial bursitis.
The MRI of the lumbar spine on 1 May 2018 showed reduced lordosis and grade 1 L4/5 degenerative spondylolisthesis with bilateral severe facet arthropathy causing moderately severe central and foraminal stenosis abutting the L4 nerve roots. The scan showed L4/5/S1 disc reduction and a small bulge bilaterally. No acute fracture was noted. In summary, there are widespread spondylitic changes in the lower lumbar spine and at L4/5 there was some foraminal and canal stenosis with short pedicles and moderate spondylitic changes with probable L4 nerve root irritation.
The MRI of the cervical spine on 22 May 2018 showed loss of normal lordosis with multilevel canal and foraminal stenosis most marked at C5/6. There was no abnormality of the cord.
In summary this claimant was rear ended in the subject accident and has sustained neck and back strain injuries together with a seatbelt injury to his right shoulder.
The claimant’s diagnoses are:
·        Aggravation of cervical spondylosis which is ongoing with post traumatic stiffness with dysmetria and facet arthralgia and radicular complaint with occipital headaches and some pain radiating down the arm;
·        Seat belt injury to right shoulder with post traumatic stiffness, and
·        Post traumatic stiffness of the lumbar spine with aggravation of pre-existing lumbar spondylosis. It is probable that the subject accident aggravated these changes but this aggravation has not been associated with radiculopathy.

Treatment Dispute

The claimant has needed domestic assistance from his wife from the date of accident to the date of assessment. It would be reasonable and necessary for his wife to continue to provide gratuitous domestic assistance from the date of this assessment. Acupuncture only provides a transient benefit, and the assessment is that is not reasonable and necessary. The benefit of physiotherapy has plateaued and is not reasonable and necessary in that circumstance.
The proposed future potential fusion and decompression of the cervical spine has not been deemed reasonable and necessary because there is no radiculopathy to address in the upper extremities.
Annual GP consultations for the injuries suffered in the accident would be reasonable and necessary for the next ten years[TO3] .
Neurological review for the injuries suffered in the accident does not appear reasonable and necessary as there was no gross neurological deficit apparent found in this assessment.
An orthopaedic surgeon reviewing his shoulder may be reasonable and necessary and would be as required and as referred by the GP which would be presumably once in the next five years. Future analgesic medication on a regular basis seems reasonable and necessary for the rest of Mr Fatchurrochim’s life.
These treatments relate to the injuries caused by the accident.

Medical Assessor Dixon calculated the permanent impairment as follows:

That for his cervical spine is DRE II, 5% WPI less DRE II for pre-existing cervical spondylosis, giving 0% whole person impairment.
That for the stiffness of the right shoulder is from Pie Charts 38, 41 and 44, AMA IV, 8% upper extremity impairment which equates to 5% whole person impairment.
That for his lumbar spine where he has post traumatic stiffness with dysmetria with radicular complaint is DRE II, 5% whole person impairment.
There is no assessable impairment for his left shoulder.
This gives a total from the Combined Values Chart of 10% whole person impairment.
There were no symptomatic pre-existing conditions in his lumbar spine.
Although there was pre-existing spondylosis in the claimant's back, this has not stopped him working and it was asymptomatic at the time of the subject accident and deduction therefore is not applicable.
The claimant had a series of neck injury complaints before the subject accident. For consistency, we allow a deduction of DRE II (5%) for the cervical spine.

Panel deliberations & decision

The Panel met on 1 November 2023 and adopted Medical Assessor Dixon’s examination report as evidence in deciding this dispute. The fellow panellists agreed with his findings.

Consistency

The claimant was cooperative throughout the examination, and there was no embellishment. His wife and the Indonesian interpreter assisted Medical Assessor Dixon in making sure that Mr Fatcurrochim understood what he was required to do in response to the examiner’s questions and requests.

Diagnosis and Causation

The Panel accepts that the subject accident caused the injuries, which were referred for assessment in the permanent impairment and treatment disputes.
Although there were constitutional conditions already impacting Mr Fatchurrochim’s physically, the mechanism of the accident was sufficient to cause the frank injuries and the disabilities claimed.

Permanent impairment

Body part or system	AMA guides/ Guidelines references (chapter/page/table)	Permanent (YES/NO)	Current percent WPI	Percent WPI from pre-existing or subsequent causes	Percent WPI due to motor accident
1	Cervical spine	AMA4, Chapter 3 Table 73, Page 3/110 DRE Cervical Category II	Yes	5	5	0
2	Upper extremity (right shoulder)	AMA4, Chapter 3 Figure 38 on page 43 Figure 41 on page 44 Figure 44 on page 45	Yes	5	0	5
3	Lumbar Spine[TO4]	AMA4, Chapter 3 Table 72, Page 3/110 diagnosis-related estimate (DRE) Lumbar Category II	Yes	5	0	5

The combined WPI is 10%.
Permanent impairment ratings take symptoms into account; however, the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates the motor accident caused an injury and symptoms may continue. In spite of that, relevant Guides rate the associated impairment at 0% WPI.

Reasonable and necessary

0 to 12 hours per week of domestic assistance arising from the physical injuries caused by the accident to the date of assessment appears reasonable and necessary in the circumstances due to the ongoing pain he has in his back and right shoulder and that this has been gratuitously provided by his wife.
It is a matter for an Occupational Therapist to assess the number of hours needed, which are related to this specific accident.
The benefit of physiotherapy has plateaued.
Domestic assistance in the future is reasonable for heavy household cleaning, heavy grocery shopping, meal preparation and cooking for some 4 hours per week.
Potential fusion and decompression of the cervical and lumbar spine is not deemed reasonable and necessary in the circumstances, where there is no radiculopathy.
Acupuncture is not deemed reasonable and necessary as it only provided temporary relief.
He does require annual GP review but there is no apparent indication for annual neurological review but he does require ongoing analgesia for the remainder of his life expectancy.

Certification

The Review Panel has assessed different degrees of permanent impairment from the accident-related injuries compared to Medical Assessor Bodel's assessment in his Permanent Impairment certificate dated 20 January 2022.
The outcome is different because of the different outcome from the medical examination. Medical Assessor Dixon found there was no assessable impairment for the left shoulder and he assessed the cervical spine as having a pre-existing permanent impairment equal to the permanent impairment that the accident may have caused.
The treatment findings are different to Medical Assessor Bodel’s certificate because the Panel has allowed for some of the treatment but considered that some of the need for treatment arises from Mr Fatchurrochim’s constitutional conditions as well as that caused by the accident.
Accordingly, the time for treatment to be provided has been shortened to take into account that the constitutional conditions will eventually become the dominant conditions.
Accordingly, the Review Panel has determined that these certificates are revoked, and the Panel will issue new certificates.
Member O’Riain, Medical Assessors Tai Tak Wan and Dixon have viewed this certificate and agree on the outcome.

Passive voice because the ‘actor’ is AFTER their ‘action’. Put the ‘actor’ first, e.g. not ‘The deal was closed by Jim’ but ‘Jim closed the deal.’

[TO2]Fix this with actual date. I have written to the DO to confirm each meeting.

[TO3]Reasonable and necessary?

[TO4]Please fill in the appropriate guidelines

[2023] NSWPICMP 556

3 November 2023