QBE Insurance (Australia) Limited v Ka'akah
[2022] NSWPICMP 223
•18 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ka’akah [2022] NSWPICMP 223 |
| CLAIMANT: | Khaldoon Ka'akah |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL: | Member Susan McTegg Dr Margaret Gibson Dr Geoffrey Stubbs |
| DATE OF DECISION: | 18 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- the claimant suffered injury in a motor vehicle accident: injury to left shoulder, left chest wall, lumbar spine, cervical spine, right shoulder and left arm; dispute related to the assessment of permanent impairment; inconsistency of presentation; surveillance video; inconsistencies on examination; dispute as to recommended ultrasound guided corticosteroid injection of the left shoulder AC joint; Held- revoke certificate of Assessor Bodel; claimant exaggerated the extent of his disability to medical practitioners; diagnosis of acromioclavicular crepitus to left shoulder; inability to assess by range of motion due to inconsistencies; assessment of 3% whole person impairment (WPI) based on table 19 AMA 4 Guides due to crepitus; no injury to left upper limb; soft tissue injury to left chest wall, recovered; soft tissue injury to lumbar spine, recovered; soft tissue injury to cervical spine; 0% WPI cervical spine; no injury sustained to right shoulder; no provision in Motor Accidents Injuries Act 2017 to enable a dispute to be determined in respect of treatment “to be provided”; no power to determine dispute as to ultrasound guided corticosteroid injection of the left shoulder. |
| DETERMINATIONS MADE: | The Panel revokes the certificate of Medical Assessor James Bodel dated 24 May 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10%: · left shoulder – acromioclavicular crepitus; · left chest wall – soft tissue injury; · lumbar spine – soft tissue injury; and · cervical spine – soft tissue injury. The Panel finds the following injuries were not caused by the accident: · right shoulder – soft tissue injury; and · left arm – soft tissue injury. ASSESSMENT OF TREATMENT AND CARE Certificate issued under section 7.23(1) of the MAI Act In relation to the dispute as to the ultrasound guided corticosteroid injection of the left shoulder AC joint recommended by Dr David Lieu on 5 February 20020 the Panel revokes the certificate of Medical Assessor James Bodel dated 24 May 2020. The Panel issues a new certificate determining there is no power under the MAI Act to determine this dispute. |
REASONS
Background
Mr Khaldoon Ka’akah (the claimant) was the driver of a motor vehicle on 4 April 2018 which was stationary when it was hit from behind by a truck (the accident). Mr Ka’akah alleges he sustained injury as a result of the accident.
QBE Insurance (Australia) Limited (the insurer) is the insurer with liability to pay damages to Mr Ka’akah for injuries sustained in the accident under the Motor Accident Injuries Act 2017 (the MAI Act).
This dispute is in relation to whether the degree of permanent impairment of
Mr Ka’akah as a result of the injury caused by the accident is greater than 10%.[1] This constitutes a medical dispute within the meaning of the MAI Act.[2]
REVIEW PROCEDURE
[1] Section 4.11 of the MAI Act.
[2] Schedule Clause 2(a) of the MAI Act.
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The relevant medical assessment was conducted by Medical Assessor James Bodel. He issued a certificate dated 24 May 2021.
Mr Ka’akah filed an application for review of that medical assessment within 28 days after the parties were issued with the certificate of Assessor Bodel.[3]
[3] Section 7.26(10) of the MAI Act.
On 19 August 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26(5) of the MAI Act.
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Clause 14F of Schedule 1 of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A ‘new decision-maker’ is defined in cl 14A of Schedule 1 of the PIC Act and includes Assessor Bodel where the medical assessment the subject of this review occurred after 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[5] The President’s Delegate referred this application for review to the panel.
[5] Section 7.26 (5A) of the MAI Act.
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[6] The Guidelines are issued pursuant to section 10.2 of the MAI Act and are based on 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.[7]
[6] Section 7.21(1) of the MAI Act.
[7] Clause 6.2 of the Guidelines
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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10] However, the assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment resulting from a particular injury and whether a particular injury was caused by the accident. [11]
[10] Section 7.266) of the MAI Act.
[11] Section 7.25 of the MAI Act.
The Panel issued a Direction to the parties on 12 November 2021 (the first Direction) which required each party to file an indexed, paginated bundles of documents. In response to this direction the insurer filed a bundle of documents paginated from pages 1 to 122 [12]and marked AD4. The claimant filed a bundle of documents paginated from pages 1 to 241 and marked AD9.
[12] Insurer’s bundle (AD4)
On 30 November 2021 the Panel agreed an examination was required.
MEDICAL ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Bodel for assessment:
(a) right shoulder - soft tissue injury;
(b) left shoulder - soft tissue injury;
(c) left chest wall - soft tissue injury;
(d) left arm - soft tissue injury;
(e) lumbar spine - soft tissue injury; and
(f) cervical spine – annular tear C6/7 with posterior annular protrusion impinging on left C7 nerve root.
The following treatment disputes were also referred to Medical Assessor Bodel:
(a) whether the request made by Dr David Lieu on 5 February 2020 for ultrasound guided corticosteroid injection of the left shoulder AC joint relates to the injury caused by the motor accident; and
(b) whether the request made by Dr David Lieu on 5 February 2020 for ultrasound guided corticosteroid injection of the left shoulder AC joint is reasonable and necessary in the circumstances.
In his Certificate dated 24 May 2021 Medical Assessor Bodel found the following injuries gave rise to a permanent impairment of 13%:
(a) shoulder – soft tissue injury;
(b) cervical spine – annular tear C6/7 with posterior annular protrusion impinging the left C7 nerve root;
(c) arm-soft tissue injury; and
(d) shoulder – soft tissue injury.
Medical Assessor Bodel found the following injuries have resolved and give rise to no assessable impairment:
(a) lumbar spine – soft tissue injury; and
(b) chest – soft tissue injury.
Medical Assessor Bodel also certified an ultrasound guided corticosteroid injection of the left shoulder AC joint requested by Dr David Lieu on 5 February 2020 related to the injury caused by the accident and was reasonable and necessary in the circumstances.
At the time of his assessment Assessor Bodel reported the following current symptoms:
“● pain at the base of the neck and over the top of the left shoulder;
· head down posture or use of the left arm overhead can aggravate the pain;
· pain and stiffness in the region of the left shoulder with the AC joint as the main source of pain;
· numbness and tingling that radiates down the left arm to all five digits but mostly the index, middle and ring finger. Dr Bodel commented “this is not typically in the C7 distribution”.
· he indicates that the chest wall contusion has completely resolved.
· he indicates that the lower back pain was only minor and has also completely resolved.”
Assessor Bodel did not agree with the opinion of Professor Shatwell who referred to surveillance imaging and found significant medical inconsistency in Mr Ka’akah’s clinical presentation. Assessor Bodel found consistent asymmetry of neck movement but no neurological abnormality in the upper limbs. He also found consistent wasting and tenderness in the rotator cuff, tenderness in the AC joint and a restricted range of movement of the left shoulder. He did not find evidence of radiculopathy in the left upper limb. Assessor Bodel concluded the pathology in the neck and left shoulder was consistent with the injury caused by the accident.
Assessor Bodel referred to surveillance reports and static photographs and stated he did not find anything in the description of the clinical findings or the static photographs to contradict his clinical findings. It is not clear whether he actually viewed the surveillance footage.
Assessor Bodel concluded Mr Ka’akah had suffered a material substantive change in the probably pre-existing pathology in the C5/6 and C6/7 levels of the cervical spine, noting non-verifiable radicular complaints in the left upper limb. He also found a partial thickness tear of the supraspinatus tendon on the articular surface of the left subacromial space and AC joint osteoarthritic changes that had been caused or materially aggravated by the accident.
MATERIAL BEFORE THE REVIEW PANEL
Liverpool Hospital
The ED Discharge Referral from Liverpool Hospital of 4 April 2018[13] provided a diagnosis of a whiplash injury and stated:
[13] AD9 p 30
“Presents post MVA.
Was rear ended when stationary by car which did not brake? 60 kph
Immediate neck pain. Able to get from car.
No head strike, did not hit anything with body
Complains of L check, L shoulder and neck pain.
Was mobile but collared on arrival
No seat belt marks
On exam Post endone so feeling drowsy post this
Chest tender L side. No bruising
Abdo soft
Neck collared but tender C1/2
No neurological deficit
Tender L shoulder at AC joint but able to move shoulder.
For CT neck but hopefully just whip lash
Xray chest and L shoulder
Aim home later with NSAIDs and ongoing analgesia.
EFAST scan NAD
CT spine no fracture, degenerative changes
Xray chest and shoulder normal – very tender and advised can not rule out small fractures to rib with xray.
Discussed ongoing pain relief for home, whiplash advice given.
Home.”
Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 24 April 2018 refers to shock and psychological injury together with injury to the neck, left shoulder, left arm, low back and left chest wall.
MRI cervical spine
An MRI of the cervical spine of 27 April 2018[14] reported:
“1. Narrowing of the right exit neural canal secondary to a moderate to large right lateral osteophyte disc complex encroaching the exit neural canal contacting/impinging on the exiting right C6 nerve root as it enters the neural canal. I note the patient’s symptoms are on the left.
2. Small osteophyte disc complex at C6/C7 not associated with any cord or nerve root compromise.”
MRI lumbar spine
[14] AD9 p 34
An MRI of the lumbar spine also on 27 April 2018 reported:
“Mild left lateral broad based disc bulge encroaching the exit neural canal, contacting/impinging on the existing left L5 nerve root.”
Ultrasound of left shoulder
An ultrasound of the left shoulder was also performed on 27 April 2018. The report of Dr Kundum reads:
“1. It demonstrated a 9 x 6 mm partial thickness articular surface tear within anterior third fibres of the supraspinatus tendon on a background of tendinosis.
2. Mild subacromial/subdeltoid bursitis with some features of shoulder impingement.
3. The remainder of the study outlined normally.”
Certificate of capacity dated 28 April 2018
A Certificate of Capacity dated 28 April 2018 provided a diagnosis of ‘left shoulder pain due to partial tear of supraspinatus and subacromial bursitis’ and certified Mr Ka’akah unfit for work until 10 May 2018.
Clinical notes of Moorebank Shopping Village Medical Centre (Dr Khan)[15]
[15] AD9 p 57
The notes date from 10 May 2018 when Dr Khan referred to an ultrasound of the left shoulder and a partial tear of the left supraspinatus and subacromial bursitis. Dr Khan prescribed Celebrex and Endone.
On 29 May 2018 Dr Khan reported left shoulder pain continued and noted Mr Ka’akah was unable to do painting work and had asked for a medical certificate of capacity.
On 18 June 2018 Dr Khan reported left shoulder pain worse last few days, worse with cold weather. Mr Ka’akah was referred to Activ Therapy for physiotherapy treatment on his left shoulder.
On 17 July 2018 Dr Khan reported the left shoulder pain got worse after he tried to work so he stopped after two hours. On 27 August 2018 Dr Khan certified Mr Ka’akah unfit for work until 21 September 2018.
On 15 October 2018 Dr Khan reported improvement in the left shoulder although he reported upper limb pins and needles during physiotherapy. Mr Ka’akah was certified unfit for work.
Mr Ka’akah reported left shoulder pain to Dr Khan on 23 November 2018 and again on 5 December 2018. On 11 January 2019 Dr Ho recommended an MRI scan and orthopaedic review.
On 20 February 2019 Mr Ka’akah was certified fit for work eight hours a day one day a week with a lifting, carrying, pushing, and pulling restriction up to two kilograms. On 17 April 2019 Dr Khan downgraded his capacity for work to four hours a week.
On 17 June 2019 Mr Ka’akah underwent an ultrasound guided injection of the left shoulder subacromial bursa.[16]
[16] AD9 p 92
On 20 May 2019 Dr Khan reported an increase in pain at night after work, but he upgraded Mr Ka’akah’s capacity for work to eight hours per week. Further complaints in respect of left shoulder pain were recorded on 16 June 2019, 19 August 2019, 3 September 2019, and on 9 September 2019 when Mr Ka’akah was referred for an MRI of the cervical spine and the left shoulder. He continued to be certified fit for restricted work eight hours per week.
On 5 November 2019 Dr Khan prescribed Targin and on 9 December 2019 he reported Mr Ka’akah was unable to work because of an exacerbation of pain. Mr Ka’akah was certified unfit for work, and it seems he has been certified unfit for work since that date.
Mr Ka’akah saw Dr Khan on 5 February 2020, 2 March 2020, 1 April 2020, 7 May 2020, 28 May 2020 and on 29 June 2020 when he suggested he needed an operation first on his shoulder and then his neck.
MRI of the cervical spine on 18 September 2019[17]
[17] AD9 p 99
Mr Ka’akah underwent an MRI of the cervical spine on 18 September 2019 in which
Dr Hazan concluded the features were similar to those demonstrated on 27 April 2018 but included the following comment:“The C6/7 level demonstrates a left sided posterior annular protrusion of the disc with an annular tear. There is impingement upon the originating left C7 nerve. The possibility of left C7 nerve root irritation leading to left sided symptoms, as described, should be considered and correlated with clinical features.”
MRI of the left shoulder on 18 September 2019
In his report dated 18 September 2019 Dr Hazan concluded:
“Swelling of lining of subacromial bursa, without effusion, indicating the possibility of underlying bursitis. Mild tendinosis insertional component supraspinatus tendon. No further changes seen.”
Dr Tony Antoun
Mr Ka’akah was assessed by Dr Tony Antoun who provided a report dated 23 September 2019.[18] Dr Antoun reported that following the accident Mr Ka’akah initially felt fine but later attended hospital complaining of left shoulder pain and neck discomfort. It was noted physiotherapy and a steroid injection to the left shoulder on 17 June 2018 provided minimal relief.
[18] AD4 P 79
Mr Ka’akah reported symptoms of left shoulder pain and numbness in the fingers of the left hand, pain in the front of the left shoulder and shoulder blade area, with clicking on the left side of the shoulder on movement.
On examination, Dr Antoun reported Mr Ka’akah sat throughout the consultation with no obvious distress. Dr Antoun stated Mr Ka’akah’s “symptoms and claimed disability seem to be inconsistent with the clinical signs and simple pathology noted on imaging”. He noted “there were no clinical cervical or lumbar radicular signs, and the claimed sensational changes of the upper limb were not in any specific dermatomal distribution”.
Dr Antoun reported only minor rotator cuff pathology with marked difference in passive range compared to active range. He noted thoraco-scapular dysfunction due to the self-held hunching of the left shoulder.
Dr Antoun felt Mr Ka’akah was fit to return to suitable duties such as administration or quoting in his own business. Dr Antoun telephoned Dr Khan in the presence of
Mr Ka’akah. He stated Dr Khan advised he was not concerned about the neck symptoms or MRI scan findings which he felt were merely coincidental, and that
Mr Ka’akah’s complaints have always been in the left shoulder.Dr Antoun says Dr Khan agreed the symptoms and clinical findings were more consistent with minor rotator cuff pathology and AC joint irritation due to years of painting rather than the accident.
Dr Antoun reports it was agreed Mr Ka’akah should commence work four days per week, four hours per day avoiding above shoulder work or prolonged static neck extension postures.
Allied Health Recovery Requests
An Allied Health Recovery Request dated 5 October 2018 reported Mr Ka’akah was progressing slowly with physiotherapy and reported a burning sensation in the left hand aggravated with shoulder activity and stiffness. Mr Ka’akah was not working and was unable to do household chores.
An Allied Health Recovery Request dated 4 October 2019 reported Mr Ka’akah was progressing slowly with physiotherapy. There had been no change following the cortisone injection. The burning sensation in the left hand continued to be aggravated by shoulder activity and stiffness.
An Allied Health Recovery Request dated 29 February 2020 reported a lifting capacity of two kilograms, independence with self-care, with light household chores and with driving under 30 minutes.
Dr Al Khawaja
Mr Ka’akah saw Dr Al Khawaja, neurosurgeon on 21 November 2019.[19] He recorded severe neck pain going to both shoulders, mainly the left side and to the arm with tingling on the left arm, excessive sweating on both hands, but left more than right and pins and needles of all fingers on the left.
[19] AD9 p 38
Dr Al Khawaja reported severe limitation of all neck movements, limitation of left shoulder movement, weak grip on the left side, diminished triceps jerk on the left side and decreased sensation at the left C7 distribution. Dr Al Khawaja recommended
Mr Ka’akah see a shoulder specialist and recommended an injection to the left C7 nerve root and left C6 facet.
Dr David Lieu
On 5 February 2020 Mr Ka’akah consulted Dr David Lieu, orthopaedic surgeon.[20] He reported ongoing left sided neck and shoulder pain since the accident and noted
Mr Ka’akah had not been able to work for the past year. On examination he noted the acromioclavicular joint was very irritable with painful clicking and the neck was also irritable. He felt the bulk of the symptoms were coming from the cervical spine. He noted the MRI was unremarkable. Dr Lieu recommended a CT guided cortisone injection into the acromioclavicular joint.
Dr Bentivoglio
[20] AD9 p 42
Dr John Bentivoglio, orthopaedic surgeon assessed Mr Ka’akah at the request of his lawyer and provided a report dated 4 March 2020.[21] He reported Mr Ka’akah was employed as a painter at the time of the accident. He attempted a graduated return to work, working one day per week for a period of one month prior to stopping work.
Dr Bentivoglio reported complaints of neck pain, shoulder pain, decreased movement in the shoulder, pins and needles, and pain radiating down the left upper limb, extending to the left hand.[21] AD9 p 45
Dr Bentivoglio noted that the MRI scan of the cervical spine of 27 April 2018 indicated the major abnormality was on the right-hand side at the C5/6 level, however,
Mr Ka’akah’s symptoms were left-sided. Whilst he noted the most recent MRI indicated evidence of an annular tear at the C6/7 level with a posterior annular protrusion impinging on the left C7 nerve root he noted the numbness in the left hand did not conform to a C7 radiculopathy.Dr Bentivoglio found Mr Ka’akah probably had some degree of radiculopathy involving his left upper limb and concluded that the discal abnormality seen at the C6/7 level may have been caused by the accident even though it did not show up on the first MRI scan three weeks after the accident. He also concluded the early degenerative changes involving the acromioclavicular joint could have been caused by the accident noting the MRI scan of the shoulder was approximately 18 months after the accident.
Procare Vocational Assessment Report (George Lim)
Mr Ka’akah was assessed by Procare for an earning capacity report on 4 February 2020. George Lim provided a report dated 16 March 2020.[22]
[22] AD4 p 90
Mr Lim identified suitable employment options for Mr Ka’akah as light process worker or light assembly worker. Mr Ka’akah indicated he was determined to return to work as a painter. Mr Ka’akah was considered to have limited transferrable skills and limited English skills which reduced his employability on the open labour market.
He reported severe neck, left arm and left shoulder pain, ‘clicking’ in left shoulder when lifting arm above shoulder height, pins and needles in all fingers on the left, hand swelling after activity and excessive sweating in the left hand. He also reported less strength in his left hand compared to his right hand, lifting restrictions of two kilograms with the left hand and difficulties with activities above shoulder height.
Mr Ka’akah was reported to sit for approximately 1 hour and 15 minutes without displaying any overt signs of pain, he was able to stand comfortably when greeting the Assessor, able to walk in and out of the café comfortably and was seen to grasp a pen to sign off documents.
Associate Professor Shatwell
Associate Professor Shatwell undertook an assessment at the request of the insurer and provided a report dated 18 September 2020.[23] He reported complaints of severe pain in the shoulder and neck and numbness in the whole of the left arm. Mr Ka’akah reported he was unable to walk for more than 15 minutes, run for more than two minutes, and could not stand or sit for more than 30 minutes. He reported being able to drive for only five minutes. Associate Professor Shatwell reported Mr Ka’akah had not worked since the accident.
[23] AD4 p 63
Associate Professor Shatwell reported he observed Mr Ka’akah sit for more than an hour during history taking without any obvious limitation of neck movement. There was no asymmetry in the shoulder girdles in the sitting position. Mr Ka’akah was observed to walk with a slow gait and tended to hunch his left shoulder and hold his left arm still. Lumbar spinal movements were within normal limits. Cervical spinal movements were within normal limits with no asymmetry in rotation or lateral flexion. The range of movement was approximately 80% of normal. Associate Professor Shatwell reported complaints of pain at the extremes of movement towards the left side. There was no wasting of the upper limbs.
Associate Professor Shatwell concluded changes in the cervical spine were due to early degenerative change at C5/6 and C6/7. He reported that the “persistence of severe pain for approximately two and a half years after the accident in question was not consistent with the biological healing of soft tissue injuries”. He concluded ongoing symptoms of a severe nature were “unlikely to be organic”.
Associate Professor Shatwell recorded a significant loss of grip strength of the left hand. However, he noted that there was no wasting in Mr Ka’akah’s left upper limb to correlate with the “profound weakness of grip in his left hand”. He felt the “discordant observations made the results of the examination unreliable”.
Associate Professor Shatwell was of the view Mr Ka’akah’s disability was contrived and he was fit for his normal work activities. He was of the view Mr Ka’akah exaggerated his symptoms and displayed gross signs of illness behaviour. He concluded
Mr Ka’akah did not sustain any significant injury in the accident and that any soft tissue injuries would have settled within a matter of a few days or weeks.
Surveillance
The insurer arranged for QuantumCorp to undertake surveillance of Mr Ka’akah. A report was provided dated 22 December 2020 accompanied by footage taken on 23 and 24 October 2020 and 2 November 2020.
On 23 October 2020, Mr Ka’akah is seen opening and closing the boot of a car.
On 24 October 2020, Mr Ka’akah is seen lifting a large paint bucket out of a boot and carrying it in both arms.
On 2 November 2020, Mr Ka’akah is seen walking into a house with what appears to be a paint can, and then appears to be on a ladder painting inside the residence.
Mr Ka’akah is later seen outside with a co-worker, with paint on his workwear and hands. He is viewed lifting his arms up to rest on a ladder at chest height. He is also filmed walking in and out of a service station.
RELEVANT LEGAL AUTHORITY
Causation
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the 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 therefore 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.
6.6 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, 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.”
Surveillance evidence
The Court of Appeal considered the use of surveillance evidence in Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 Adamson J considered the general principles which relate to the use of surveillance evidence. Her Honour stated:
“155. In proceedings for damages for personal injury, surveillance film may be relevant on several bases, including the plaintiff’s credibility, capacity to work, need for domestic services and causation. Such film can be used to show that a plaintiff has not been frank either about a particular matter or about his or her capacity generally. The timing of the film may be at odds with a history given to a medical practitioner at a proximate time, or with the plaintiff’s evidence in chief and thereby lead the tribunal of fact to regard the plaintiff’s credibility as impugned by the film.
156. The potential significance of such film derives not only from its content (including what it may show about the plaintiff at a time when he or she is unaware that it is being taken) but also from the time at which it is revealed. Thus, it has been held to amount to a denial of procedural fairness to require a defendant to disclose such film in advance of a hearing, and, in particular, in advance of a plaintiff having completed his or her evidence in chief: Australian Postal Commission v Hayes at 326-329 per Wilcox J; cf. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.10(2)(a).
157. It is of present relevance that the contents of the film may also undermine the basis on which experts have expressed opinions and therefore require the primary judge to assess the value of the opinions expressed having regard to any disparity between the facts on which an expert opinion has been based and the (incontrovertible) facts as shown in the surveillance film.”
Her Honour commented further on the weight to be given to surveillance evidence in the absence of express evidence as follows:
“167. If there is no express evidence of the difference the surveillance evidence makes to the opinion of the plaintiff’s experts, the primary judge must decide what difference any disparity between the history given by the plaintiff and what the surveillance evidence reveals makes to the reliability (and admissibility) of the opinions expressed. A substantial disparity will make the opinion evidence inadmissible; a lesser disparity will affect its weight.”
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 23 June 2021 in support of the application for review.
Firstly, the insurer submits it is not clear Medical Assessor Bodel actually viewed the surveillance footage, although it is clear he viewed the surveillance report. The insurer submits the footage clearly shows the claimant working as a painter.
The insurer also relies upon submissions dated 19 January 2021 in response to the permanent impairment dispute.
The insurer submits the claimant’s self-reported incapacity and disabilities are not compatible with the examination nor with the surveillance footage of him working as a painter. The insurer submits that the surveillance footage contradicts the claimant’s presentation to Associate Professor Shatwell where the claimant presented with a hunched left shoulder, holding his left arm and a slow gait. In the surveillance footage the claimant does not have a hunched left shoulder, does not demonstrate any abnormality of gait and is seen to lift and carry paint buckets.
The insurer relies upon the opinion of Associate Professor Shatwell who referred to the various radiological investigations and noted they did not show any sign of acute injury to the cervical spine or left shoulder.
Further, the insurer submits the claimant did not identify any injury to the lumbar spine, left chest wall and the right shoulder when he was assessed by
Associate Professor Shatwell. The insurer submits even if the claimant did sustain injury to these body parts it was a soft tissue injury which has since resolved.
Claimant’s submissions
The claimant provided submissions dated 26 October 2020 in support of the dispute as to permanent impairment. In those submissions the claimant notes the Certificates of Capacity refer to “left shoulder pain due to partial tear of supraspinatus and subacromial bursitis”.
The claimant relies upon the MRI scan of the cervical spine dated 18 September 2019 which reported a posterior annular tear with protrusions at C6/7 level with impingement. The claimant otherwise relied upon the opinion of Dr Bentivoglio who noted radiculopathy and assigned DRE III resulting in a WPI in excess of 10%.
The claimant provided undated submissions in response to the application for review. The claimant submits the surveillance footage is not inconsistent with the report of
Dr Bodel who found there were some periods when the claimant did, in fact, have a capacity for employment.The claimant also submits that Assessor Bodel found that what can be seen on the surveillance footage including lifting an object and his hands above shoulder height was not inconsistent with the claimant’s presentation to Assessor Bodel.
EXAMINATION
On 19 April 2022 Mr Ka’akah was examined by Medical Assessor Stubbs and
Medical Assessor Gibson on behalf of the Panel at Assessor Gibson’s rooms.Mr Ka’akah attended with his wife and interpreter. The examination room was small, so Mrs Ka’akah and the interpreter remained in the waiting room, the interpreter being contacted by speakerphone. He had a good command of basic English, and the help of the interpreter was only required occasionally.
Background
Mr Ka’akah came to Australia from Jordan nine years ago with his family on a refugee visa. He has very limited access to social services. His refugee status does not entitle him to Medicare benefits, and he has not pursued treatment for the shoulder or neck.
He was formerly in the Jordanian army.
Since 2017 he has worked with his brother as a house painter, on a subcontracting basis. He is generally well and denies prior injuries.
He was stationary at traffic lights in his Subaru sedan when his vehicle was struck in the rear by a large vehicle which he said was a semitrailer. His vehicle was pushed into the intersection. Following the collision his vehicle was moved off the road. He was only about 10 minutes away from his home, so he rang his wife who took him to Liverpool Hospital.
He was off work for three weeks then returned to work for a brief period. He has been off work ever since. It is not clear whether he is claiming workers compensation benefits or is receiving sickness benefits. He has only limited social security entitlements on a refugee visa.
He reported ongoing and incapacitating pain in his left shoulder. Mr Ka’akah was asked about the surveillance footage. When asked about the image taken through a window which shows him standing on a ladder painting with his right hand, he replied he was doing some minor touch-ups. He said at that time he was supervising his brother who was working for him.
He said that both shoulders had been painful since the accident, and this was incapacitating. He was however able to drive. It was pointed out to Mr Ka’akah that he displayed a full range of movement in his right shoulder whilst dressing and undressing. He said the shoulder was painful but did not elaborate further or explain why his movement was unrestricted. Mr Ka’akah confirmed that both the van and the utility seen in the surveillance footage belong to him. However, he insisted he was only supervising his brother and not doing any physical work.
The hospital report of an injury to his acromioclavicular joint was pointed out to
Mr Ka’akah. His response was that the injury was not only to his shoulder but to his neck and back as well. He described pain spreading from the left side of his neck down his left arm and ongoing tingling and numbness in the whole of his left arm that worsened with use. He said pain in the left shoulder wakes him at night. His hand swells when lifting. The symptoms had not improved with time or rest.When asked how he hurt his left shoulder in the motor vehicle accident Mr Ka’akah said he thought it was from the seatbelt. He was nonplussed when it was pointed out that the seatbelt would have been across his right shoulder.
Imaging studies
The Panel did not have the opportunity to personally review the imaging studies.
Clinical examination
He moved around without difficulty and could tip toe and heel toe walk. He was of a lean build and approximately 175 cm tall. He was wearing a tight black T-shirt, work pants and sneakers. He appeared quite comfortable whilst sitting, but it was noted that he held his left arm across his lap throughout the whole time and made no gesticulations with his left arm as he did with his right.
He was able to undress himself but kept the left arm by his side whilst taking off the
T-shirt and later putting it back on. He stood with the left scapular protracted, so the left shoulder was low and forwards.
Cervical spine
On clinical examination Mr Ka’akah complained of pain in the left trapezius, particularly on looking to the left. Flexion and extension of the cervical spine was otherwise unrestricted and although he complained of tenderness in the para scapular musculature there was no spasm or guarding. When the left arm was supported by the examiner full rotation of the head to the left was performed without any complaint of pain. Mr Ka’akah had a near full range of cervical movement without asymmetry guarding or spasm when the left arm was supported by the examiner while standing.
Left shoulder
The claimant’s general upper body development was observed to be good; no wasting was observed in the left shoulder girdle. He had unrestricted movement of the right arm but was reluctant to move the left shoulder. Left elbow, wrist and finger movements were normal.
The left shoulder was markedly restricted in voluntary movement including flexion measured at 70 to 90° over three movements and abduction measured at 60 to 80° over three movements. Extension of the shoulder was 45° on the right side but only 20 to 30° on the left. Cross body adduction was very limited on the left measuring 20° compared to 40º on the right. Noticeably the claimant was unable to bring his fingertips on his left hand to the right shoulder even with the elbow across the chest. The Panel asked him why this was so when he was able to demonstrate full movement of the left elbow without movement of the shoulder when his arm was by his side. Mr Ka’akah said the movement hurt his left shoulder. He was not able to sustain abduction to allow measurements at 90°. He cannot bring his left hand up behind his back. However, with the elbow supported by the side he demonstrated unrestricted internal and external rotation.
He complained of crepitus in the left shoulder which seemed to arise from the left acromioclavicular joint though it was difficult to reliably localise. The claimant could reproduce the crepitus by shrugging the left shoulder. The left acromioclavicular joint is not markedly different in contour to the right and it was only moderately tender to firm pressure. The variation in movement of the left shoulder was pointed out to the claimant. He was advised driving would require him to move his left arm more extensively than he was able to demonstrate on clinical examination. His response was to advise that his wife had driven him to the appointment. The Panel also pointed out that there was no restriction of movement apparent on the video surveillance. His reply was to assert that the arm was too painful to move fully.
The Panel felt there was considerable inconsistency in movement. The Panel could not reconcile the very limited range of movement seen in the clinical examination with the absence of muscle wasting in the left shoulder girdle or upper arm generally. Nor could the Panel reconcile the absence of muscle wasting with the weakness shown in clinical testing of grip strength with the elbow by the side on the left-hand side.
Upper limbs
Neurological examination of the upper limbs was normal. Biceps jerk, triceps jerk, and supinator jerk were present and easy to elicit. The right arm was ½ cm greater in circumference than the left as is the right forearm, consistent with right hand dominance. Muscle development was good. Grip strength in the right hand (elbow by the side) was 5/5 but only 4/5 on the left. There was no dermatomal pattern alteration in sensation. Both elbows, wrists, hands, and fingers moved normally.
Lower back
The lower back showed a low normal range of motion in flexion, extension, and side bending. There was no asymmetry or guarding. The claimant could reach with his fingertips to about his thigh. His hips, knees and ankles were normal on both sides. Girth measurements were equal between the thighs and the calves. Straight leg raising was actively resisted at 30° on both sides but knee extension was full when sitting on the side of the couch leaning forwards. Knee and ankle jerks were present and symmetrical.
Lower limbs
The claimant was able to demonstrate unrestricted movement of the hips, knees and ankles on both sides. He had 5/5 power of the lower limb joints.
PANEL FINDINGS
The Panel carefully reviewed the documentation in respect of the injuries which were referred to Medical Assessor Bodel.
Inconsistencies
The Panel has regard to clause 6.41 of the Guidelines having regard to the apparent inconsistency between the findings on examination and the available documents including the surveillance footage.
Associate Professor Shatwell reported Mr Ka’akah said he cannot walk for more than 15 minutes; he cannot stand or sit for more than 30 minutes, he cannot drive for more than five minutes, and he was certified unfit for any type of employment.
Associate Professor Shatwell reported the claimant walked with a slow gait, tended to hunch his left shoulder and held his left arm still.The Panel finds clear inconsistency between the claimant’s movements demonstrated on the surveillance footage of 23 and 24 October 2020 and 2 November 2020 and his presentation to Associate Professor Shatwell on 18 September 2020. The footage does not disclose any abnormality with the claimant’s gait, his shoulder is not hunched, and he appears able to carry paint cans with relevant ease. Whilst the claimant was not observed to walk for more than 15 minutes or sit or stand for more than 30 minutes the ease of movement seen on the video footage is at odds with the level of disability claimed.
On 2 November 2020 the claimant is seen to gesticulate with his left arm with apparent ease and to raise his left arm to his head, in contrast to his presentation to medical practitioners, including Associate Professor Shatwell and this Panel.
The Panel notes Dr Antoun also expressed concern about the reliability of the claimant’s presentation stating his “symptoms and claimed disability seem to be inconsistent with the clinical signs and simple pathology noted on imaging”.
The Panel was not satisfied with the claimant’s explanation for the limitations he demonstrated on examination in the absence of confirmatory clinical signs such as secondary muscle wasting. Assessors Stubbs and Gibson concluded the variations in active range of movement demonstrated by the claimant on examination was due to a lack of effort on his part.
The Panel finds the claimant has exaggerated the extent of his disability in his presentation to medical practitioners.
Right shoulder
There was no history of injury to the right shoulder and nor was there any complaint referrable to the right shoulder at the time of the examination.
The Panel did not find any injury or impairment of the right shoulder.
Left shoulder
Likewise, the Panel was not satisfied by Mr Ka’akah’s inability to explain why he might have an injury to the left acromioclavicular joint from the accident. However, the Panel accepts because of the accident the claimant sustained injury to the left shoulder having regard to the left shoulder complaint reported by Liverpool Hospital on the day of the accident, the left shoulder x-ray undergone at the hospital, the subsequent investigations of the left shoulder and the consistency of complaint thereafter. The Panel accepts Mr Ka’akah did not access physical therapy having regard to the cost where he was not covered by Medicare. The Panel considers a diagnosis of acromioclavicular crepitus to be appropriate.
The Panel felt that assessment by range of motion was inappropriate. Passive range of motion could not be determined because the claimant was unwilling to move the left arm. The Panel applied clause 6.50 of the Guidelines. Inconsistency in range of motion demonstrated by the claimant meant range of motion should not be used to determine permanent evaluation in accordance with clause 6.50(d) of the Guidelines.
The Panel proposes to rely upon clause 6.50(e) in using crepitus arising from the acromioclavicular joint to evaluate impairment. The Panel notes the claimant could produce crepitus voluntarily without obvious discomfort. Under table 19 of the AMA 4 Guides at page 59 moderate constant crepitus during active range of motion gives rise to a 20% joint impairment. Applying table 18 on page 58 of the AMA 4 Guides results in 20% x 25 = 5% upper extremity impairment which under table 3 on page 20 of the AMA 4 Guides equates to a 3% WPI.
Left arm-soft tissue injury
Injury to the left arm was recorded in the Application for personal injury benefits completed on 24 April 2018 and the claimant thereafter complained of symptoms in the left arm and hand.
The Panel felt the restriction of movement of the left upper limb demonstrated by the claimant on examination could not be reconciled with clinical signs such as the lack of muscle wasting or with the claimant’s movements as seen on the surveillance video.
On examination the Panel found no restriction of movement of the left elbow, wrist, hand or fingers. Whilst there was a complaint of left upper limb pain, the Panel notes the pain did not follow a dermatomal distribution and therefore, does not qualify as non-verifiable radicular complaints.
The Panel is not satisfied the claimant sustained a frank injury to the left upper limb and finds any pain or restriction of movement arises from the injury to the left shoulder.
Left chest wall – soft tissue injury
No complaint was made at the time of the examination in respect of the left chest wall.
However, the Panel notes Liverpool Hospital reported the chest was tender following the accident and the Application for personal injury benefits recorded injury to the chest wall.
The Panel notes Medical Assessor Bodel reported Mr Ka’akah experienced central chest pain over a period of about six to eight weeks following the accident.
The Panel accepts the claimant may have sustained a soft tissue injury to the left chest wall which has since resolved.
Lumbar spine
The Panel notes that injury to the lumbar spine was consistent with the mechanism of the accident and there was contemporaneous documentation including the Application for personal injury benefits completed on 24 April 2018 and the MRI scan of 27 April 2018, although little complaint of back pain thereafter.
The Panel accepts the claimant may have sustained a temporary soft tissue injury to the lumbar spine. However, the panel found no muscle spasm or guarding, no asymmetry of neck movement, no non-verifiable complaints, no structural inclusions and no radiculopathy. The Panel finds any injury to the lumbar spine has resolved.
Cervical spine
The Panel notes that injury to the cervical spine was consistent with the mechanism of the accident and there was contemporaneous documentation including the complaint of injury recorded by Liverpool Hospital on the day of the accident, the Application for personal injury benefits, the MRI scan of 27 April 2018 and the complaints recorded by Dr Antoun, Dr Al Khawaja, Dr Lieu and Dr Bentivoglio to corroborate injury to the cervical spine.
The Panel accepts the claimant sustained a soft tissue injury to the cervical spine but did not find any impairment of the neck. In particular, the Panel notes that supporting the right arm restored full motion in the cervical spine. Whilst there was a complaint of left upper limb pain this did not follow a dermatomal distribution and therefore did not qualify as non-verifiable radicular complaints. The Panel found no muscle spasm or guarding, no asymmetry of neck movement, no non-verifiable complaints, no structural inclusions and no radiculopathy. The Panel assess the cervical spine in DRE I category, Cervicothoracic Spine Table 73, page 110 as 0% WPI.
Summary of injuries referred for assessment
The following injuries were caused by the accident:
(a) left shoulder – acromioclavicular crepitus;
(b) left chest wall – soft tissue injury;
(c) lumbar spine – soft tissue injury; and
(d) cervical spine – soft tissue injury.
The following injuries were not caused by the accident:
(a) right shoulder – soft tissue injury; and
(b) left arm – soft tissue injury.
The following injuries caused by the accident have resolved:
(a) left chest wall – soft tissue injury; and
(b) lumbar spine – soft tissue injury.
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 | Left Upper Extremity (Left Shoulder) | Table 19 on page 59 AMA 4 Guides, table 18 on page 58 AMA 4 Guides and table 3 on page 20 AMA 4 Guides. | Yes | 3% | 0 | 3% |
| 2 | Cervical Spine | DRE Cervicothoracic Category I Table 73 on Page 3/110 AMA 4 Guides | Yes | 0% | 0 | 0% |
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
There is no pre-existing or subsequent impairment.
Apportionment
There is nil apportionment.
TREATMENT DISPUTE
The Panel is also asked to determine the following treatment dispute pursuant to Schedule 2(2)(b) of the MAI Act:
(a) whether the request made by Dr David Lieu on 5 February 2020 for ultrasound guided corticosteroid injection of the left shoulder AC joint relates to the injury caused by the motor accident; and
(b) whether the request made by Dr David Lieu on 5 February 2020 for ultrasound guided corticosteroid injection of the left shoulder AC joint is reasonable and necessary in the circumstances.
The Panel refers to the decision of the Review Panel in the matter of Mohamed Obeid v AAI Ltd T/as AAMI [2022] NSWPICMP 76 handed down on 5 April 2022.
Whilst not binding the Panel agrees with the conclusions of the Review Panel in the matter of Obeid. The Panel finds that a dispute for future treatment such as the injection recommended by Dr Lieu is not a medical assessment matter under Schedule 2 of the MAI Act.
Pursuant to Schedule 2 medical assessment matters include:
“whether the cost of treatment and care provided to the injured person is reasonable and necessary or relates to the injury caused by the motor accident for the purposes of s 3.24 (Sch 2 cl 2(b)).”
Section 3.24 of the MAI Act relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person –
(a) the reasonable cost of treatment and care…”
The wording of section 3.24 of the MAI Act departs from the wording of section 58 of the preceding legislation, the Motor Accident Compensation Act 1999 (the MAC Act).Under 58(1)(a) of the MAC Act medical assessment matters includes:
“whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances.”
Section 58 of the MAC Act not only refers to treatment “provided” but also to treatment “to be provided”. The latter words were removed from the correlating provision in the MAI Act evidencing an intention to limit jurisdiction to disputes where the treatment has been provided.
Similarly, the wording of s 3.24 of the MAI Act incorporating the word “incurred” suggests the treatment expense has already been incurred. This interpretation is consistent with s 3.27 of the MAI Act which provides that no statutory benefits are payable unless the expenses are verified in accordance with the Guidelines. Under the MAI Act there is no provision permitting a dispute to be determined in respect of treatment which is “to be provided”.
The Panel notes the treatment, namely the ultrasound guided corticosteroid injection of the left shoulder AC joint has not been provided and no liability to pay for the treatment has been incurred.
The Panel finds the dispute about future treatment is not a medical assessment matter and there is no power under the MAI Act for either a Medical Assessor or a Review Panel to determine such a dispute. In the circumstances the Panel considers it appropriate to revoke the Certificate of Medical Assessor Bodel where he had no power to issue that certificate.
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