QBE Insurance (Australia) Limited v Malek
[2022] NSWPICMP 104
•21 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Malek [2022] NSWPICMP 104 |
| CLAIMANT: | Laura Malek |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL: | Principal Member Josephine Bamber Dr Shane Maloney Dr Geoffrey Stubbs |
| DATE OF DECISION: | 21 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Review of Medical Assessment under Motor Accident Compensation Act 1999; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 22 October 2017; Held- original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the cervical spine, lumbar spine and left shoulder in total are not greater than 10% whole person impairment; finding that the right hip and right shoulder were not injured in the motor accident. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%: · cervical spine – soft tissue injury; · lumbar spine- soft tissue injury, exacerbation of underlying symptomatic lumbar condition, and · left shoulder-soft tissue injury, exacerbation of underlying degenerative asymptomatic condition. |
BACKGROUND
Ms Laura Malek alleges she suffered injury when she was a passenger in a stationary vehicle at lights when another vehicle collided with the rear of the vehicle on 22 October 2017.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Ms Malek any damages to which she may be entitled under the Motor Accidents Compensation 1999 (the MAC Act).
The parties are in dispute as to whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See s 58(1)(d) of the MAC Act.
The degree of permanent impairment is determined by making an assessment pursuant to Motor Accident Permanent Impairment Guidelines- Version 1, effective from 1 June 2018 (the Guidelines)[2]. The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[2] Issued pursuant to s 44(1)(c) of the MAC Act and see s 133 of the MAC Act.
[3] Clause 1.2 of the Guidelines.
On 12 October 2020 Ms Malek’s solicitors filed her Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service[4]. She sought assessment of injuries to her right upper extremity, left upper extremity, cervical spine, lumbar spine, left hip and psychological injury.
[4] AD4 p1.
On 1 March 2021 the Personal Injury Commission (the Commission) commenced and now has jurisdiction in relation to Ms Malek’s Application. Medical Assessor Truskett in his certificate dated 29 March 2021[5] assessed the degree of permanent impairment suffered by Ms Malek caused by the motor accident on 22 October 2017.
[5] AD3 p 376.
Medical Assessor Truskett found the following injuries were caused by the motor accident: “cervical spine- C6 disc rupture, lumbar spine- soft tissue injury and left shoulder -soft tissue injury”. At [20] of his certificate/reasons he found that the alleged injuries to the left hip and right shoulder were not caused by the accident. Medical Assessor Truskett found Ms Malek has 11% whole person impairment (WPI) comprised of 5% WPI in relation to her cervical spine, 3% WPI for her lumbar spine and 3% WPI for her left shoulder.
The insurer filed an Application for Review of Medical Assessor Truskett’s certificate pursuant to s 63 of the MAC Act.
On 20 July 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as she was satisfied that 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.[6]
[6] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a member of the Motor Accidents Division of the Commission.
CONDUCT OF THE REVIEW
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.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The Panel issued a Direction to the parties dated 15 October 2021 requiring them to each file an indexed, paginated bundle of documents that they wished to rely upon in relation to the review. The insurer’s documents were filed as AD3 and Ms Malek’s as AD4.
On 22 October 2021 the insurer’s solicitors wrote to the Panel enclosing email exchanges between its office and that of Ms Malek’s solicitors of 21 and 22 October 2021 (AD5). The insurer objected to Ms Malek relying on various reports, referred to below.
The Panel had conducted a preliminary review of the matter by way of a telephone conference between all of the Panel members. Subsequently, the Panel considered the correspondence of 22 October 2021. On 4 November 2021 the Panel issued the following Preliminary Review and Review Panel Directions:
“1. The Review Panel (the Panel) issued a direction dated 15 October 2021 requiring the parties to each file an indexed paginated bundle of the documents relied upon in relation to the review. The Panel has considered these documents and notes that the Insurer’s bundle from pages 96 to 105 includes Progress Notes from Restwell Medical Centre. However, only the odd numbered pages are included (see the Medical Centre’s numbering on the bottom right-hand corner of each page).
2. The Panel directs the Insurer to file and serve a complete copy of the Progress Notes from the Restwell Medical Centre on or before 19 November 2021.
3. The Panel notes the Claimant has included in its bundle of documents submissions dated 22 October 2021 seeking to rely upon the following further medical evidence:
i.Dr Khong reports 20 October 2021, 27 August 2021, 2 July 2021, 7 May 2021
ii.C6 injection referral of Dr Khong 27 August 2021
iii.Bone scan 15 January 2021
iv.MRI left shoulder 27 January 2021
4. By way of letter dated 22 October 2021, the Insurer’s solicitors object to the above-mentioned medical evidence being considered by the Panel. The Insurer submits it is prejudiced because of the inability to make submissions on material not previously provided by the Claimant to the Commission. Also, the Insurer submits the earlier reports of Dr Khong suffer from a lack of having been provided with a full and complete pre-accident history.
5. The Panel has determined that the further medical evidence should be considered by the Panel, however in the interests of procedural fairness the parties can make further submissions in relation to this material and, also, if relevant, relating to the full copy of the progress notes from the Restwell Medical Centre.
6. Accordingly, the Panel directs:
1.The Insurer is to file and serve any further written submissions on or before 19 November 2021.
2.The Claimant is to file and serve any further submissions on or before 26 November 2021.
7. The Panel has determined that examination of the Claimant is required by both Medical Assessors who are members of the Panel in relation to all body parts which were referred for assessment to Medical Assessor Truskett to determine causation of all of the alleged injuries and the permanent impairment of those injuries the Panel determines were caused by the motor accident.
8. The Panel advises the following details in relation to the examination:
Date: 14 December 2021
Time: 11am
Address: Dr Shane Maloney
South Maroubra Medical Practice,
15/3 Meagher Ave,
South Maroubra 2035.
9. The Claimant is to bring to the examination all radiological imaging studies.”
In response to the above-mentioned Directions the insurer filed additional submissions dated 15 November 2021 (AD6). However, they did not file a complete copy of the Progress Notes from the Restwell Medical Centre, which the Panel had requested. Ms Malek’s solicitors filed submissions in response dated 18 November 2021 (AD7).
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
SUMMARY OF RELEVANT DOCUMENTATION
[9] Section 63(3A) of the MAC Act.
Imaging
Cervical spine:
(a) 3 April 2018 MRI cervical spine- Bankstown Lidcombe Medical imaging. The amended report refers to moderate disc osteophyte complex at the C5/6 level with likely compression of the exiting C6 nerve roots[10].
(b) 10 January 2019 MRI cervical spine- Dr Jeff Sacks, Bankstown Lidcombe Medical Imaging, performed this scan at the request of Dr Lim. A diffuse disc bulge and spondylosis C5/6 level was present and said to be similar to that of April 2018[11].
(c) 12 February 2021 MRI cervical spine – Dr Moharami, Bankstown Lidcombe Medical Imaging, performed this scan at the request of Dr Khong. The conclusion was “Main abnormality is at C5/6 where there is moderate loss of disc height, broad-based disc bulge, bilateral uncovertebral hypertrophy with moderate left foraminal narrowing and possibly impingement of the exiting C6 nerve[12]”.
[10] AD4 pp 64 and 279.
[11] AD4 pp 68-69 and 244-245.
[12] AD3 p 395.
Lumbar spine:
(a)7 March 2014 MRI lumbar spine – undertaken by radiologist Dr Ronny Low, Medical Imaging Bankstown at the request of Dr Assad Malek. In his report Dr Low found L5 spondylolytic spondylolisthesis with anterolisthesis measuring 13mm. He referred to associated degenerative change of the L5/S1 disc and bilateral multifactorial L5 foraminal narrowing and mid facet joint arthropathy[13]. The films were not provided to the Panel. An x-ray undertaken the same day refers to the “severe anterior anterolisthesis of L5 on S1 measuring 18mm[14]”.
(b)1 September 2017 MRI lumbar spine –undertaken by Dr Rashidi Mbakada, Quantum Radiology, who in his report found a grade 2 anterolisthesis of L5 of S1 measuring 1.2cm, associated with bilateral pars defects. With narrowing of the exit neural canals bilaterally more on the left where there is impingement of the exiting left L5 nerve root[15]. The referring general practitioner (GP) was
Dr Maya El Azzi. The films were not provided to the Panel.(c)3 April 2018 MRI lumbar spine Bankstown Lidcombe Medical imaging amended report refers to compression of the exiting left L5 root and probable compression of the exiting right L5 root and Grade 2 spondylolisthesis of L5 on S1 secondary to bilateral L5 spondylosis[16].
(d)1 February 2019 x-ray lumbar spine Strathfield Medical Imaging.
(e)12 February 2021 x-ray lumbar spine Bankstown Lidcombe Medical Imaging
(f)12 February 2021 MRI lumbar spine – Dr Moharami, Bankstown Lidcombe Medical Imaging, performed this scan at the request of Dr Khong. “There is a grade 2 anterolisthesis with 9mm anterior slippage of L5 on S1 and bilateral pars defect of L5. Due to anterolisthesis there is marked bilateral foraminal narrowing more prominent on the left than right with impingement of the exiting L5 nerves. There is marked loss of disc height and Modic type 2 endplate change[17]”.
[13] AD3 p 229 and 391.
[14] AD3 p 231.
[15] AD3 pp 90, 132 and 390.
[16] AD 4 p 279.
[17] AD3 p 394.
Left hip:
(a) 11 November 2019 MRI left hip – Bankstown Lidcombe Medical Imaging. The report reveals a partial thickness tear of the insertion of the gluteus minimus and a labral tear extending from the anterosuperior to superior region of the hip joint with the presence of a paralabral cyst[18].
[18] AD4 pp 73-74 and 197-198.
Bone scan:
(a) 15 February 2021 whole-body bone scan – Waratah Imaging, was performed at the request of Dr Khong. The clinical notes on the report refer to neck and right shoulder pain, lower back pain and left leg numbness. The conclusions are that there was “degenerative uptake at the C5/6 vertebral body endplates, but no evidence of active facet joint inflammation. No evidence of arthropathy in the shoulders. L5 pars defect with grade 2 spondylolisthesis and associated degenerative change at the lumbosacral junction[19]”.
[19] AD4 p 436.
Left shoulder:
(a) 13 July 2018 MRI left shoulder – performed by Dr Atlas at Bankstown Lidcombe Medical Imaging referred by Dr Lim[20]. The findings included a partial thickness articular surface tear of the supraspinatus involving most of the tendon, mild acromioclavicular arthrosis and a small subacromial-subdeltoid bursal effusion.
(b) 25 January 2021 MRI left shoulder – North Coast Radiology. This scan was performed at the request of Dr Soo. The radiologist concluded there was mild left rotator cuff tendinopathy but no tear, mild subacromial bursitis and mild osteoarthritis of the left AC joint[21].
(c) 25 November 2021 MRI left shoulder – Alfred Imaging.
[20] AD4 p 71.
[21] AD4 p 438.
Right shoulder:
(a) 16 December 2016 – ultrasound performed by Dr Stephen Mackie, Bankstown Imaging Centre at the request of Dr Malek. The report refers to a clinical history “? Supraspinatus tendonosis”. A finding was made of a 4 x 2mm partial thickness tear of the supraspinatus tendon anteriorly with thickening of the subacromial bursa at 2mm and bursal bunching and impingement on dynamic assessment. It was noted that Ms Malek had an inability to lift the shoulder over 90A°[22].
(b) 10 January 2019 – MRI By Dr Jeff Sacks, Bankstown Lidcombe Medical Imaging, revealed Supraspinatus and infraspinatus tendinosis with no rotator cuff tear evident and degenerative change at the acromioclavicular joint[23].
Pre-accident medical records
Restwell Street Medical Centre
[22] AD3 p 159.
[23] AD4 p 245.
The Restwell Street Medical Centre, Bankstown, is where Ms Malek’s husband Dr Assad Malek practices. The progress notes from this centre that are available to the Panel are in the insurer’s bundle of documents[24], but they are missing each even numbered page. The Panel brought this to the parties’ attention and requested that the insurer file the full clinical notes, however this has not been done. Nonetheless the Panel is satisfied that it has sufficient information to proceed with the review.
[24] AD3 pp 96- 105.
On 8 September 2017[25] Dr El Azzi notes a result of the recent MRI of the lumbar spine and records that Ms Malek was getting left leg pain at times through the night, mostly in the L5 distribution, she had normal gait, but it stopped her from gardening. It is stated “nil reg pain medications”. A referral was given to Dr McKechnie.
[25] This date does not appear in the entry in the progress notes on AD3 p 104 but there is reference in that entry to Dr El Azzi giving a referral to Dr McKechnie, and the referral is dated 8 September 2017- see AD3 p 131.
On 6 October 2017 Dr El Azzi recorded she “has booked plane ticket for next Friday is afraid travelling will exacerbate lower back pain currently[26]”.
[26] AD3 p104.
There is no entry about the car accident but that may or may not be explained by the fact that the page numbered 18 by Restwell Street Medical Centre is not included in the records and so page 17[27] ends with an entry on 6 October 2017 and page 19 starts with an entry on page 4 July 2018.
Dr Jeffrey Brennan
[27] See bottom right-hand corner of the progress notes where the Restwell Street Medical Centre has numbered the pages, as noted the available records are for only the odd numbered pages.
Dr Brennan, neurosurgeon, reported to Dr Malek on 11 April 2014[28]. Dr Brennan recorded a history of Ms Malek experiencing back pain on and off over the years but over the last year she had some pain spreading down into her left leg and when severe to the calf and ankle, which he said had the flavour of L5 radiculopathy. On examination he said there was no hard findings of radiculopathy and straight leg raise was unremarkable and she had a good range of motion in her back without pain or discomfort. Dr Brennan reviewed the x-ray of 2005 which he stated showed longstanding pars defects at L5 and a Grade I, bordering on II, isthmic spondylolisthesis. He said recent x-rays had change due to further progression of loss of disc height due to degeneration in the L5/S1. He also reviewed the MRI scans which showed a combination of the pars defect, Grade II isthmic spondylolisthesis and the progressive loss of the L5/S1 disc and bilateral L5/S1 nerve root exit foraminal stenosis. He found the beginnings of left L5 nerve root compression which he said was consistent with her symptoms.
[28] AD3 p 233.
Dr Brennan advised that in the future it was likely that Ms Malek’s leg pain would get worse and at some stage she is more likely than not will need a surgical reconstruction via a L5/S1 fusion. He said this is because the slip and disc height collapse have already got to the point where these is incipient nerve root compression. However, at that time he did not recommend surgery.
Dr Simon McKechnie
On 8 September 2017 Ms Malek was referred to Dr McKechnie[29]. Dr McKechnie reported on 19 October 2017 that Ms Malek had an 18-year history of chronic back and intermittent left leg pain following a fall after moving to a new house[30]. Her symptoms had gradually worsened. She did not have any right sided radicular leg pain. The doctor found on examination minimal left lower lumbar tenderness and no obvious neurological deficits in the lower limbs. He referred to an MRI scan showing Grade 2 L5/S1 spondylolisthesis due to L5 pars defects and a broad-based disc protrusion causing moderate to severe foraminal stenosis, worse on the left side with left L5 nerve root compression. The doctor set out his recommendations for treatment and said in the years to come she may require L5/S1 decompression and pedicle screw fusion.
[29] AD3 p131.
[30] AD3 p133. Identical copies of this report appear at AD3 pp 95 and 393 but it is dated 24 May 2019, it is likely that is the date that copy was printed.
No complaint of neck pain appears in any of the available pre-accident records. In relation to the right shoulder, again, the incomplete copy of the progress notes makes it difficult ascertain the onset of right shoulder issues. However, as noted, an ultrasound was performed on the right shoulder on 16 December 2016.
Post-accident records
Workers Doctors medical practice records
Dr Lim and various other GPs, physiotherapists, and specialists such as
Dr Soo, Dr Singh and Dr Khong consult in the Workers Doctors practice. Progress notes from that practice date from 23 November 2017, which is one month after the motor vehicle accident. On that day Ms Malek was treated by Ryan Heuston physiotherapist. He refers to symptoms in the cervical spine, left shoulder and upper arm and low back[31]. On the same day Ms Malek saw Dr Lim who took a history of “headaches, neck pain and stiffness, radiating to bilateral shoulders, upper back pain, constant and aggravated back pain, radiating to the L) hip and L) leg, pins and needles in L) feet, trouble sleeping, anxious and cautious to drive[32]”. He diagnosed the presence of a cervical strain, left shoulder injury, thoracic spine strain and lumbar spine radiculopathy and post-traumatic stress disorder (PTSD).[31] AD4 p 129.
[32] AD4 p 131 and in report at p 53.
On 27 November 2017 Mr Heuston issued an Allied Health Recovery Request with a diagnosis “WAD; cervical strain with L) arm referred pain; lumbar strain”[33]. WAD means whiplash associated disorder.
[33] AD4 p360.
On 15 January 2018 Dr Lim issued a referral for MRI cervical and lumbar scans noting
Ms Malek had neck and back pain affecting her work and back pain with radiculopathy[34]. Dr Lim issued a report to the insurer on that day in similar terms to his certificate dated 23 November 2017[35].[34] AD4 p 339.
[35] AD4 pp344-345.
On 31 January 2018 Mr Heuston noted that Ms Malek was “feeling quite tight and tender in the hips. No concerns with neck and back stretches[36]”.
[36] AD4 p 135.
On 12 April 2018 Dr Lim issued a referral to Dr Hsu noting Ms Malek’s “neck and back pain affecting her work. Back pain with radiculopathy. C6 nerve root impacted. L5 nerve root impacted”[37].
[37] AD4 p 318.
On 8 May 2018 Dr Hsu reported to Dr Lim that Ms Malek demonstrates significant C5/6 disc herniation and the lumbar spine demonstrates significant L5/S1 pathology. He arranged for Ms Malek to undergo a cervical spine injection[38]. In a report of the same day the doctor records the history that since the motor vehicle accident she has been experiencing significant neck and back symptoms[39].
[38] AD4 p 274.
[39] AD4 pp 49 and 275.
On 27 June 2018 Dr Lim issued a referral for a left shoulder MRI noting that Ms Malek had pain of concern[40].
[40] AD4 p 297.
On 12 November 2018 Dr Lim issued a referral to Dr Bhisham Singh noting Ms Malek “has left shoulder pain of concern and neck pain deteriorating[41]”.
[41] AD4 p 255.
On 14 January 2019 Dr Lim issued a referral to Dr Soo noting Ms Malek “has right shoulder tendinosis of concern[42]”.
[42] AD4 p 243.
On 24 January 2019 Dr Bhisham Singh, orthopaedic surgeon, saw Ms Malek at Dr Lim’s practice who noted Ms Malek had seen Dr Brian Hsu who had recommended cervical and lumbar surgery[43]. He reported to Dr Lim on 28 February 2019 that the request for surgery had not been approved[44].
[43] AD4 pp 67 and 145.
[44] AD4 p 222.
On 29 January 2019 Dr Soo saw Ms Malek at Dr Lim’s practice and records in the progress notes and his report of the same date[45] that immediately after the car accident Ms Malek says she had pain to her neck and lower back and over the past few months she had noticed weakness and tingling to her left hand as well as heaviness and pain to both shoulders. He notes that Dr Singh had advised Ms Malek that the weakness in her arms was likely due to cervical disc problems[46]. Dr Soo examined her shoulders and records his clinical findings he noted an MRI scan of the right shoulder showed rotator cuff tendinopathy with no tear and no bursitis and the MRI of the left shoulder showed partial thickness supraspinatus tendon with retraction. He recommended physiotherapy treatment[47].
[45] AD4 pp 47 and 238.
[46] AD4 p 145
[47] AD4 p 146.
On 25 October 2019 Dr Lim in a progress note entry requested diagnostic imaging for an MRI “L) hip- ? bursitis”[48]. The MRI scan was undertaken on 11 November 2019 by
Dr Moharami, Bankstown Lidcombe Medical IMG, the report is summarised earlier in these reasons. On 25 October 2019 Dr Lim issued a referral to Dr Khong in relation to Ms Malek’s “ongoing neck stiffness with cord signs[49]”.[48] AD4 p 174.
[49] AD4 pp 46 and 216.
On 22 November 2019 Dr Lim issued a referral to Dr Soo stating “Herewith Mrs Laura Malek who has a left labral hip tear of concern”[50].
[50] AD 4 p 196.
On 22 November 2019 Dr Khong, neurosurgeon, recorded in the progress notes that he had examined Ms Malek. He took a history about the motor accident and found she had a normal tandem gait and was able to walk on her heels and toes normally. Her upper and lower limbs had normal tone bilaterally and 5/5 power in all her muscle groups. No pain was found on internal rotation of the hips bilaterally. Dr Khong considered her neck pain and left arm pain was a direct result of the car accident which he said may have caused an exacerbation of pre-existing degenerative changes. He also noted that her previous lower back pain had been much worse since the accident[51]. He provided a report of the same date[52].
[51] AD4 pp 174-175.
[52] AD4 p 206.
Dr Khong also provided report dated 2 January 2021[53], 3 March 2021[54], 7 May 2021[55], 2 July 2021[56], 27 August 2021[57] and 20 October 2021[58]. In the earlier of these reports, he records Ms Malek’s complaints of back pain and left leg numbness, which he states: “is almost certainly arising from the L5/S1 isthmic spondylolisthesis and left L5 compression”. The doctor also noted ongoing neck and left shoulder pain. Dr Khong arranged for further MRI scanning and a bone scan to be undertaken. He states that the MRI again demonstrates a C5/6 disc bulge which is moderately hot on the bone scan[59]. In his most recent report, Dr Khong advises that Ms Malek continues to complain of left sided neck and arm pain and that her shoulder pain is also getting worse. He said they are waiting approval for a C5/6 anterior cervical discectomy and fusion and her back pain is persistent and he is awaiting approval for an L5/S1 fusion[60]. Dr Khong does not explicitly deal with causation, but he does refer to a history that prior to the motor accident she had some very mild back and leg pain[61].
Dr John Bosanquet
[53] AD4 p 16.
[54] AD4 p 13.
[55] AD4 p 432.
[56] AD4 p 429.
[57] AD4 p 425.
[58] AD4 p 423.
[59] AD4 p 15.
[60] AD4 p 425.
[61] AD4 p 424.
Dr Bosanquet, orthopaedic surgeon, provided medico-legal reports to the insurer’s solicitors dated 21 February 2019[62] and 28 November 2019[63]. He took a history that after the motor accident she saw another GP in Dr Malek’s practice who prescribed physiotherapy. She also saw a psychologist and was prescribed sleeping tablets and Panadeine Forte and she was also taking Panamax[64]. He took a history that Ms Malek had low back pain diagnosed eight years earlier and had spondylolisthesis and had seen Dr McKechnie[65], Dr So and Dr Singh[66]. He also noted she had a right shoulder ultrasound before the accident[67].
[62] AD3 p 23.
[63] AD3 p 31.
[64] AD3 p 24.
[65] AD3 p 25.
[66] AD3 p 32.
[67] AD3 p 33.
Dr Bosanquet examined Ms Malek twice. In his more recent examination, shoulder abduction was to 90° and adduction to 30°on both sides. All other shoulder movements were more restricted on the left. He found there was no right shoulder injury in the motor accident, but it had a restricted range of movement. He accepted there was a left shoulder injury and deducted the range of movement in the right shoulder from the left to arrive at 1% WPI for the left shoulder. In relation to the cervical spine and lumbar spine, Dr Bosanquet assessed both at DRE II 5% impairment, but he attributed this in both regions to pre-existing degenerative changes and, therefore, he found impairment as a result of the motor accident to be 0%WPI in relation to both the cervical and lumbar spines[68].
Dr James Bodel
[68] AD3 p 38.
Dr Bodel, orthopaedic surgeon, provided a medico-legal report dated 9 August 2019 to
Ms Malek’s solicitors. He noted that she woke the day after the motor accident with pain in the neck, both shoulders and the back. She later developed radiating pain down the arms and down the left leg. Dr Bodel states that she did not formally seek medical treatment for two months and then she consulted Dr Lim. Dr Bodel notes that she has declined Dr Soo’s recommendation for surgery at C5/6.Dr Bodel also records that Dr McKechnie had previously discussed performing an L5/S1 decompression and fusion if she had recurrence of pain, noting she had a Grade 2 spondylolisthesis at L5/S1. However, Dr Bodel appears to have accepted Ms Malek’s explanation that the back pain started spontaneously 10 years before and she was untroubled by her prior back pain until the motor vehicle accident. The Panel finds that Dr Bodel was not aware of the full prior history of right shoulder and low back problems as he does not refer to all of the pre-existing medical evidence.
In his examination findings, Dr Bodel found no definite evidence of nerve root irritability in the lower limbs, and he found the reflexes were present and equal. He found no objective sign of sensory loss in a dermatomal distribution and no clinical signs of radiculopathy but non-verifiable radicular complaints. Dr Bodel also reported shoulder impingement with flexion to 140°, abduction 120° with the right side equalling the left. He found asymmetry of movement in the cervical spine, but no radiculopathy and non-verifiable radicular complaints and assessed impairment in the cervical and lumbar spines both at DRE II with 5%WPI for each. He found 6% WPI for each upper extremity. The combined WPI was 20%[69].
[69] AD4 pp 31-32.
Medical Assessor Truskett’s Medical Assessment Certificate 29 March 2021
The injuries referred for assessment to Medical Assessor Truskett were described as:
(a) left arm evidence of bursitis and tendinitis.
(b) right arm significant tendinitis and bursitis.
(c) cervical spine- central disc at the C4/C5 and C5/C6 levels. Moderate disc osteophytes complex. Mild to moderate bilateral neuro foraminal stenosis with compression of the excess exiting C6 nerve root.
(d) lumbar spine- aggravation of Grade 2 spondylolisthesis at the L5/S1 level with the disc space completely obliterated.
(e) left hip- partial thickness tear of the insertion of the gluteus medius with features of gluteus minimis and medius tendinosis at the origin (insertion) and a labral tear extending from the anterosuperior to superior region of the hip joint with the presence of para-labial cyst.
Medical Assessor Truskett found that the following injuries caused by the motor vehicle accident gave rise to a permanent impairment which is greater than 10%. He found a combined impairment of 11% for:
(a) cervical spine C6 disc rupture- 5% WPI;
(b) lumbar spine soft tissue injury- 3% WPI, and
(c) left shoulder soft tissue injury- 3% WPI.
He found that the alleged injuries to the left hip and right shoulder were not caused by the accident.
He recorded a history of the motor vehicle accident as is confirmed by Ms Malek. He correctly understood that it was a self-actuating headrest that went off in the accident not the airbags deployed. He recorded Ms Malek’s account of her persistent symptoms of 8/10 to 10/10 in the left shoulder, which is worse in the morning, wakes from sleeping but is relieved by medication. In the right shoulder there were similar pain of the severity. There was neck pain radiating over both shoulders present all the time and 9/10 in severity. It was even worse at night. There was lumbar pain present all the time which was 10/10 and that she described a radicular distribution. There was pain on the lateral side of the left hip which radiated in the groin. This was worse when walking.
Medical Assessor Truskett noted that all the symptoms were significantly worse after the accident and thus it reduced exercise level, and her ability to conduct her personal care to housework. Since the accident she had been employing a gardener and a housekeeper. She could only drive for 10 minutes. Ms Malek advised Medical Assessor Truskett that “she did have some back discomfort for three years but no associated lower limb pain. She would score this back pain that was intermittent as 4/10 and caused her no limitation[70]”.
[70] AD3 p 378.
Medical Assessor Truskett sets out his clinical examination findings, which have been read by the Panel, however, it is not necessary that they be summarised in full given the Panel’s assessment is a fresh assessment. The Panel notes that Medical Assessor Truskett recorded that Ms Malek described reduction of sensation of her left arm to 6/10 which extended to her chest and the side of her face. The Assessor stated that he found “no anatomical explanation for this[71]”. He found her reflexes are brisk and symmetrical. The range of shoulder movements which Medical Assessor Truskett recorded was very like that recorded in the Panel’s examination. Both hips were moderately restricted in movement. Straight leg raising was 80° on the right and 60° on the left[72] which was markedly better than found in the Panel’s examination. The back was stiff but Medical Assessor Truskett found there was no dysmetria and she was able to walk on her toes and heels but was unable to squat because of left hip pain[73].
[71] AD3 p 380
[72] AD3 p 380.
[73] AD3 p 380.
Medical Assessor Truskett reviewed the documentation from before and after the accident, including the various radiological investigations. He concluded in his findings about causation that the mechanism of injury was unlikely to have caused injury to the right shoulder, noting that Dr Lim had no mention of a right shoulder injury. He also noted that hip pain was not mentioned until November 2019. Medical Assessor Truskett accordingly found that there was no causal connection with the motor vehicle accident and injuries alleged to the right shoulder and left hip.
In assessing the lumbar spine, he found that Ms Malek had longstanding back pain with sciatic radiation and congenital spondylolisthesis, however he found that it was possible that the motor accident did aggravate this condition. In assessing permanent impairment for the lumbar spine, he assigned DRE II, being 5% WPI due to non-verifiable radicular complaint and deducted 50% for the symptomatic pre-existing lumbar condition resulting in 3%WPI[74].
[74] AD3 p 388.
In relation to the cervical spine, Medical Assessor Truskett assigned DRE II being 5%WPI as he said there was evidence of dysmetria, but no evidence of radiculopathy or bony injury[75].
[75] AD3 p 388.
For the left shoulder, Medical Assessor Truskett expressed the assessment was difficult due to a voluntary lack of movement in the left shoulder, but he stated he felt an injury had occurred with a persisting impairment. He referenced the last measurement by Dr Soo on 29 January 2019 and found 3% WPI[76].
[76] AD3 p 388.
RE-EXAMINATION
As noted in the Direction to the parties, the Panel formed the view that in order to determine the matter a re-examination of Ms Malek was necessary to determine causation of all of the alleged injuries and the permanent impairment of those injuries the Panel determines were caused by the motor accident. Accordingly, on 14 December 2021 Medical Assessors Stubbs and Moloney conducted the examination.
The following examination report has been prepared by the whole Panel, taking into account the clinical findings of the Panel’s Medical Assessors, and the history taken from Ms Malek in the examination:
“Who attended the assessment:
i.Ms Malek attended alone. She had driven from Longueville to South Maroubra by herself. She found the car journey long and tiring.
History
ii.Ms Malek is 57 years old with three adult children. She is employed as a medical receptionist in her husband’s general practice. Following the accident her hours had been reduced from full-time to one day a week. Recently she moved from a two-storey home in Strathfield to a single-story home in Longueville. One daughter remains in the home.
iii.She was a front seat passenger on 22 October 2017. Her husband was driving the Mercedes-Benz C 200 a 2007 model. The vehicle stationery stationary in a line of four cars. They were hit from behind. There was no secondary impact. Neither police nor ambulance attended. The airbags did not deploy, a spring-loaded active head restraint was triggered on the passenger side. Ms Malek confirmed the history that she gave to Medical Assessor Truskett that this was a programmed response in the vehicle as a safety feature. The car was driven home and later written off. She saw a general practitioner at her husband’s practice and was given paracetamol/codeine and physiotherapy, she saw a psychologist.
iv.Ms Malek submitted a Personal Injury Claim Form dated 23 November 2017 which confirms complaints of neck pain and stiffness, right and left shoulder pain, back pain, left leg pain[77]. It contains a drawing which has crosshatching down the cervical spine between the shoulder blades and both scapular is without spread into either arm. Crosshatching is made over both sides of the lower spine, spreading into the left buttock down the outside of the left leg and into the back of the calf and foot and the front of the calf[78]. Ms Malek lists she is having physiotherapy with Workers Doctors.
[77] AD3 p10.
[78] AD3 p17.
v.Dr Eric Lim, general practitioner from the Workers Doctors practice, provided a medical certificate dated 23 November 2017 which includes a similar diagram[79]. Ms Malek commenced the course of physiotherapy and saw a clinical psychologist. The medical certificate is four weeks after the motor vehicle accident.
[79] AD3 p20.
Pre-accident employment, education, and work experience:
vi.Ms Malek has been a practice manager for over 30 years in Dr Malek’s medical practice. Prior to this after completing year 12, she obtained qualifications in computer programming and worked for several years in such employment.
History of symptoms and treatment following the motor accident
vii.She says she has cervical spine pain present 90% of the time, worse on the left. She has restricted extension and painful rotation to the right. She has symptoms radiating to her left arm and paraesthesia in the tips of the fingers. There is bilateral shoulder pain and restricted movement.
viii.There is continuous low back pain without pain free days. Prior to the motor vehicle accident “she would have days when she was pain free.”
ix.She shops and drives but requires assistance with housework up to four hours every two weeks particularly in the wet areas.
x.Ms Malek has a history of having two MRI scans of her lumbar spine prior to the motor vehicle accident and the referral to Dr McKechnie and his comments were put to Mrs Malek. She had not mentioned this in her history, so too the findings of an ultrasound having been performed on her right shoulder. She said that the pain prior to the accident really troubled her. She only took paracetamol/codeine and an NSAID for the pain prior to the accident. She agreed with the Panel this was the same medication she was taking now to manage pain and she not taken up the suggestion made by Dr McKechnie of Lyrica, nor did she require opiate medications. Mrs Malek was asked why the only record for the accident was from Dr Eric Lim. She was asked why she was not referred to Dr McKechnie but to a doctor some distance away. She replied that the solicitor referred her to Dr Lim, and she continued to have her physiotherapy at that practice.
xi.She went on to say that the onset of pain in all areas was immediate and that she had made a mistake in not asking for an ambulance called and not attending the local hospital for her injuries. She saw Dr Lim because she had neck and left arm pain.
Details of any relevant injuries or conditions sustained since the motor accident
xii.no new injuries have occurred
Current and proposed treatment
xiii.none
Clinical Examination:
General presentation:
xiv.Mrs Malek attended alone. She is a middle-aged lady who was carefully groomed. She was wearing slip on slippers and did not wear stockings. These slippers are for bunions. She had a light Jackie Onassis type jacket over a skirt. As there was no accompanying person/chaperone available the Panel chose to do the clinical examination without undressing her. She has normal gait pattern of toe and heel toe walking, though unsteadily. She can squat to about 60° of hip and knee flexion but not fully. Single leg stance is painful on the left side but not the right. She cannot hop. She was able to get on and off the examination table without assistance.
Cervical spine – upper limbs:
xv.Ms Malek has a normal cervical posture. There is some mid thoracic kyphosis (common for her age), she requires a little more extension than neutral for a balanced straight-ahead position. She seemed to sit and move comfortably when giving her history. There is an asymmetric range of motion with rotation to the left evoking pain response at one-third range on the left as against two thirds range of the right. Flexion-extension was well-balanced and equal. Side bending also elicited pain response on the left trapezius and left cervical musculature. Nerve root compression tests gave contradictory responses. Sperling’s manoeuvre which seeks to compress the nerve roots causes pain, side bending right causes pain from traction. The reciprocal manoeuvre, side bending left, relaxing the nerve root, rotation, and flexion which would free intervertebral foramina and relax the nerve root caused the same pain. Pain was thus caused by both provocation and relief manoeuvres and so is an unreliable clinical finding.
xvi.Neurological examination of the upper limbs shows normal reflexes, normal girth and her right arm equals her left and there is a 1 cm greater girth on the dominant right forearm. Light touch sensation was normal in both upper limbs. There was disturbed sensory perception, what one might call allodynia in the whole of arm and forearm and radial and ulnar distributions. It spread to all fingers and oddly not the thumb. Pain was non-dermatomal. Both hands and wrists and fingers have normal range of movement without any signs of peripheral nerve compression. There was an unusual prominence of the distal radius and bony thickening over the dorsum of the wrist. This is called “bony bossing” and is a feature of degenerative osteoarthritis. It is also seen in the foot. Oddly, it is confined to the right side only.
xvii.Palpation of the shoulder girdles reveals presence of hard tender lumps at the acromioclavicular joints on both sides. The shoulder girdle musculature is tender on the left. The shoulder girdle musculature is not prominently developed but appropriate for her sedentary habits. The best active range of motion of the shoulders and is recorded in the table below. It was performed three times and measured with a goniometer. The range was mildly variable on the right and very variable on the left, leading to the view that the results were not reliable.
best-of-three goniometer measurements for active range of motion
Right
Left
Flexion
90°
50°
Extension
40°
30°
Abduction
80°
40°
Adduction
30°
20°
External rotation
90°
30°
Internal rotation
70°
40°
Elevation (supine)
120°
Not attempted
xviii.Elevation is a combination movement flexion and abduction performed by and abducting the shoulder in the scapular plane which is normally about 30° internally rotated to the standard sagittal plane movement. Elevation can be performed to supine by placing the hands behind the head was lying on the back. Lying supine changes the mechanical loads across the shoulder by 90°, it effectively eliminates the weight of the arm and any problems that might cause to the rotator cuff from weakness e.g., a large rotator cuff tear or impingement. The Panel preferred this as an alternative to eliciting impingement signs as Ms Malek had to drive herself home.
xix.Ms Malek reports needing assistance from her daughter for personal activities, such hair washing.
Lumbar and thoracic spine and lower limbs:
xx.Ms Malek could bend forward with her fingertips to her knees with the same degree of restriction in extension. Side bending was right equals left, but rotation in both directions was uncomfortable though equal. She was unable to sustain straight leg lowering on either side. Her best active straight leg raise was 30° on the left side, but only 20° on the right side, this causes pain. Traction signs were negative and when sitting on the side of the couch and bending forward she had full knee extension on both sides. There is no evidence of nerve irritation. There was complaint of pain of burning character over the left greater trochanter spreading down the front and side thigh, but not beyond the knee. There was tingling complained of in all the toes in both feet, but no other abnormal sensations in the lower limb. Clinical power was 5/5 in all groups. The ankle and knee jerks were brisk and symmetrical. The girth of the lower limbs was equal, the right thigh measured 39.5 cm compared to the left, and the calves were equal between the sides. The pain is non-radicular and best explained as arising in the hip abductor musculature. Provocative tests on the gluteus Medius and minimums tendons are positive. Her painful limitation crossbody adduction and extension, she is unable to sustain 5/5 motor strength, she cannot effectively perform single leg stand. The diagnosis is of degeneration of the hip abductor mechanism commonly called trochanteric bursitis.
Comments of consistency.
xxi.Ms Malek did not volunteer the history of undergoing the previous lumbar spine MRIs and right shoulder ultrasound. She was asked about this. She reported that that pain that she had beforehand was very minor, whereas the pain after motor vehicle accident was immediate and severe. There were similar issues concerning some of the clinical tests, for instance, the discrepancy between provocative and relieving tests on the cervical spine and the difference in straight leg raising and the slump test and the significant difference between the relative freedom of movement of both arms in general examination and the restricted range of motion in formal testing. Some of these details are quite technical and she was a loss to understand them. The Panel gives her the benefit of doubt on these matters, putting her response down to apprehension.
xxii.Ms Malek was asked about the inconsistency in her shoulder movements, particularly the left, as the formal testing became unreliable due to the variation of her test results. Also, her shoulder movement when not being formally tested was at odds with the results on formal testing as she did not seem as restricted. She replied that “she was frightened she would hurt her shoulders when she was being tested.”
SUBMISSIONS
The insurer has provided submissions dated 12 November 2020[80], 28 April 2021[81], 22 October 2021[82] and 15 November 2021[83].
[80] AD3 p 21.
[81] AD3 p 374.
[82] AD5.
[83] AD6.
Ms Malek relies on submissions dated 9 July 2021[84], 21 October 2021[85] and 18 November 2021[86].
[84] AD4 p 421.
[85] AD4 p 419.
[86] AD7.
The insurer makes the following submissions:
a. the Restwell Street Medical Centre records contain no mention of the motor accident or details as to who Ms Malek consulted after the accident. However, the Panel has noted above the records filed by the insurer are incomplete.
b. the initial attendance on Dr Lim on 23 November 2017 does not refer to any left hip pain from the motor accident.
c. Ms Malek has a long history of low back problems as evidenced in the records from the Restwell Street Medical Centre. It draws attention to the report from Dr Brennan, neurosurgeon, dated 11 April 2014 who refers to longstanding pars defect at L5 and spondylolisthesis since at least 2005. It also draws attention to the report of Dr McKechnie dated 19 October 2017, three days before the motor accident, who opined that Ms Malek would eventually need surgery to her back due to these longstanding issues.
d. the post- accident MRI scans do not differ greatly from those undertaken on 7 March 2014 and 1 September 2017 and it is submitted any changes would be due to the degenerative condition progressing and not due to the motor accident. In its submissions dated 28 April 2021, the insurer more particularly submits that the pre-accident MRI dated 7 March 2014 revealed a spondylolisthesis of 13mm and the post- accident MRI dated 12 February 2021 showed it measured 9mm.[87] It submits that Medical Assessor Truskett was inaccurate to have suggested there was a worsening of the pre-existing condition that could be attributed to the motor accident, when these measurements show an improvement from 13mm to 9mm. The Panel will comment on this submission later about these claims.
[87] AD3 p 374
e. the insurer incorrectly refers to the “Motor Accident Guidelines version 7”[88]. Those guidelines relate to accidents to which the Motor Accidents Injuries Act 2017 apply, whereas this is a motor accident before 1 December 2017 to which the MAC Act applies and the relevant guideline is the Motor Accident Permanent Impairment Guidelines- Version 1, effective from 1 June 2018. However, the wording cited by the insurer in its submissions is the same as in the relevant Guidelines in Chapter 1.31, which states:
“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.”
f. the insurer submits that if Ms Malek met the Lumbosacral DRE category II for WPI in 2014 and also does now, then the result would be a finding of 0% WPI, as the pre-existing 5% WPI should be subtracted from the present 5% WPI. The insurer submits that the guidelines do not permit Medical Assessor Truskett to have apportioned the permanent impairment assessment of Ms Malek by reducing the current impairment by 50%.
g. the insurer states that in relation to the right shoulder in December 2016
Ms Malek underwent an ultrasound which showed a partial thickness tear of the supraspinatus tendon.h. in relation to the cervical spine, the insurer states it relies upon the opinion of Dr Bosanquet that the changes in the cervical spine, lumbar spine and shoulders are degenerative, which pre-dated the motor accident.
i. in the submissions dated 28 April 2021, prepared for the review application, the insurer only deals with the lumbar spine and left shoulder in the context of Medical Assessor Truskett’s certificate. In relation to the left shoulder, the insurer submits that Medical Assessor Truskett having found inconsistency, did not reveal evidence of testing the active range of motion with three consistent repetitions and he selectively used the evidence, being from Dr Soo to assess the range of motion in the left shoulder[89].
j. in the insurer’s submissions dated 15 November 2021, it is argued that the Panel should not be persuaded one way or the other by the opinions expressed in the more recent reports from Dr Khong. The insurer submits that Dr Khong has an inaccurate and incomplete medical history. It gives the example that Dr Khong stated before the motor accident Ms Malek suffered from very mild occasional back pain. The insurer asserts this is incorrect and the picture is of chronic back pain for two decades with identifiable pathology on radiological scans taken one month before the accident. The insurer submits that Dr Khong’s reports can carry no forensic weight. It also draws attention to Dr McKechnie’s opinion before the accident that Ms Malek in the future may be a candidate for surgery. It argues this was for the exact same pathology that is present post-accident[90].
[88] AD3 pp 374- 375.
[89] AD3 p 375.
[90] AD6.
Ms Malek’s solicitors have provided submissions dated 9 July 2021[91], 22 October 2021[92] and 18 November 2021[93]. The key points made are:
a. the submissions of 9 July 2021 are mainly directed at whether Medical Assessor Truskett erred in relation to his assessment of Ms Malek’s left shoulder. Like the insurer’s submissions, the wrong version of the Guidelines is cited. While the Panel has considered these submissions, given a Panel’s review is a fresh assessment this aspect of the submissions does not provide assistance to the Panel. These submissions also refer to Medical Assessor Truskett’s assessment of the lumbar spine and draws attention to the insurer’s argument that “a pars defect abnormality would gradually worsen as part of the natural progression within this period”. Ms Malek’s submission is that this argument has been made without medical opinion to substantiate it.
b. the submissions dated 22 October 2021 were made in support of additional documents being admitted for consideration by the Panel. Essentially it was argued that the material in question was from a treating practitioner, Dr Khong, and provides an update of Ms Malek’s condition. The Panel in its direction issued on 4 November 2021 decided to accept such material. The reason for this was that the radiological investigations and Dr Khong’s reports update those previously available. However, both parties were given the opportunity to make submissions about this material.
c. Ms Malek’s submissions dated 18 November 2021 are in response to those made by the insurer in relation to the additional documentation. It is argued that the opinions of Dr Khong should carry weight because he has examined Ms Malek on five occasions. It is noted that Ms Malek disclosed to Dr Khong that her back pain pre-existed the accident.
d. Ms Malek argues that Dr McKechnie, before the accident, had recommended she try hydrotherapy / or Pilates, Lyrica or injections but the recommendation for surgery was only a possibility for the future. It is submitted that Ms Malek did not need surgery pre-accident and the recommendation now that she undergoes surgery arises as a direct consequence of the motor accident.
e. it is also submitted that the Panel must apply the Guidelines in relation to any deduction for pre-existing impairment and the Panel should not be satisfied that should be assessed as DRE II or above and that no deduction for pre-existing impairment should be made. These submissions relate to the lumbar spine.
[91] AD4 p 421.
[92] AD4 p 419.
[93] AD7.
The Panel in its first direction put the parties on notice that re-examination was necessary to determine causation of all of the alleged injuries and the permanent impairment of those injuries the Panel determines were caused by the motor accident. Neither party made submissions to challenge this approach.
PANEL’S DETERMINATION
In the Guidelines at 1.5 to 1.7 causation of injury is addressed, noting that the assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. In addition, various Supreme Court and Court of Appeal cases have discussed the principles to apply when determining issues of causation in motor accident cases. Those cases warn that treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation can lead to error as the question to be answered is whether the motor accident materially contributed to the injury to the body part in question. For instance, at [31] in Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 the Court stated:
“One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders.”
The Courts have also considered causation issues in the situation where an injury sustained in a motor accident has subsequently materially contributed to an injury to another body part. In AAI Ltd Trading as GIO as agent for Nominal Defendant v McGiffen[94] the Court of Appeal held at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
Cervical Spine
[94] [2016] NSWCA 229, McGiffen.
Applying the principles set out in the Guidelines and in Bugat, the Panel finds it is more likely than not that Ms Malek did sustain an injury to her cervical spine in the motor accident. Notwithstanding there are no immediate post- accident medical records available, the Panel is satisfied, having questioned Ms Malek, that her history should be accepted that she did suffer from symptoms in her cervical spine and saw a general practitioner at her husband’s practice and was given paracetamol/codeine and prescribed physiotherapy. Her claim form and the records from Dr Lim confirm on 23 November 2017, approximately one month after the motor accident, that she complained of cervical symptoms. For the reasons given below, the Panel finds the injury to the cervical spine was more likely than not a soft tissue injury.
There are two imaging studies that the medical members of the Panel were able to see, compare and contrast. One six months after the motor vehicle accident, the other 42 months after the motor vehicle accident. The Panel finds there is no difference in the findings on the films. Both show a generalised loss of signal from the nucleus of all the intervertebral discs. At the C5/6 level the changes are more pronounced and there is a slight angulation rather than a gradual curve. Posteriorly there is a material prominence that is dark on T1 and T2 weighted images. This is a degenerative disc bulge. The darkness on both image sequences indicates that the cause is a mixture of osteophyte formation and bulging of the posterior longitudinal ligament and annulus of the intervertebral disc.
In the Panel’s clinical experience, this appearance is very typical for degenerative spondylosis. The fact that there has been no change on these scans from 6 to 42 months post- accident leads the Panel to conclude that there has been no change in the natural history of the cervical spondylosis occurring post-accident.
In addition, the Panel notes that the radiologist reporting on the scan dated 10 January 2019 stated the findings were similar to that of April 2018[95].
[95] AD4 pp 68-69.
The Panel’s clinical examination did not reveal radicular signs at what would be the C5 nerve root disc level. The imaging studies show there is no instability.
The Panel finds that Ms Malek sustained a soft tissue injury to her cervical spine caused by the motor vehicle accident. Asymmetry of movement and radiation of pain into the left arm is noted. Therefore, as per Table 7, page 27 of the Guidelines the assessment is DRE II – 5% WPI. The Panel notes this assessment of permanent impairment of DRE II was also made by Medical Assessor Truskett, Dr Bodel and Dr Bosanquet.
Dr Bosanquet alone attributed the whole of this impairment to pre-existing degenerative changes, however, the Panel finds he did not apply the Guidelines when making the deduction of 5% WPI, to arrive at 0% WPI as a result of the accident. Clause 1.31, page 10, of the Guidelines directs that if there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
Even though the Panel is of the view that Ms Malek had degenerative spondylosis present in her cervical spine at the time of the accident, there is no evidence that it was symptomatic. The Panel has carefully considered the available pre-accident records which reveal no objective, or any, evidence of pre-existing symptomatic permanent impairment. Accordingly, applying Chapter 1.31 of the Guidelines there is to be no deduction.
The Panel finds the permanent impairment of the cervical spine as a result of the injury caused by the motor accident is 5% WPI.
Lumbar spine
Ms Malek did not bring to the Panel’s examination the MRI scans undertaken on 7 March 2014 and 1 September 2017. However, it is apparent from the reports of those scans, which are in evidence, and the reports from Dr Brennan and Dr McKechnie that Ms Malek had been diagnosed for many years pre-accident with a L5/S1 spondylolisthesis due to L5 pars defects and a broad- based disc protrusion causing moderate to severe foraminal stenosis which was worse on the left side.
Dr Brennan compared x-rays of 2005 with the 2014 radiology and found further progression of loss of disc height due to degeneration in the L5/S1. He found the spondylolisthesis to be grade 2.
Dr McKechnie, just six days before the motor accident, made such findings together with left L5 nerve root compression.
The Panel finds that the post-accident MRIs and plain x-rays show no change. The slippage is about 33%, clinically grade 2. The Panel notes that the radiologists reporting on the MRI scans dated 3 April 2018 and 12 February 2021 found the spondylolisthesis was grade 2.
The Panel refers to the insurer’s submissions where it refers to different measurements of the slippage, quoting in 2014 it was 13mm and in 2021 it was 9mm. The Panel advises that such differences can be attributed to a lack of standard measurement systems, and it is of more significance that both Dr Brennan and Dr McKechnie and the radiologists on 1 September 2017 and 12 February 2021 have all classed the spondylolisthesis as grade 2.
The medical members of the Panel, applying their clinical experience, find that the post-accident MRIs show a stable situation. The junction between L5 and S1 consists of a dark linear replacement of the intervertebral disc T1 and T2-weighted images without any response in the adjacent bone marrow. The slip is stable. The clinical examination shows no signs of radiculopathy.
The Panel finds that the evidence is clear that the lumbar spondylolytic spondylolisthesis is not caused by the motor vehicle accident. The Panel finds there is no objective evidence that the accident has caused any substantive change in the natural history of the condition. The Panel notes there has been no change in analgesic requirements for the low back since the motor vehicle accident. As recorded at [63 j)] above, the medical members of the Panel asked Ms Malek about her medication usage pre and post-accident. She advised before the accident she only took paracetamol/codeine and an NSAID and she agreed this was the same medication she now takes. She confirmed she did not take up Dr McKechnie’s suggestion to try Lyrica, nor has she required opiate medications. However, the Panel has taken into account her history that the pain has been more severe post- accident.
On the balance of probabilities, the Panel finds that Ms Malek did sustain a soft tissue injury to her lumbar spine and with an exacerbation of her underlying symptomatic lumbar condition.
Assessing permanent impairment in relation to the lumbar spine, the Panel finds DRE II is the appropriate category as at the time of examination by the Panel there were non-verifiable radicular complaints. Applying Table 7 of the Guidelines, this equates to 5% WPI. The Panel notes that Dr Bodel also found non- verifiable radicular complaints and assigned DRE II, as did Medical Assessor Truskett and Dr Bosanquet.
The difference in outcome between the medical specialists relates to whether a deduction should be made for pre-existing impairment. Dr Bosanquet deducted 5% WPI without referring to the Guidelines. Dr Bodel, even though he was aware of earlier back pain, proceeded on the basis that Ms Malek was untroubled by back pain until the motor accident, which is not consistent with the evidence from Dr McKechnie.
At [66e)] above, the Panel set out Chapter 1.31 of the relevant Guidelines. It instructs that if there is objective evidence of a pre-existing symptomatic permanent impairment at the time of the accident, then its value must be calculated and subtracted from the current WPI value.
The Panel considers Dr McKechnie’s findings do provide objective evidence of the pre-existing symptomatic impairment at the time of the accident, given his findings were made on examination of Ms Malek on 16 October 2017, just six days before the motor accident on 22 October 2017.
Chapter 1.134 of the Guidelines deals with spondylolisthesis. It states:
“Spondylolysis and spondylolisthesis are conditions that are often asymptomatic and are present in 5–6% of the population. In assessing their relevance the degree of slip (anteroposterior translation) is a measure of the grade of spondylolisthesis and not in itself evidence of loss of structural integrity. To assess an injured person as having symptomatic spondylolysis or spondylolisthesis requires a clinical assessment as to the nature and pattern of the injury, the injured person’s symptoms and the medical assessor’s findings on clinical examination. Table 8 can be used to allocate spondylolysis or spondylolisthesis to categories I–V depending on the descriptor’s clinical findings in the appropriate DRE. The injured person’s DRE must fit the description of clinical findings described in Table 8.”
As noted previously, Dr McKechnie found Ms Malek was symptomatic with intermittent left leg pain and chronic back pain that had worsened over the years. He reviewed the MRI scan of 1 September 2017 and he stated it demonstrated a grade 2 L5/S1 spondylolisthesis. Based on Dr McKechnie’s findings the Panel assesses the pre-existing impairment at DRE II because Ms Malek had reported intermittent left leg pain, but on examination Dr McKechnie found no obvious deficits in the lower limbs. This means he did not find the presence of radiculopathy but there were non-verifiable radicular complaints. The Panel finds the pre-existing impairment at the time of the accident was 5% WPI. Deducting the same from the current impairment results in an assessment of 0% WPI.
Left hip
Medical Assessor Truskett found the alleged injury to the left hip was not caused by the motor accident. None of the parties’ submissions address this finding. However, as a review panel’s assessment is a fresh assessment it is appropriate that the Panel consider and form its own determination as to whether the left hip condition is causally related to the motor accident.
Dr Lim who examined Ms Malek one month after the accident did not diagnose a left hip injury. He did record back pain radiating to the left hip and leg. Mr Heuston physiotherapist also treated Ms Malek on 23 November 2017, and he did not refer to any left hip injury. On 31 January 2018 he did refer to Ms Malek feeling quite tight and tender in her hips.[96] However, in the context of Mr Heuston’s notes the Panel finds this is not evidence of injury to the hip but more likely than not on the balance of probabilities a response to the physiotherapy treatment being provided for her low back. In addition, the Panel having carefully considered all of his clinical entries, and that of Dr Lim, cannot find any other reference to the left hip until on 25 October 2019 when Dr Lim requested an MRI be undertaken for “L) hip-? bursitis”[97].
[96] AD4 p 135
[97] AD4 p 174.
The MRI was undertaken on 11 November 2019 and shows a partial thickness tear of the insertion of the gluteus minimus and a labral tear extending from the anterosuperior to superior region of the hip joint with the presence of a paralabral cyst.[98]
[98] AD4 p 73-74.
The medical members of the Panel advise that clinically this is a problem of the hip and abductor mechanism. Single leg stance, specifically walking or running requires the pelvis to be stabilised on the hip. From an evolutionary point of view the three gluteal muscles that are all posterior to the hip joint in climbing apes have the two smaller muscles, the gluteus medius and minimus migrate to the outside of the hip joint. This provides the ability to hold the pelvis balanced in a single leg stance but requires forces on the musculature of five to eight times body weight. In a sense we have traded our ability to climb vertically for more efficient bipedal walking. On the MRI studies there is suggestion of degenerative insertional failure the gluteus medius and minimus as insertions into the greater tuberosity of the left hip. Walking is becoming painful and limited. This is sometimes called “rotator cuff disease of the hip”. Another common term is trochanteric bursitis, the two often coexist and trochanteric bursitis can be an overuse problem rather than a solely degenerative one.
Additionally, the left hip MRI shows a sub acetabular cyst caused by fluid penetration through a detachment of the acetabular labrum. In the clinical experience of the medical members of the Panel this is a long-standing consequence of hip impingement, in turn a reflection of the difficulty of transitioning from a four-point crawling gait to a bipedal gait. This is a common incidental finding with increasing age. If, caused by injury it is due to forces that almost, but not quite, dislocate the hip and often features with high level sports injuries in the young and incremental degenerative changes in the old. Sub acetabular cysts are a late radiological manifestation. The medical members of the Panel find that the pathology evident on the MRI scan is not an injury one would see in a rear impact road traffic accident.
With the exception of side impacts, (trochanteric bursal injury) and front- end impacts with force is transmitted axially along the shaft of the femur just short of dislocation, (posterior labral detachment), the injury does not occur in rear impacts and if it does occur it is immediately disabling. The Panel finds that if these forces had been involved in the accident Ms Malek would not have been able to walk from the time of the accident.
The Panel is mindful of the principles in Bugat in relation to treating the absence of contemporaneous clinical records referring to an injury with caution. In Ms Malek’s case, there is a lack of contemporaneous complaint to Mr Heuston and Dr Lim, there also is the fact that they did not diagnose a left hip injury. Furthermore, the specialists Dr Singh and Dr Soo treated Ms Malek in early 2019 and they do not have a history of a hip injury. On 22 November 2019 after the MRI scan of the left hip was undertaken Dr Khong examined Ms Malek and he noted she had a normal tandem gait, was able to walk on her heels and toes normally, she had normal tone and power in her muscle groups in her lower limbs. Despite such a detailed examination, the Panel considers it is significant that Dr Khong in none of his reports finds a left hip injury.
Furthermore, Dr Bodel who provided the medico-legal report for Ms Malek did not find a left hip injury caused by the accident.
The Panel finds there is no evidence of a left injury having been caused by the motor accident. The Panel has explained above that it is more likely than not that the pathology in the left hip is due to degenerative changes and is not as a result of the motor accident. Therefore, the Panel finds the alleged injury to the left hip was not caused by the motor accident.
Right shoulder
Before the motor accident, Ms Malek underwent an ultrasound of her right shoulder performed on 16 December 2016 at the request of Dr Malek. The clinical history on the ultrasound report is “? supraspinatus tendinosis”. The radiologist recorded that Ms Malek had an inability to lift her shoulder over 90° in abduction [99]. A finding was made of a 4 x 2mm partial thickness tear of the supraspinatus tendon anteriorly with thickening of the subacromial bursa at 2mm and bursal bunching and impingement on dynamic assessment.
[99] AD3 p 159.
The Panel notes there was no mention of a right shoulder injury diagnosed by Dr Lim on 23 November 2017 nor were complaints made at that time to the physiotherapist, Mr Heuston. The first mention of right shoulder symptoms seems to be in the referral of Dr Lim to Dr Soo dated 14 January 2019 when he states that Ms Malek “has right shoulder tendinosis of concern”[100]. An MRI scan was performed on the right shoulder on 10 Janaury 2019 revealing supraspinatus and infraspinatus tendinosis with no rotator cuff tear evident and degenerative change of the acromioclavicular joint.[101]
[100] AD4 p 243
[101] AD4 p 245.
Dr Soo examined Ms Malek on 29 January 2019 and reported to Dr Lim[102]. He does not refer to a history of a right shoulder injury in the accident. He states:
“Nil hospitalisation necessary but she immediately had pain to her neck and lower back. However, over the last few months she had noticed weakness and tingling to her left hand as well as heaviness and pain to both shoulders.
…
Laura gets pain to both shoulders the left shoulder pain is located posteriorly and over the trapezius and anteriorly to the shoulder. The right shoulder pain is located more laterally. Both shoulders give her trouble on and off and is associated with weakness. She finds elevating her arm above her shoulder height is restricted and she gets pain reaching behind. She finds it difficult sleeping.”
[102] AD4 p 238.
The Panel notes this examination took place 15 months post-accident. Dr Soo records his clinical examination findings, and the MRI scan results, but he does not proffer an opinion in relation to causation. Dr Soo does not refer to the pre-accident ultrasound.
None of the other treating specialists refer to a right shoulder injury.
Dr Bodel in 2019 on examination found shoulder impingement with flexion to 140° and abduction 120° with the right side equalling the left. He did not diagnose a shoulder injury in his main report, however, in the separate impairment assessment he found 6% WPI for each shoulder due to restriction in shoulder movement. Dr Bodel did not refer to the pre-accident right shoulder ultrasound and so the Panel finds it cannot give weight to his findings regarding the right shoulder. Dr Bosanquet found no injury was sustained to the right shoulder in the motor accident. He took into account the pre-existing ultrasound.
Medical Assessor Truskett found no impingement in the shoulders but a reduction in the movement in both shoulders with the left being worse than the right. He expressed the opinion that the mechanism of injury is unlikely to have caused a right shoulder injury and noted there was no contemporaneous evidence of the same.
The Panel considers that given the findings on the pre-accident ultrasound and the specific reference to Ms Malek having difficulty raising her right shoulder over 90°, it is more likely than not on the balance of probabilities that the symptoms she has experienced in the right shoulder in 2019 are due to her pre-existing condition and not accident related.
In addition, while the lack of contemporaneous records is not necessarily determinative, in Ms Malek’s case it is relevant that there were no investigations undertaken post- accident in relation to the right shoulder and no mention of right shoulder symptoms or diagnosis of injury by Dr Lim, or any of the many doctors at the Workers Doctors practice, until January 2019, some 15 months post-accident. Furthermore, the medical members of the Panel consider that the pathology evident on the 2019 MRI scan is not traumatic in nature but rather attritional, as part of the degenerative process in the shoulder.
For all of the above reasons, the Panel finds that there was no injury to the right shoulder in the motor accident.
Left shoulder
There is no evidence that Ms Malek’s left shoulder was symptomatic before the motor accident on 22 October 2017.
One month after the motor accident there is reference to left shoulder pain by Mr Heuston[103] and Dr Lim, the same day, on 23 November 2017, diagnosed a left shoulder injury in his medical certificate[104]. Dr Lim issued a referral for the left shoulder MRI on 27 June 2018. The radiologist reported that the scan revealed a partial thickness articular surface tear of the supraspinatus involving most of the tendon, mild acromioclavicular arthrosis and a small subacromial -subdeltoid bursal effusion[105].
[103] AD4 p 129
[104] AD4 p 131.
[105] AD4 p 71.
On 12 November 2018 Dr Lim referred Ms Malek to Dr Singh, orthopaedic surgeon noting Ms Malek had left shoulder pain of concern and her neck pain was deteriorating.[106] However, despite this referral Dr Singh does not appear to have diagnosed a left shoulder injury. Dr Soo reported on 29 Janaury 2019 that Dr Singh had advised Ms Malek that the weakness in her arms was likely due to cervical disc problems[107]. Dr Soo reviewed the MRI shoulder scans and recommended physiotherapy but did not express an opinion about causation. On examination he found range of motion “FE to 130 (active), 150 passive, ER to 80 degrees, IR to T10”. He found “tenderness to her trapezius and mild generalised tenderness to the anterolateral prox[imal] humerus”. Dr Khong has provided several reports and noted Ms Malek’s shoulder pain was getting worse[108] but he also does not express a view about causation and focuses on the cervical spine and lumbar spine.
[106] AD4 p 243.a
[107] AD4 p 146.
[108] AD4 p 425.
Dr Bodel, Ms Malek’s medico-legal specialist, found in August 2019 shoulder impingement but no instability. He found the movements in the right and left shoulders to be equal with abduction of 120°, adduction 20°, internal and external rotation 60°, flexion 140° and extension 40°. He found 10% upper extremity impairment being 6% WPI for each shoulder.
Dr Bosenquet, for the insurer in November 2019, accepted there had been a left shoulder injury. He found no injury to the right shoulder. For both shoulders the abduction was to 90° and adduction to 30° but in all other movements the left shoulder had more restricted movement than the right. In his assessment of permanent impairment, he deducted the range of movement of the uninjured right shoulder from the injured left shoulder to arrive at 1% WPI for the left shoulder.
Assessor Truskett examined Ms Malek 19 months after Dr Bodel. Assessor Truskett found examination of the shoulder difficult, commenting that he felt there was voluntary lack of movement of the left shoulder. So, he used the measurements made by Dr Soo in report dated 29 Janaury 2019 to arrive at 3% WPI.
The Panel on the review is to conduct a fresh assessment. The Panel’s clinical examination findings have been set out in detail earlier in these reasons.
The medical members of the Panel viewed the three MRI scans. The Panel advises that the acromioclavicular joint of the left shoulder shows considerable spurring superiorly and inferiorly. The tissue is dark on T1 and T2 weighted images being a mixture of osteophyte formation and ligamentous hypertrophy. There are no reactive changes seen in the adjacent bone on the T2-weighted image, no residual joint space is present, and the regional bone scan shows no increase in isotope activity. The Panel advises because of the bone scan finding whatever caused the changes seen on the MRI scan occurred long ago is no longer active.
The Panel considers that the pathology evident on the scans is more likely than not degenerative in nature and was not caused traumatically in the motor accident. However, given Ms Malek’s complaints of left shoulder pain to Mr Heuston and Dr Lim one-month post- accident, the Panel accepts that is more likely than not on the balance of probabilities that there was an exacerbation of these underlying asymptomatic degenerative changes in the accident. Furthermore, the Panel considers such a finding is consistent with Ms Malek being a front seat passenger because the position of the seat belt can cause injury to the left acromion clavicular joint.
The Panel considers the evidence does not permit a deduction for these pre-existing changes as there is a lack of objective evidence to make an assessment of impairment existing at the time of the motor accident. However, the Panel finds assessing the impairment now present in the left shoulder is not straightforward. The Panel found, as noted in the examination findings set out earlier, that the range of motion measured formally was inconsistent and at odds with the relative freedom of movement shown by Ms Malek in general activity in the examination.
The Guidelines relevantly state:
“Clause 1.50.3: if the medical assessor is not satisfied results of a measurement are reliable, active range of motion should be measured with at least 3 consistent repetitions.
Clause 1.50.4: if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.”
“Clause 1.41: where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations non-clinical activities, the inconsistences must be brought to the injured person’s attention…”
“Clause 1.50.5: if range of motion measurements at examination cannot be used as a valid parameter of the impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel finds the range of motion method is not appropriate to assess impairment in
Ms Malek’s case due the inconsistency found on examination by the Panel, and to use this method would grossly overestimate the day-to-day level of her impairment. The Panel accepts the insurer’s submission that it is not appropriate to adopt the approach of Assessor Truskett and use the measurements of Dr Soo.The Panel has therefore assessed impairment using the method in chapter 3.1m of AMA4, page 58. The first three paragraphs on page 58 of AMA4 explain that the appropriate percents from Tables 19 to 30 are multiplied by percents from Table 18 representing the impaired parts. In the medical members of the Panel’s clinical experience, exacerbated acromioclavicular arthritis is the most appropriate clinical description of Ms Malek’s condition. The Panel notes the clinical findings of bony hypertrophy in the acromioclavicular joints and the associated radiological pathology mean that table 23 (page 60) is the appropriate table to use to measure Ms Malek’s impairment. The Panel advises this is because adduction best measures the restriction of her acromioclavicular joint movement and in Ms Malek’s case it is only mildly restricted. Therefore, applying table 23 the Panel finds 20% joint impairment is the appropriate percentage.
Table 18 defines the acromioclavicular joint and has a maximum impairment of 25% upper extremity impairment. Therefore, 20% (from table 23) x 25% (from table 18) equals 5% upper extremity impairment. Table 3 (page 20 AMA 4) converts 5% upper extremity impairment to 3% WPI.
SUMMARY OF INJURIES CAUSED BY THE ACCIDENT
· Cervical spine- soft tissue injury
· Lumbar spine- soft tissue injury, exacerbation of underlying symptomatic degenerative changes
· Left shoulder- soft tissue injury, exacerbation of underlying asymptomatic degenerative changes
IMPAIRMENT ASSESSMENT
The Panel has assessed permanent impairment using the Guidelines and AMA 4. Permanent impairment is defined in AMA 4 as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
In the Panel’s view the impairment in this case meets the definition of permanency outlined above. Chapter 1.118 of the Guidelines says the evaluation must not include any allowance for predicted long term change. It is noted that Ms Malek does not intend to undertake surgical treatment.
Combined WPI
The combined WPI equals 8% using the combined values chart, AMA 4 page 322. This is summarised in the Table below:
Body Part or System
AMA Guides/ MAA 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
Pages 103 and 104
YES
5%
0%
5%
2.
Lumbar spine
AMA4
Chapter 3
page 102
YES
5%
5%
0%
3.
Left shoulder
AMA 4 Chapter 3.1m, Tables 18 and 23, pages 58 and 60. Table 3, page 20.
YES
3%
0%
3%
* %WPI = percentage whole person impairment
0