QBE Insurance (Australia) Limited v Saltan
[2023] NSWPICMP 340
•20 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Saltan [2023] NSWPICMP 340 |
| CLAIMANT: | Sabahattin Saltan |
INSURER: | QBE Insurance Australia Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | John Garvey |
| DATE OF DECISION: | 20 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury on 14 December 2019 from side on collision; various soft tissue injuries; only basis for finding of a non-threshold injury was left shoulder condition; claimant asserted that he suffered left shoulder pain since motor accident which deteriorated two years later; MRI scan then showed partial thickness tear of the supraspinatus; absence of recorded complaint of left shoulder symptoms for two years relevant but not determinative of causation; AAI Ltd v McGiffen applied; left shoulder not mentioned in claim form; Bugat v Fox referred to; clinical note in November 2021 referred to five-week history of left shoulder pain; mechanism of injury to left shoulder not medically plausible; finding made that left shoulder not injured; Held – original assessment revoked; finding made that claimant suffered non-threshold injuries. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 21 February 2023 and certifies that the injuries caused by the motor accident are threshold injuries. |
REASONS
BACKGROUND
Mr Sabahattin Saltan (the claimant) sustained injury in a motor accident on 14 December 2019 when the insured vehicle came from a side street and collided with the front driver’s side panel and corner of the claimant’s vehicle (the motor accident).[1]
[1] Insurer’s bundle, p 38.
The insurer is liable to pay to Mr Saltan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute are whether Mr Saltan physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act. Mr Saltan alleges that he sustained injuries to the cervical and lumbar spines, right and left shoulder and abdomen involving an aggravation of a hiatus hernia.
Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury are a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Original Medical Assessment
The medical dispute was referred to Medical Assessor Berry who issued a Medical Assessment Certificate dated 21 February 2023 (the medical assessment). Medical Assessor Berry found that the injuries to the cervical and lumbar spine, right shoulder and abdomen were minor injuries, and the left shoulder injury was a non-minor injury.
The clinical findings of the Medical Assessor were tenderness in the cervical spine with normal neurological examination, normal thoracic spine, restriction of range of movement in the lumbar spine with normal neurological examination, full range of right shoulder movement and reduced range of extension, flexion and abduction in the left shoulder. The abdomen was soft and non-tender with no guarding, rigidity or rebound and no palpable masses.
The Medical Assessor noted that the claimant was “entirely co-operative throughout the assessment and there was no evidence of any illness behaviour or exaggeration”.
In relation to the medical dispute, Medical Assessor Berry stated:
“As a result of the collision, Mr Saltan suffered soft tissue injuries to his cervical spine, right shoulder and lumbar spine and a supraspinatus tear in the left shoulder as proven on his imaging.
He also aggravated his pre-existing hiatus hernia due to the medication intake but his has now resolved due to the restriction of his medication intake.”
The Medical Assessor concluded that the partial thickness tear of the left supraspinatus tendon was not a minor injury.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The claimant applied for referral to a review panel of the medical dispute of whether the claimant only suffered minor injuries. There was no review of the medical assessments concerning treatment and care.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[4] Section 7.26(5A) of the MAI Act.
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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction dated 7 July 2023 which relevantly provided:
“As a preliminary observation, the Panel cannot see any basis to find that the claimant suffered a non-threshold injury other than the left shoulder pathology (see ultrasound of the left shoulder dated 8 November 2021).
The Panel notes that there are no submissions filled by the claimant within the bundles. Any submissions by the claimant are to be filed and served by close of business, 13 July 2023.
Absent any objection, the Panel intends to proceed by way of audio-visual link at 2 pm on 14 July 2023. Both Medical Assessor Gibson and Principal Member Harris will be present.”
The Panel did not receive a response form the parties save that the claimant was interviewed by the Panel in accordance with the further Direction.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[8]
SUBMISSIONS
Insurer’s submissions dated 17 August 2022[9]
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] Insurer’s bundle, p 8.
The insurer referred to pre-accident symptoms which included:
- back pain in 2009 and 2014;
- right shoulder pain and ultrasound scan identifying tendinosis/bursitis in April 2014;
- hernia repair – 2018, and
- worsening back pain in 2019 with CT scan (February 2019) and injection (March 2019).
The claim form referred to injury to the neck, right shoulder, mid back and lower back. There was no ambulance or hospital treatment. The claimant first presented to his general practitioner (GP) on 16 December 2019.
Subsequent X-rays to the cervical and lumbar spine show degenerative changes with no specific pathology caused by the motor accident. Further MRI scans only show degenerative changes. A whole-body bone scan dated 11 September 2020 showed no definite focal abnormalities.
Epigastric complaints were mentioned in July 2020 and the claimant was then referred to Dr Chen.
In November 2021 Dr Tan recorded left shoulder pain for the past five weeks and organised an ultrasound which identified a partial thickness tear of the supraspinatus.
Insurer’s submissions dated 16 March 2023[10]
[10] Insurer’s bundle, p 2.
These submissions were filed seeking to review the medical assessment.
The insurer did not dispute the presence of a tear in the left supraspinatus but disputed that the motor accident caused injury to the left shoulder.
The insurer referenced its earlier submissions that the first complaint of left shoulder symptoms was first noted in November 2021. The partial thickness tear was pre-existing in nature.
The insurer referred to various medical records including physiotherapy records, radiological scans, Dr Chen’s reports, Dr Needham’s reports and GP records which are absent of left shoulder complaints until November 2021.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The lumbar spine X-ray dated 28 January 2005 was normal.[11] A CT scan of the lumbosacral spine dated 7 August 2006 noted lower back pain with referral to the right thigh and leg. Protrusions were shown in the lower tow level of the lumbar spine.[12]
[11] Insurer’s bundle, p 139.
[12] Insurer’s bundle, p 140.
A right shoulder ultrasound dated 6 May 2014 showed tendinosis of the supraspinatus tendon with subacromial bursitis and features of adhesive capsulitis.[13] The claimant underwent a right subacromial bursa injection in September 2014.[14]
[13] Insurer’s bundle, p 142.
[14] Insurer’s bundle, p 131.
In October 2014 the GP noted right sided low back pain with no weakness or pins and needles in the legs.[15]
[15] Insurer’s bundle, p 82.
A CT scan of the lumbosacral spine dated 22 February 2019 contained a clinical history of worsening back pain.[16] The scan showed retrolistheses due to facet joint arthropathy at L4.5 and minor herniation and left facet joint osteoarthritis at L5/S1.
[16] Insurer’s bundle, p 128.
On 11 March 2019 the claimant underwent an epidural into the left and right facet joints at L4/5.[17]
[17] Insurer’s bundle, p 123.
Post- accident medical records
A certificate of capacity dated 16 December 2019 noted lower back and neck injury.[18]
[18] Insurer’s bundle, p 49.
The clinical notes of Dr Capa, GP noted lower back in consultations on 17 December 2019 and 2 January 2020.[19]
[19] Insurer’s bundle, p 74.
The claim form dated 19 December 2019 completed by the claimant refers to injuries to the “neck, right shoulder, mid back and lower back”.[20] Clinical notes for subsequent consultations refer to neck and low back pain.[21]
[20] Insurer’s bundle, p 45.
[21] Insurer’s bundle, p 73.
On 10 January 2020 the GP noted low back pain and recent onset of neck pain.[22] The claimant was then referred for physiotherapy for low back and neck pain.[23]
[22] Insurer’s bundle, p 74.
[23] Insurer’s bundle, p 152.
X-rays of the cervical and lumbar spines dated 20 January 2020 showed minor spondylotic changes.[24]
[24] Insurer’s bundle, p 108.
An Allied health recovery request for physiotherapy dated 21 January 2020 referred to lower back and neck pain since the motor accident.[25] Further requests were completed on 19 February 2020[26] and 17 March 2020[27], both directed to the low back and neck.
[25] Insurer’s bundle, p 154.
[26] Insurer’s bundle, p 159.
[27] Insurer’s bundle, p 164.
On 16 July 2020 the GP noted referral to Dr Chen for management of epigastric pain “which started after taking nsaids and mobic as a result of mva related injuries”.[28]
[28] Insurer’s bundle, p 72.
A handwritten document from the GP in response to a letter from the insurer dated 30 January 2020 noted left leg (sciatica) and bilateral shoulder pain as the reason for requesting MRI scans of the cervical and lumbar spine.[29]
[29] Insurer’s bundle, p 71.
MRI scan of the cervical spine dated 30 June 2020 showed normal alignment and shallow disc bulges at C3/4 and C6/7 with no significant spinal canal or neural exit foraminal stenosis at any level.[30] The MRI scan of the lumbar spine showed mid disc height loss at L5/S1 with shallow bulge and mild facet arthroplasty at L4/5 and L5/S1. There was no significant spinal canal or neural exit foraminal stenosis at any level.
[30] Insurer’s bundle, p 149.
Dr Geoffrey Needham, physician, provided a report dated 8 July 2020 noted lumbar spine pain and milder cervical spine pain.[31] The MRI scan of the cervical spine showed “mild multilevel degenerative changes” and the scan of the lumbar spine showed significant disc dessication at the lower levels.
[31] Insurer’s bundle, p 257.
Dr Guang Chen, gastroenterologist, provided a report dated 27 July 2020. The doctor noted reports of epigastric discomfort and constipation following the motor accident with the claimant on paracetamol, codeine and ibuprofen. Abdominal examination was unremarkable, and the doctor wondered if the nonspecific symptoms were related to the medications. The doctor suggested an endoscopy and reduced intake of medications.[32]
[32] Insurer’s bundle, p 272.
The gastroscopy at Mount Druitt Hospital April 26, 2021, showed a small hiatus hernia, stomach normal, but no comment on gastro-oesophageal reflux changes. The histopathology report showed gastric antrum-moderate chronic inflammation (no report on disaccharidase test)
On June 28, 2021 it was recorded that the claimant felt better after cessation of codeine and nonsteroidal anti-inflammatory drugs (NSAIDs).
On 1 July 2021 Dr Chen noted the recent biopsies were unremarkable.[33]
[33] Insurer’s bundle, p 266.
On 4 August 2020 the GP again referred the claimant for physiotherapy for the neck and back.[34]
[34] Insurer’s bundle, p 175.
Dr Needham provided a further report dated 9 September 2020.[35] The doctor noted complaints of neck and lower back pain in the context of the claimant being “quite pain focused although not unduly distressed”. MRI scans showed “mild degenerative changes” and the doctor recommended a nuclear medicine bone scan to further evaluate the underlying disorder.
[35] Insurer’s bundle, p 66.
The whole body bone scan with SPECT CT on September 11, 2020 showed low-grade enthesopathy of the greater tubercle of the humerus.
On 14 October 2020 Dr Needham noted that the bone scan did not show any abnormality in relation to the injuries.[36]
[36] Insurer’s bundle, p 259.
On 8 November 2021 the GP recorded:[37]
“Lt shoulder pain x 5 weeks. Unable to lie on that side. History of similar pain to Rt shoulder years ago.”
[37] Insurer’s bundle, p 112.
The doctor noted reduction in abduction and internal rotation and referred the claimant for an ultrasound.
The ultrasound of the left shoulder dated 8 November 2021 noted a clinical history of pain for five weeks and showed a partial thickness tear of the articular surface and supraspinatus measuring 6 x 8 mm.[38]
[38] Insurer’s bundle, p 120.
Further GP consultations noted the ultrasound showed a partial thickness tear of the supraspinatus and reduced range of motion.
On 5 January 2022 the claimant underwent an ultrasound guided injection into the left shoulder.[39]
Qualified opinion
[39] Insurer’s bundle, p 117.
Dr David Crocker, physician, was qualified by the claimant and provided a report dated 8 March 2022.[40] The doctor obtained a history of pain in both shoulder girdles, more on the left and low back and neck pain immediately following the motor accident.
[40] Insurer’s bundle, p 315.
Dr Crocker noted that consumption of NSAIDs had ceased since the gastroscopy which showed a small hiatus hernia which was aggravated by the consumption of NSAIDs. The doctor opined that the motor accident had caused an aggravation of multilevel degenerative changes in the spine. He also opined that there was an aggravation of pre-existing tendinosis and that it “cannot be excluded” that there was a partial tear of the rotator cuff caused by the motor accident.
Claimant’s statement
The claimant provided a statement dated 4 July 2022[41] which set out an extensive work history. He noted prior occasional back pain since 2005 and right shoulder pain in 2014. The claimant described the effects of the motor accident on his body as follows:[42]
“As a result, the bottom of my body was thrown slightly upwards from the seat and then the upper part of my body was thrown forwards and then backwards onto my seat. I had both hands on the steering wheel. The whole of my body, including the whole of my spine, my shoulders and my arms were shaken by the impact.”
[41] Insurer’s bundle, p 36.
[42] Insurer’s bundle, p 38.
The claimant stated that he experienced pain in the “neck, right shoulder, mid back and lower back and to a lesser degree my left shoulder.”
EXAMINATION
The claimant was examined by Medical Assessor Gibson and Principal Member Harris on 14 July 2023 who provided the following report:
“Mr Saltan was questioned on 14 July 2023. He had no interpreter and decribed his English as ‘fair’.
Mr Saltan agreed that he suffered a right shoulder condition in 2014 and then had an injection. He said that he recovered from that problem and his health was good prior to the motor accident. Mr Saltrran was in full-time employment at the time of the motor accident. He has maintained his employemnt and that his work does not involve lifting.
The claimant’s description of the motor accident was a little confusing. To clarify this the version in the claim form was read out to Mr Saltan. Mr Saltan agreed that the version recorded in the claim form accurately described the motor accident.
Mr Saltan identified his signature on the claim form although he stated that he did not write English very well. He said he could read English. Mr Saltan stated that he could not remember completing the claim form although he agreed that it accurately recorded the motor accident. Mr Saltan also agreed that the claim form accurately referred to the ‘neck, right shoulder, mid back and lower back’ as being injured. Mr Saltan was informed that the left shoulder was not mentioned in the claim form. His response was that he did not remember the document.
Mr Saltan was asked about the clinical note of the doctor dated 8 November 2021. He said that he told his doctor at that time that his left shoulder had ‘got worse’ over the previous five weeks rather than that the pain developed five weeks before that clinical examination.
Mr Saltan was clear in his sttatement to the Panel that he had left and right shoulder pain (as well as in the back and neck) since the motor accident. He said that he advised his local doctor and the physiotherapist about the left shoulder and had physiotherapy to his shoulders.
Mr Saltan was advised that the records did not refer to treatment for either shoulder following the motor accident. He reiterated that he told his doctors and physiotherapist.
Mr Saltan recalled seeing the specialist for his pain. He agreed that he may have only discussed the back and neck to Dr Needham and not his shoulders.
Mr Saltan was asked how he thought he had injured his left shoulder in the motor accident. He said that during the motor accdient he felt liike he jumped up and down and that the seatbelt was over his left shoulder. He explained the pain on the basis of the seat-belt being over his left shoulder. Mr Saltan agreed that it was a ‘normal’ seatbelt that went over his right shoulder down towards the left lap. Howeverr, Mr Saltan indicated that the seatbelt also went over his left shoudler. When asked about this, Mr Saltan paused and said this was how it went.
At the end Mr Saltan was aked if he wished to add anything. He replied that he had answered all the questions.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[45] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[45] [2022] NSWPICMP 6 at [44]-[62].
We adopt the examination report of the Panel and the clinical findings of Medical Assessor Berry. We note that there was no objection by the parties to the way the Panel proceeded on the review.
The injuries to the neck and back were soft tissue injuries with no evidence that there was “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. There is no evidence recorded by any health practitioner of signs of radiculopathy within the meaning of cl 5.8 of the Guidelines.
The motor accident probably caused a transient soft tissue injury to the right shoulder consistent with the complaint in the claim form and is explicable by the minor irritation through the seatbelt. However, there was no ongoing complaints and treatment. The subsequent examination by Medical Assessor Berry of the right shoulder was normal.
We accept that the medication intake aggravated the previously asymptomatic hiatus hernia by NSAIDs. The symptoms of heartburn, reflux and constipation can be exacerbated by NSAIDs medication by lowering oesophageal sphincter tone facilitating reflux oesophagitis and delayed gastric emptying.
The physical examination of the abdomen on 13 February 2023 was normal. There was no pathological change of the oesophagus caused by the NSAIDs.
Pathological change to the stomach was chronic inflammation of the gastric antrum. The biopsy did not show chemical changes. This is a soft tissue injury within the meaning of the MAI Act.
We accept that the motor accident would have caused a whiplash type injury to the cervical spine and lumbar spine which is supported by the contemporaneous complaints of neck and back pain. However there is no evidence supporting “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. There are also no signs of cervical and lumbar radiculopathy recorded by any doctor.
Left shoulder injury
We do not accept the claimant’s statement that he injured his left shoulder for the following reasons.
There is an absence of reference to the left shoulder in any medical report or note until the record in November 2021. The only exception to this statement is the explanation by the GP for obtaining an MRI scan of the neck that there was “leg pain, (sciatica) and bilateral shoulder pain”[46]. That single reference does not suggest discrete injury to the left shoulder but rather referred pain to the shoulders explaining the reason for requiring an MRI scan.
[46] Insurer’s bundle, p 71.
The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[47]
[47] [2016] NSWCA 229 at [64]-[66].
The left shoulder is not mentioned in the claim form. The significance of the omission is somewhat diminished because Mr Saltan stated that he did not remember completing the document although he identified his signature when it was shown to him by audio-visual link. Mr Saltan otherwise agreed that the version of the motor accident recorded in the claim form was accurate as were other personal details.
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[48] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[48] [2014] NSWSC 888 at [31]-[32].
The clinical history recorded in November 2021 by the GP is of a five-week history of left shoulder. Mr Saltan explained that this was an error as said that the left shoulder had got worse at that time. The explanation does not sit with an absence of any record by the GP prior to that time. The note is otherwise accurate when it refers to a similar problem to the right shoulder “years ago”. Mr Saltan confirmed that he had a similar problem to the right shoulder years ago.
We are conscious that clinical notes may incorrectly describe histories.[49] However the clinical note does not support the claimant’s version and is otherwise accurate when it refers to prior right shoulder pain.
[49] See the discussion in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
The Panel is otherwise not satisfied that it is medically plausible that the mechanism of injury to the left shoulder is explained by the motor accident. The description by Mr Saltan that his seatbelt went over his left shoulder was unconvincing and simply inconsistent with common knowledge. The suggestion is the claimant’s submissions that there was sufficient force directed through the arms holding the steering wheel does not accord with the medical expertise within the Panel.
Mr Saltan provided a statement in early 2022 that the motor accident caused injury to the left shoulder. This statement was made after the left shoulder pathology was diagnosed on the scan. From seeing Mr Saltan, we accept that he is convinced that the motor accident injured his left shoulder which caused the pathology shown on the scan.
However, the absence of record for two years, the absence of reference of that body part in the claim form, the preciseness of the clinical note in November 2021 and the Panel’s view that this injury is not medically plausible explain why we do not accept Mr Saltan’s written and oral statements that he suffered left shoulder pain following the motor accident. The onset of left shoulder pain in late 2021 is explicable based on the onset of degenerative changes similar to what occurred in the right shoulder in 2014.
We are not satisfied that the motor accident caused injury to the left shoulder.
CONCLUSION
For these reasons the Panel concludes that the certificate is revoked. The replacement certificate is attached to these reasons.
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