QBE Insurance (Australia) Limited v Shah
[2023] NSWPICMP 129
•5 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Shah [2023] NSWPICMP 129 |
| CLAIMANT: | Bhanprakash Shah |
INSURER: | QBE Insurance Australia Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 5 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury on 12 February 2014 in a rear end collision; Medical Assessor (MA) Burns in a certificate dated 21 January 2020 assessed a 20% whole person impairment (WPI) for injury to the left shoulder, injury to the right shoulder and for right sided trochanteric bursitis; Justice Fagan in QBE v Shah remitted matter on basis of inadequate reasons and failure to address the surveillance and was critical of the lack of scientific or critical reasoning applied; dispute referred to MA Harrington who assessed a 34% WPI in respect of injury to the left shoulder, the right shoulder and the right knee; he found any soft tissue injury to the right hip had resolved; Panel asked to review the certificate of MA Harrington; insurer raised questions of causation in respect of injuries to the right shoulder, the right knee and the right hip; Held – Panel concerned about reliability of the claimant’s evidence; inconsistencies on examination and on surveillance footage; Mr Shah described being hit “square on”; Panel found full thickness rotator cuff bilateral tears with supraspinatus retraction were long standing and not caused by accident; Panel found accident caused aggravation of the underlying rotator cuff pathology in both shoulders; right knee pain due to pre-existing lateral compartment osteoarthritis; following accident claimant able to mobilise; in absence of substantial articular injury or evidence of any forceful impact Panel found accident was not more than a negligible cause of the lateral compartment osteoarthritis; Panel found claimant did not injure right knee in accident; Panel found pre-existing greater trochanteric bursitis not aggravated by accident in absence of evidence he struck knee in accident and in absence of evidence of injury such as bruising; Panel found accident not cause injury to right knee or right hip; Panel found injury to left and right shoulders and assessed WPI by joint crepitation at 6% WPI. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Review Panel Certificate The Panel revokes the Certificate of Medical Assessor Christopher Harrington dated 29 June 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a whole person impairment (WPI) which is not greater than 10% but give rise to a WPI of 6%: · injury to the left shoulder, and · injury to the right shoulder. The Panel determines that the following injuries were not caused by the motor accident: · injury to the right knee, and · injury to the right hip. |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
Mr Bhanprakash Bridjmohan Shah (the claimant) suffered injury in a motor vehicle accident on 12 February 2014 (the accident).
QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
The medical dispute was referred to Medical Assessor Ashwell for assessment.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CERTIFICATES OF MEDICAL ASSESSOR ASHWELL
Medical Assessor Ashwell issued a certificate dated 3 April 2017 determining an MRI of the right shoulder, as proposed by Dr Bateman was causally related to the injury sustained in the accident.[2] He found there was degenerative change which was asymptomatic prior to the accident and had the accident not occurred he believed the shoulders would have remained asymptomatic.
[2] AD3 p 118.
On 29 March 2018 Medical Assessor Ashwell issued a certificate determining that the following treatments were reasonable and necessary in the circumstances and related to the injuries caused by the accident:
·proposed right reverse shoulder replacement;
·proposed 10 days of physiotherapy to the right shoulder post-surgery for 12 weeks as recommended by Dr Bateman;
·proposed fortnightly physiotherapy for a further 12 weeks to the right shoulder after the initial 12 weeks of physiotherapy post-surgery as recommended by Dr Bateman, and
·eight proposed sessions of physiotherapy to the right hip as proposed by East Gosford Physiotherapy.[3]
[3] AD3 p 125.
That certificate of Medical Assessor Ashwell was subject to criticism by his Honour Justice Fagan in QBE Insurance (Australia) Limited v Shah[4] where he stated:
“Again, scientific reasoning is absent from this. No consideration appears to have been given by Dr Ashwell to the fundamental question of how the accident described by the first defendant could possibly have generated forces that would have caused traumatic injury to his right rotator cuff tendons.”
[4] [2021] NSWSC 288 at [41].
CERTIFICATE OF MEDICAL ASSESSOR BURNS
Medical Assessor Burns issued a certificate dated 21 January 2020. Medical Assessor Burns assessed whole person impairment (WPI) at 20% on the basis the claimant had sustained a 10% WPI for the left shoulder, 9% WPI for the right shoulder and 3% for right-sided trochanteric bursitis.
QBE INSURANCE (AUSTRALIA) LIMITED V SHAH
The certificate of Medical Assessor Burns was the subject of an application for judicial review in QBE Insurance (Australia) Limited v Shah.[5] The Supreme Court held that Medical Assessor Burns failed to comply with cl 1.41 of the Permanent Impairment Guidelines, failed to provide adequate reasons and failed to address the surveillance film available. The application was remitted back for redetermination by a new medical assessor.
[5] [2021] NSWSC 288.
Justice Fagan was critical of the lack of scientific or critical reasoning applied by not only Medical Assessor Burns, but also Medical Assessor Ashwell and Drs Bateman and Noll. He stated as follows with respect to the reasons of Medical Assessor Burns:
“71 With respect, these reasons lack rigour or force. At point 5, the fact that ‘both shoulders were mentioned in the ambulance report’ has no value on the question because, as noted at point 3, the ambulance officers recorded only ‘non-specific bilateral shoulder pain with an apparent full range of movement’ and at the hospital ‘no shoulder injuries were listed’. Dr Burns’ reasons do not articulate any scientific explanation of how ‘non-specific’ shoulder pain could indicate traumatic injury to the rotator cuff tendons, on either side.
72 Again with reference to point 5, the fact that Dr Jones arranged an x-ray of the right shoulder ‘within 8 weeks of the accident’ is no evidence at all of injury to the right shoulder. Contrary to Dr Burns’ statements at point 5, he has identified no evidence of right-sided rotator cuff injury contemporaneous with the accident. It was not a matter of ignoring slight contemporaneous evidence; the doctor identified none.
73 Dr Burns has not explained any biomechanical or anatomical mechanism by which the damage to the right rotator cuff tendons, which were not imaged or surveyed until the ultrasound of 6 August 2015, 18 months after the accident, could have been caused by it. His finding of causation of the right side tendon damage is, like all other medical opinions in the case concerning either of the first defendant’s shoulders, bereft of scientific explanation of forces that could have been imparted to the joint or any other aspect of a hypothesis of causation drawing on medical expertise.
74 Dr Burns’ reasons say nothing about whether the age of the rotator cuff damage on the left side can be gauged by the condition of the tendons and their associated muscles as revealed by ultrasound on 6 August and
19 November 2015 and by MRI in July 2017 (see [28], [31] and [37]). In particular, he does not state whether the extent of deterioration that was identified by those studies can be reconciled with the proposition that the damage was done no earlier than the date of the accident or was materially accelerated from that date. If this is a case of exacerbation of pre-existing degeneration, is the extent of tendon deterioration shown in the radiological studies - and the degree of sclerosis of the greater tuberosity of the humerus, identified two weeks after the accident - consistent with the progressive tendon damage having been at such an early stage before the accident as to have been asymptomatic? The reasons do not address this.75 At point 7 Dr Burns states that the left shoulder was injured in the collision. This is just a repetition of the equally unreasoned conclusions of Drs Bateman and Noll. In any event, evidence of, or a conclusion about, the cause of the left-sided injury could not determine, or even assist with, the issue of causation on the right.
76 Dr Burns does not state in his reasons that he relied upon Dr Ashwell’s conclusion that tendon damage to the right side was caused by the accident. If he did, such reliance would have been unsound because of the lack of scientific reasoning for Dr Ashwell’s conclusion.
77 Although Dr Burns stated at point 6 that he was ‘unable to place any significant emphasis on the history’ given by the first defendant, necessarily he must have accepted so much of that history as amounted to a disclaimer of pre-accident shoulder injury or symptoms. A material consideration bearing upon whether the first defendant’s denial of pre-accident shoulder symptoms can be accepted is the existence, or absence, of a scientific hypothesis of biomechanical causation. If there is no such explanation - and none has been propounded to date – then that of itself would raise at the least an objective doubt concerning the veracity of the history. In addition, reasoned consideration of whether the surveillance footage contradicts the first defendant about his current symptoms and incapacity would bear upon the weight that could be attached to his history.”
The matter was remitted to Medical Assessor Harrington whose certificate is the subject of this review application.
CERTIFICATE OF MEDICAL ASSESSOR HARRINGTON
In his certificate dated 29 June 2022 Medical Assessor Christopher Harrington provided an assessment of 34% WPI in respect of injury to the left shoulder, the right shoulder and the right knee.[6]
[6] AD2 p 42.
The injuries referred to Medical Assessor Harrington for assessment were listed as follows:
· right hip – aggravation of osteoarthritis;
· right knee – aggravation of osteoarthritis;
· right shoulder – rotator cuff injury and shoulder impingement, and
· left shoulder – rotator cuff injury and shoulder impingement.
Medical Assessor Harrington concluded Mr Shah had early arthritis of the right hip, but he had a good range of movement and concluded any soft tissue injury to the right hip had resolved.
He noted Mr Shah denied any pre-existing symptoms in the shoulders, hip or knees. Medical Assessor Harrington reported the chronic changes of the cruciate ligaments were not causally related to the accident and nor was the constitutional valgus arthritis of the right knee. However, he concluded the accident aggravated the arthritis in the right knee given the lack of pre-injury complaint.
Medical Assessor Harrington also concluded the left shoulder injury was causally related to the accident and the right shoulder was causally related to the accident by way of aggravation.
Medical Assessor Harrington assessed a 10% WPI of the left shoulder after deducting 1/10th for the pre-existing condition. He also assessed a 10% WPI of the right shoulder after deducting 1/10th for the pre-existing condition. He assessed 18% WPI for the right knee after deducting 1/10th for the pre-existing condition.
REVIEW PROCEDURE
The present application is a review of the medical assessment of Medical Assessor Harrington to s 63 of the MAC Act.
An application for review of the medical assessment of Medical Assessor Harrington was lodged by the insurer on 5 August 2022 within 28 days of the date on which the certificate of Medical Assessor Harrington was made available to the parties.[7]
[7] Section 63(7) of the MAC Act.
On 21 September 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[8]
[8] Section 63(2B) of the MAC Act, AD2 p 16.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of part 2, division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act, pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Commission. The President’s Delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[9]
[9] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[10]
[10] 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.[11]
[11] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[12]
[12] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Harrington was concerned.
On 29 November 2022 the Panel decided a medical examination was required.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 26 September 2022 which required each party to file an indexed, paginated bundle of documents.
In response to this direction the solicitor for the insurer filed a bundle of documents paginated from pages 1 to 568 and filed in the portal as AD2. The solicitor for the claimant filed a bundle of documents paginated from pages 1 to 259 and filed in the portal as AD3.
On 28 November 2022 the Panel directed the insurer by close of business 16 January 2023 to upload the following to the portal:
(a) a copy of the Police report pertaining to the accident;
(b) photographs of the claimant’s vehicle and, if available, of the other vehicle involved in the accident, and
(c) the surveillance film relied upon by the insurer.
In response to that Direction the insurer uploaded the Police Report (AD4) and the surveillance footage. No photographs of the vehicles involved in the accident have been provided.
Pre-accident treating records
Mr Shah had a history of hypertension. Dr James Wong, cardiologist, concluded his blood pressure was elevated, having recently settled in Australia.[13]
[13] AD2 p 90.
On 6 January 2003 Dr David Carpenter, general practitioner (GP), reported right shoulder pain.
On 12 December 2005 Dr Carpenter reported pain in the right knee, present for a few weeks.[14] He diagnosed a patellofemoral problem and recommended Voltaren.
[14] AD2 p 74.
A CT scan of the lumbar spine on 3 March 2008 disclosed the presence of a large left paracentric disc protrusion at the L4/5 level.[15]
Personal injury claim form
[15] AD3 p 197.
In the claim form dated 17 July 2014 the claimant provided the following description of the accident:
“I was on the right lane going from Carrington to Newcastle City. The traffic lights was red and I was stationary behind a few cars – all waiting at the traffic intersection. Suddenly my body was jolted as if I was going to die. My shoulders, back, neck and hip were thrown into different direction, I did not know what was happening for a few seconds then I realised I was pushed forward and catapulted into a car in front. At this point I realised a vehicle had knocked into me from behind. My glasses fell off. I opened the door, removed my seatbelt and lay flat on my face on the road. I thank God the Police was in attendance and witnessed the entire accident. I was taken by ambulance to the John Hunter Hospital.”[16]
[16] AD3 p 21.
The claimant described injury to the left shoulder, the right shoulder, the right hip, a sore knee and neck strain.
Police report
The report states:
“At about 13.40 on Wednesday the 12 February 2014 a xx year old male was travelling south in lane 2 of Hannell street Wickham. The vehicle was a 20xx ford falcon fitted with an aluminium tray body. The vehicle was travelling at 50kph and when it was approximately 40 metres north of Church Street the vehicle collided with the rear of a 20xx Toyota corolla sedan that was stationary and driven by a xx year old male and pushing this into a 20xx Toyota corolla driven by a 23 year woman. The male in the middle vehicle was conveyed to the John Hunter hospital with a back injury and his vehicle and the offending vehicle were towed from the scene. … Police witnessed the collision.”[17]
Post-accident treating records
[17] AD4.
Ambulance report
The report states:
“…post med speed MVA with some shoulder pain and lateral neck discomfort, O/A Pt laying flat on the ground states has to lay there because of the accident, O/E Pt alert, well perfused; inconsistent with palpated pain assessment of neck and shoulders. Pt states he can’t move, Pt then proceeded to get up and walk to his car, get in and out to gather his things, wife on scene and Pt was gesturing and obvious full movement to all arms, legs, shoulders, neck. Pt then refused to lay on bed initially, Pt then refused to lay still. Nil chest pain, nil numbness or tingling in arms or legs. All obs within normal ranges for PT.”[18]
[18] AD2 p 266.
John Hunter Hospital
Mr Shah was transported by ambulance to John Hunter Hospital. The Emergency Department triage notes report:
“Male aged 59 years, 3 months presents with MVC – Driver BIBA. Driver of stationary vehicle struck from behind by car travelling approx. 50-60 km/hr. Self extricated, mobile on scene. C/O lateral neck radiating to shoulders, chest and arms. Denies other injury. O/A GCS 15. VAS 5/10. Strong radial pulses, normal sensation and movement …”.[19]
[19] AD3 p 152.
Clinical notes of Charlestown Medical & Dental Centre
Following the accident on 14 February 2014 Mr Shah consulted his GP on 15, 20 and
22 February 2014 for unrelated complaints.On 22 February 2014 Mr Shah consulted Dr Jones, GP, it was reported “a car went into the back of him”.[20] Mr Shah reported he still had a sore neck and a painful left shoulder with restricted movement. On examination Dr Jones found “Reasonable neck movement but L shoulder abduction limited to 90 degrees”. Mr Shah was referred for an X-ray of his cervical spine and left shoulder and an ultrasound of the left shoulder. He was also diagnosed with diabetes.
[20] AD2 p 126.
In a letter of referral to Dr Bateman dated 8 March 2014 Dr David Jones reported Mr Shah was seen on 22 February 2014 and that he presented with a sore neck and a painful left shoulder with restricted movement.[21] There was no mention of the right shoulder, right hip or right knee.
[21] AD3 p 72.
On 5 July 2014 it was reported Mr Shah was to have an arthroscopic repair on his left shoulder.
On 10 October 2014 right trochanteric bursitis was queried and an ultrasound arranged.
On 31 July 2015 the claimant reported since the accident he had experienced pain and limited movement of the right shoulder.
On 30 October 2015 it was reported Mr Shah was in a lot of pain in his shoulders, right hip and right knee. He was referred to Dr Dunkley for the right hip and right knee. On
28 November 2015 Mr Shah was referred to Dr Bateman in respect of the right shoulder.On 17 September 2016 it was reported Mr Shah was still struggling with pain in his right hip and right knee. Both shoulders were very stiff and painful.
On 11 January 2017 it was reported Mr Shah was unhappy about his right hip and right knee and the treatment he had received from Dr Dunkley.
Dr Ed Bateman, orthopaedic surgeon
Mr Shah saw Dr Bateman on 7 April 2014 in respect of bilateral shoulder injuries, the left worse than the right sustained in the accident.[22] Dr Bateman reported the ultrasound confirmed a large full thickness tear of the supraspinatus, possibly involving the infraspinatus. He recommended an early arthroscopic repair of the left shoulder with the right shoulder to be reviewed based on his progress with the left shoulder.
[22] AD3 p 57.
On 19 January 2015 Mr Shah underwent arthroscopic rotator cuff repair of the left shoulder.[23]
[23] AD3 p 71
On 20 April 2015 Dr Bateman undertook a three month post operative review and reported the CT arthrogram showed that not all of the tendons had healed and that he had a 50% improvement on his pre-operative state.[24] He concluded Mr Shah would not get a normal shoulder out of the surgery. Dr Bateman also reported Mr Shah injured his right shoulder, right hip and right knee in the accident. He thought Mr Shah might have a small rotator cuff tear of the right shoulder from the accident and whilst there was no fracture of the right hip and knee noted he had altered mechanics of his pelvis and knee and would benefit from physiotherapy.
[24] AD3 p 59.
In a report dated 8 December 2015 Dr Bateman reported Mr Shah presented with bilateral rotator cuff tears.[25] He concluded the accident was a substantial contributing factor to his presentation with pain and difficulty lifting the arms above shoulder height on the basis
Mr Shah had no problems before the accident.[25] AD3 p 116.
On 6 February 2017 Dr Bateman reported he agreed with Dr Dunkley that Mr Shah had severely altered hip mechanics and knee mechanics.[26] He recommended physiotherapy.
[26] AD2 p 191.
On 5 July 2017 Dr Bateman reviewed Mr Shah. He reported the MRI scan showed the rotator cuff tear was too far gone to be repaired.[27] He stated:
“there is significant fatty infiltration of the supraspinatus muscle belly and the tendon has retracted back to the level of the glenoid margin.”
He recommended a reverse shoulder replacement noting Mr Shah had poor function and could not lift his arm about 80º or externally rotate without significant pain.
[27] AD2 p 189.
Dr Bateman reviewed Mr Shah on 5 July 2018.[28] He noted it was apparent from the CT arthrogram that the left shoulder tendon repair did not heal. He described Mr Shah as “quite debilitated on both sides”. He recommended that his right and even left shoulder be replaced with reverse shoulder arthroplasties down the track.
Jennifer Finnie Physiotherapy
[28] AD2 p 263.
On 8 April 2015 Mr Mole, physiotherapist, reported he had seen Mr Shah since his operation. He reported he had a lot of lateral arm pain which he put down to him doing too much at work.[29]
[29] AD3 p 93.
On 24 September 2015 Mr Mole indicated he had been seeing Mr Shah regarding his shoulders “and more recently his right knee and hip”.[30]
[30] AD3 p 107.
Ms Finnie and Deidre Norgard provided a report dated 2 December 2015.[31] It was noted that Mr Mole had been the treating physiotherapist in relation to the following conditions:
· left shoulder, poor outcome post rotator cuff repair with weakness, shoulder stiffness and constant pain;
· right shoulder – rotator cuff tears, and
· right hip/right knee – altered biomechanics and joint stiffness.
[31] AD3 p 114.
Treatment had ceased, even though the insurer had approved treatment to the right shoulder, pelvis/hip and right knee on 26 June 2015.
Dr Benjamin Kenny, orthopaedic surgeon
Dr Kenny reviewed Mr Shah on 12 April 2016, two years post arthroscopic surgery to the left shoulder.[32] He stated following the accident Mr Shah had injuries to bilateral shoulders, right hip and right knee. He stated the left shoulder had a full thickness tear of the supraspinatus, infraspinatus, a biceps pulley rupture and fraying of the top edge of the subscapularis. On examination he noted he could only forward flex to 45º with 0º of external rotation and 10º of internal rotation. He noted there was a large degree of scar formation.
Dr Christopher Dunkley, orthopaedic surgeon
[32] AD2 p 196.
Mr Shah was referred to Dr Dunkley on 30 October 2015. In the letter of referral, Dr Jones stated since the accident Mr Shah had had pain in his right hip and right knee.[33]
[33] AD3 p 109.
Dr Dunkley reviewed Mr Shah on 24 March 2016.[34] He noted problems with both shoulders for which Mr Shah was under the care of Dr Bateman. He reported he also had whiplash and had noticed pain around his flank and the lateral side of the right hip. He also recorded complaints of pain in the right knee. He recommended further investigations.
[34] AD2 p 197.
Dr Dunkley reviewed Mr Shah on 4 May 2016.[35] He stated the MRI of the hip showed an increased amount of fluid in the area of the trochanteric bursa and some degenerative changes within the hip joint itself. In relation to causation, he stated:
“…I do think he would benefit from a guided injection of local anaesthetic and corticosteroid into his trochanteric bursa on the right hand side. This area certainly has an unusual appearance and was in fact reported as consistent with a haematoma. This is unlikely to be the case this far down the track from his traumatic experience in his motor vehicle accident, but it is certainly consistent with a heavy blow to the side of the hip…”
[35] AD2 p 195.
In relation to the knee, he stated he believed the pain was coming from the degenerative changes in his knee. On the basis Mr Shah stated he had no pain whatsoever prior to the accident, and where it had been two years since the accident, Dr Dunkley stated, “I can only determine that the accident has significantly contributed to his degenerative changes”. He noted whilst the MRI scan commented on problems with his ACL (anterior cruciate ligament) he reported clinically he had a solid end point on his ACL and he thought it was more consistent with degenerative changes in the ACL than an ACL tear. He recommended a corticosteroid injection and in the long term knee replacement surgery.
Dr Jay Joshi, orthopaedic surgeon
Dr Joshi, a fellow to Dr Bateman reviewed Mr Shah and diagnosed bilateral glenohumeral cuff tear arthropathy.[36]
[36] AD2 p 511.
Dr Geoffrey Workman, orthopaedic specialist
Mr Shah saw Dr Workman on 26 May 2021. He reported Mr Shah suffered injuries to both shoulders as well as his right hip and right knee in the accident.[37] He noted increasing pain and stiffness of the right knee and significant trochanteric and gluteal pain in the right hip.
[37] AD2 p 504.
He stated given the accident involved him being forcibly hit from the side it is likely his knee was injured at the time of the accident and forced into valgus damaging his medial collateral ligament and the cartilage in the lateral compartment that over six or seven years has degenerated into post-traumatic arthritis. Dr Workman stated this is a likely series of events given his other knee is completely normal and this has been the only significant accident.
Investigations
Ultrasound of the left shoulder, 3 March 2014 – the history is of a car accident two weeks ago and the report states:
“There is a full thickness tear of the supraspinatus tend 30m in length. There is fluid in the subdeltoid bursa.
The infraspinatus is difficult to see. There is fluid seen in the infraspinatus musculo- tendinosis region ?partial tear.
The biceps tendon is displaced forwards and medially in the groove.
Subscapularis tendon is not well seen. However, the tendon appears to be tendonopathic.
Labrum and the AC joints are intact. There is a posterior joint effusion. …” [38]
[38] AD2 p 144.
X-ray of the left shoulder, 3 March 2014 – the report concludes:
”No bone injury is seen.
There is thickening of the greater tuberosity in keeping with rotator cuff degeneration.”[39]
[39] AD2 p 145.
X-ray of the cervical spine, 3 March 2014 – the report concludes:
“No bone injury seen. There is narrowing of 5/6 disc spaces.
Osteophytes in keeping with localised cervical spondylosis. The exit foramina are compromised at this level on both sides.”[40]
[40] AD2 p 145.
X-rays of the right shoulder and right hip, 1 April 2014 – were reported to be normal examinations.[41]
[41] AD3 p 56.
X-ray of the right shoulder, 5 April 2014 - the report concludes:
“There is no recent nor past fracture. There is no arthropathy. The acromioclavicular joint is normal. There is no soft tissue calcification.
Conclusion: Normal examination.”
X-ray of the right hip, 5 April 2014 – the conclusion was a normal examination.[42]
[42] AD3 p 81.
X-ray of the right knee, 7 April 2014 – showed evidence of minor degenerative change in relation to the patellofemoral compartment but no other abnormality.[43]
[43] AD3 p 85.
X-ray of the left knee, 7 April 2014 – showed joint space narrowing and marginal osteophyte formation in relation to the medial compartment associated with varus deformity of the knee and degenerative changes in the patellofemoral joint.
CT Arthrogram of the left shoulder, 17 April 2015 - the report showed evidence of a large recurrent tear of the supraspinatus.[44]
[44] AD2 p 495.
Ultrasound of the right shoulder, right hip and right knee of 6 August 2015 – the report concluded:
“1. There is right subacromial bursitis causing impingement.
2. There is right trochanteric bursitis.
3. There are degenerative changes in the right knee joint with an effusion.”[45]
[45] AD2 p 130.
X-ray of the right shoulder, 19 November 2015 – the report concludes:
“The glenohumeral joint is not dislocated. There is marked irregularity at the greater tuberosity and superior subluxation consistent with chronic rotator cuff changes. There is type III acromion but no significant degenerative change at the acromioclavicular joint.”[46]
[46] AD2 p 202.
Ultrasound of the right shoulder, 19 November 2015 – the report concludes:
“Medially displaced long head of biceps consistent with tear of the subscapularis. Full thickness supraspinatus tear with subacromial bursitis causing impingement on abduction.”[47]
[47] AD2 p 202.
X-ray of the right knee and ankle, 28 April 2016 – the report states at the right knee there was evidence of lateral joint space loss with marginal osteophytosis, a small suprapatellar knee joint effusion. The report notes productive change to the quadriceps attachments and a fabella. There was no evidence of acute fracture, avulsion or dislocation.[48]
[48] AD2 p 489.
MRI of the right hip and right knee, 27 April 2016 – the report concludes:
“There is marked derangement of the knee with acute on chronic injury to ACL with near complete rupture. Chronic tear of the lateral meniscus with resorption of the anterior horn. Extensive degenerative changes most pronounced in the lateral tibiofemoral compartment with extrusion of the body of lateral meniscus. Knee joint effusion extending to suprapatellar bursa. Signal deep to ITB at the lateral aspect of the hip but normal iliotibial band most likely secondary due to haematoma. Early degenerative changes of the hip joint with degenerate labrum and cartilage delamination.”[49]
[49] AD2 pp 128 and 490.
MRI scan of the right shoulder, 23 June 2017 – revealed a full thickness tear of the supraspinatus tendon with retraction of the tendon to the level of the glenoid. The tear involved the entire AP dimension of the supraspinatus. A leading edge subscap tear was also noted.[50]
[50] AD2 p 494.
X-ray right knee and right hip, 24 April 2021 – demonstrated the contour of the right hip was normal. The report of the right knee states
“There is loss of joint space in the lateral tibiofemoral compartment. Small tibial and femoral osteophytes are present. The patellofemoral joint appears normal. There is no significant joint effusion.”[51]
[51] AD2 p 502.
MRI of both shoulders and X-ray of right shoulder, 4 May 2021 – the report concludes
“Radiographic and MRI assessment of the right shoulder demonstrates rupture of the supraspinatus and infraspinatus with decentering of the humeral head. The biceps had dislocated medially. The chondral surfaces of the joint are preserved.”[52]
[52] AD2 p 492.
MRI of both shoulders and X-ray of left shoulder, 4 May 2021 – the report concludes “Complete rupture of the supraspinatus and infraspinatus with complete fatty atrophy of the muscle bellies. The chondral surfaces of the joint are preserved.”[53]
Surveillance
[53] AD2 p 493.
The insurer relies upon a Quantumcorp surveillance report dated 25 November 2019 in respect of surveillance undertaken over 74.5 hours on 11, 12, 13, 14 and
15 November 2019.[54] Approximately 133 minutes of film was exposed.[54] AD2 p 322.
The claimant was observed to be at his place of employment, the post office, for at least nine hours on 11, 12, 14 and 15 November 2019. Mr Shah was observed carrying a shopping basket in his left hand, bending over at the waist, retrieving, and carrying packs of meat, carrying two bags of items and lifting a 5kg bag of dry dog food into and out of the boot.
Mr Shah was observed to walk with no apparent restriction and on other occasions to walk with a prominent limp to his right leg.The insurer relies upon a Quantumcorp surveillance report dated 31 December 2019 in respect of surveillance undertaken over 58 hours on 16, 17, 18, 19 and 20 December 2019.[55] Approximately 73 minutes of film was exposed.
[55] AD2 p 368.
The claimant was observed to be at his place of employment for at least nine hours on 11, 16, 17, 18, 19 and 20 December 2019. Mr Shah was observed to push a shopping trolley and undertake grocery shopping. He was able to bend at the waist frequently and to reach up to higher shelves and bend to obtain items from lower shelves. He was able to carry two bags of unknown weight to and from his vehicle and the post office and also carry bags of groceries to his car. No sign of restriction of either shoulder was noted although the claimant was not observed to conduct any overhead tasks.
Again, Mr Shah was noted to walk without restriction on some occasions but displayed a prominent limp to his right leg on others. He was observed to drive to and from work over a period of about 40 minutes.
The insurer relies upon a Quantumcorp surveillance report dated 10 August 2020 in respect of surveillance undertaken over 73.25 hours on 20, 21, 22, 23, 24 July 2020 and on 1 and
2 August 2020.[56] Approximately 73 minutes of film was exposed.[56] AD2 p 442.
Mr Shah was observed to attend the post office on Monday, 20 July 2020 for 8 hours and 17 minutes; Tuesday, 21 July 2020 for 4 hours and 2 minutes; Wednesday, 22 July 2020 for 8 hours and 6 minutes; Thursday, 23 July 2020 for 8 hours and 24 minutes; and Friday, 24 July 2020 for 8 hours and 22 minutes. He was observed to walk with no sign of restriction. He was observed grocery shopping, pushing a trolley, bending at the waist, reaching up to high shelves and bending down to low shelves. He was observed loading groceries into the boot of his car. He was also observed carrying two bags of items to and from his vehicle with no apparent restriction.
Medico-legal reports
Dr A. Isaacs, orthopaedic surgeon
Dr Isaacs assessed Mr Shah on 3 September 2018 and provided a report dated
18 September 2018.[57] He reported pain in the left shoulder, right shoulder, right hip and right knee. Mr Shah was no longer bothered by pain in the cervical spine. He reported Mr Shah was taking Voltaren and Panadeine Forte for pain.[57] AD3 p 36.
Dr Isaacs reported Mr Shah’s physical ability to perform physical work was badly affected, he found it difficult to stay in one position for a prolonged period and his sleep was affected. At that time Mr Shah needed help with showering and dressing.
Dr Isaacs noted Mr Shah had undergone an arthroscopic repair of the left shoulder, but his symptoms had not improved.
Dr Isaacs concluded Mr Shah had suffered from aggravation of osteoarthritis of the right hip and right knee and a rotator cuff injury/impingement of both shoulders.
Dr Isaacs assessed a 17% WPI in respect of injury to both shoulders. He did not assess the right knee and right hip because he considered further treatment meant the claimant’s condition had not stabilised.
Dr Isaacs reviewed the claimant on 23 July 2019.[58] He reported the symptoms in the right hip and right knee had worsened. His disabilities affecting work, home and extra-curricular activities remained unchanged.
[58] AD3 p 45.
Dr Isaacs assessed a 22% WPI for the right knee and right hip.
Dr Brian Noll, orthopaedic surgeon
Dr Noll assessed Mr Shah for the insurer and provided a report dated 3 May 2016.[59] He reported Mr Shah complained of ongoing symptoms in relation to both shoulders and in relation to the right hip and right knee. However, in the absence of the clinical notes from the GP, Dr Noll was not satisfied there was a clear indication of the causal relationship between the claimed injuries and the accident.
[59] AD2 p 285.
Dr Noll provided a supplementary report dated 23 September 2016 after he was given an opportunity to review additional documents.[60] Dr Noll notes that the contemporaneous records of Dr Jones refer to injuries to the neck and left shoulder but make no mention of symptoms in relation to the right shoulder, right hip or right knee. Dr Noll concluded the documentation failed to establish any causal relationship between the onset of symptoms in relation to the right hip, right knee and right shoulder for some 18 months after the accident. He concluded complaints in those regions were unrelated to the accident.
[60] AD2 p 292.
Dr Noll reviewed the claimant and provided a report dated 31 October 2017.[61] Dr Noll reported markedly restricted bilateral shoulder movements.
[61] AD2 p 296.
Dr Noll also recorded the following range of movement of the hips:
Hip Movement
Right
Left
Flexion
100º
120º
Fixed flexion
Nil
Nil
Internal Rotation
10º
20º
External rotation
30º
60º
Abduction
20º
50º
Adduction
10º
20º
Dr Noll also noted the range of movement of the right knee was from 0º to 130º and the left knee from 0º to 145º. He noted mild right patellofemoral crepitus and observed the collateral and cruciate ligaments were intact on testing. Dr Noll reported normal lower extremity sensation and normal muscle strength on clinical testing. He noted no obvious muscle wasting and no significant discrepancy between the two sides.
Dr Noll concluded Mr Shah sustained a soft tissue strain type injury of his neck and an injury to his left shoulder. He concluded the evidence was equivocal as to whether the claimant had sustained an injury to his right shoulder. He concluded the complaints in relation to the right hip or right knee were not casually related to the accident.
Dr Noll provided a supplement report dated 14 December 2017 after reviewing the enclosed clinical records of Dr Jones and the report of Dr Bateman dated 5 July 2017.[62] He agreed with Dr Bateman that a reverse right shoulder arthroplasty was reasonable and necessary but given the lack of contemporaneous evidence concluded the need for that procedure was not causally related to the accident. He reiterated his opinion that the complaints in relation to the right hip and right knee were not related to the accident.
[62] AD2 p 304.
Dr Noll provided a reported after reviewing Mr Shah on 29 July 2019.[63] He reported ongoing symptoms in relation to both shoulders and in relation to his right hip and right knee. He reported he was only working approximately five hours per day undertaking administrative duties and avoids any strenuous activities. Dr Noll reported the following complaints:
· constant pain and a very limited range of movement in relation to the left shoulder;
· similar symptoms in relation to the right shoulder;
· constant pain in the right knee and a limited range of right knee movement, and
· inability to stand for more than about 15 minutes at a time because of pain in the right hip and right knee.
[63] AD2 p 308.
Dr Noll reported there was evidence of mild shoulder girdle muscle wasting bilaterally. He noted shoulder movements were markedly restricted.
Dr Noll also noted Mr Shah had a variable restricted range of movement of his right hip and right knee. He also noted the range of movement achieved in the recumbent position differed from the range of movement achieved in the sitting position. He recorded the following range of movement of the hip joint in the recumbent position measured with a goniometer:
Hip Movement
Right
Left
Flexion
30º
120º
Fixed flexion
Nil
Nil
Internal Rotation
10º
20º
External rotation
20º
60º
Abduction
20º
50º
Adduction
10º
20º
Dr Noll also noted evidence of right thigh muscle wasting with the right thigh being 2cm less than the left on circumferential measurement.
Dr Noll’s opinion as to causation remained unchanged. He accepted Mr Shah would have difficulty with strenuous use of his upper extremities or overhead activities. He assessed a 19% WPI in relation to right upper and left upper extremity impairment. He accepted causation of the right shoulder only because of the findings of Medical Assessor Ashwell.
Dr Noll provided a supplementary report dated 8 November 2019 where he was asked to express his own opinion as to causation of the right shoulder injury.[64] He expressed the view the right shoulder disorder was not causally related to the accident and reviewed his assessment of WPI to 10% arising out of injury to the left shoulder only.
[64] AD2 p 318.
Dr Noll provided a supplementary report dated 19 January 2020 after reviewing the surveillance footage.[65] He was of the view that the observed ranges of spontaneous shoulder movement bilaterally exceeded the ranges demonstrated on formal examination on
29 July 2019.[65] AD2 p 438.
The claimant was noted to carry out numerous activities including lifting and carrying requiring spontaneous use of both upper extremities, without any obvious evidence of difficulty or discomfort.
Dr Noll assessed 6% WPI of the left shoulder, whilst he was of the view the right shoulder, right hip and right knee were not causally related to the subject accident.
Dr Seamus Dalton, rehabilitation physician
Dr Dalton assessed the claimant for the insurer and provided a report dated
16 December 2021.[66][66] AD2 p 416.
Dr Dalton recorded Mr Shah had not had any treatment for the last six years other than taking Panadeine Forte and Voltaren and an occasional massage. Mr Shah reported that his right hip and right knee had become steadily more painful and limited his mobility.
Dr Dalton reported examination of both shoulders revealed significant restriction of active and passive glenohumeral range of motion, but this was variable with inconsistencies noted and there was clear evidence of muscle guarding and co-contraction. He noted irritability on provocation testing of the rotator cuff, particularly of the left shoulder.
Dr Dalton reported that the claimant’s considerable guarding and muscle co-contraction could be considered a manifestation of pain avoidant behaviour and may reflect the fact that the claimant has received limited rehabilitation or physiotherapy,
Dr Dalton viewed the surveillance reports and stated Mr Shah is seen lifting, reaching and carrying items with both arms and demonstrating greater upper limb mobility and function that he has reported to treating doctors and was evident at the time of the assessment. He concluded the surveillance footage was consistent with his observation that Mr Shah demonstrated significant inconsistencies in his clinical presentation.
Dr Dalton concluded Mr Shah suffered a whiplash injury to the cervical spine. He concluded Mr Shah had a pre-existing degenerate left rotator cuff tear but noting there was no indication of left shoulder pain or dysfunction prior to the accident found that the soft tissue injuries sustained in the accident resulted in aggravation of the pre-existing rotator cuff tear.
Dr Dalton found there was no evidence to show Mr Shah suffered an injury to his right hip and knee in the accident. Whilst he may have suffered a minor soft tissue injury to the lateral aspect of the hip based on the mechanism of injury it would not account for the hip pain and limited mobility which is attributed to the underlying osteoarthritis of the hip. Dr Dalton found that the imaging of the knee showed longstanding pathology suggesting previous internal derangement of the knee with evidence of osteoarthritis.
Dr Dalton provided a supplementary report dated 16 December 2021.[67] He found no impairment of the cervical spine arising from the accident. He did not consider there was any impairment of the right hip or right knee attributable to the accident. He did not consider Mr Shah suffered trochanteric bursitis as a result of the accident. Dr Dalton concluded he could not make an assessment of impairment in relation to the shoulders where there was inconsistency and behavioural confounders.
[67] AD2 p 436.
Dr John Korber, radiologist
Dr Korber reviewed the radiology and provided a report dated 6 September 2021.[68] In respect of the ultrasound of the right hip dated 8 June 2015, Dr Korber indicated that he did not believe this to be a diagnostic study. The symptoms related to the greater trochanter are clinical and not an ultrasound diagnosis. Dr Korber noted that greater trochanteric symptoms are extremely common and are usually not related to injury. If there had been a significant injury by direct impact to the right greater trochanter, he would expect both the hospital and the ambulance to have diagnosed same.
[68] AD2 p 407.
In respect of the X-ray of the right shoulder dated 19 November 2015, Dr Korber opined that this demonstrated a markedly abnormal greater tuberosity in keeping with chronic rotator cuff change. He confirmed those changes take a long time to occur.
In regard to the scans dated 6 August 2015, Dr Korber opined that the claimant had long established full thickness rotator cuff tears bilaterally with supraspinatus retraction. Acute tears have a different presentation and appearance with a tear through visible tendons.
Dr Korber opined that it was not possible to say the claimant had not extended a tear, however, he had no doubt there had been a pre-existing tear with retraction in both shoulders.
SUBMISSIONS
Insurer’s submissions
Submissions dated 26 July 2022
The insurer provided submissions dated 26 July 2022 addressing the question to be determined by the Delegate.[69] The following submissions are relevant to the substantive dispute:
[69] AD2 p 4.
(a) the opinion of Dr Korber is important in considering the radiological imaging given the interaction between arthritis and osteoarthritis;
(b) Dr Noll amended his opinion after reviewing the surveillance footage;
(c) Dr Dalton observed inconsistencies upon examination;
(d) the surveillance footage demonstrated the claimant performing activities which were beyond the range of motion observed when assessed;
(e) the surveillance footage depicted the claimant undertaking activities such as carrying bags and parcels with each hand, without obvious difficulty, and putting them into and taking them out the boot of a car;
(f) Dr Noll noted that the claimant elevated his shoulder to at least 70 degrees, when lifting a moderately large bag into the boot of his car with one hand on
11 November 2019;(g) on 12 November 2019, the claimant was again noted to elevate his right shoulder to at least 70 degrees when opening the boot of his car;
(h) on 15 November 2019, the claimant elevated his shoulder to 100 degrees when opening the boot of his car;
(i) on 16 December 2019, the claimant’s forward flexion of his right shoulder was at least 120 degrees when reaching up towards a glass door;
(j) Dr Noll confirmed the surveillance footage demonstrated the claimant abduct his shoulder to 90 degrees on 13 November 2019, when standing adjacent to a motor vehicle, and to approximately 130 degrees on 19 December 2019, when standing adjacent to a motor vehicle, and
(k) the range of motion readings taken by Medical Assessor Harrington, contrast with the range of motion demonstrated by the claimant in the surveillance footage. For example, Medical Assessor Harrington measured the right shoulder forward flexion at 90 degrees, where on 16 December 2019, the claimant demonstrated 120 degrees. It is also noted that Medical Assessor Burns had previously assessed 80 degrees on right shoulder forward flexion.
The insurer provided the following table to highlight the varying ranges of motion demonstrated by the claimant:
Submissions dated 11 May 2022
The insurer provided submissions dated 11 May 2022.[70] These submissions address the admissibility of various records sought to be relied upon by the insurer in the dispute before Medical Assessor Harrington.
Submissions dated 12 January 2022
[70] AD2 p 35.
The insurer also provided submissions dated 12 January 2022.[71] The insurer referred to the decision of Fagan J in QBE v Shah [2021] NSWSC 288 and noted his Honour observed there was:
“…no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”
[71] AD2 p 25.
The insurer notes the claimant had not claimed he suffered an impact to his left shoulder or any force to his left arm which might have been transmitted to the shoulder. His Honour stated:
“Even if the first defendant’s arms had been braced in a stiff straight ahead fashion prior to the rear end impact, the forces of that impact would have accelerated the vehicle forward and pressed the first defendant back into his seat. It would have reduced any bracing forces of his arms upon his shoulders, not increasing it. The subsequent collision with the car in front is described as having occurred immediately after the rear impact, as would be expected. It has not been suggested by the first defendant that he rearranged himself to brace his arms prior to the second, front end impact. On the contrary, the first defendant describes having been thrown to the right side by the initial collision.”
The insurer notes his Honour was critical of the findings of Dr Bateman. His Honour noted that
“Dr Bateman’s opinion on causation did not address the timeline of such a change in the head of the humerus, nor does it address any conflict between the timeline and
Dr Bateman’s pronouncement that the full thickness tear of the supraspinatus tendon had occurred only two weeks before the ultrasound.”His Honour further suggested that the report of 19 January 2015 following the arthroscopic rotator cuff repair
“…make it all the more notable that Dr Bateman has never described any scientifically supportable mechanism of how the damage to the first defendant’s left rotator cuff tendons could have been caused or exacerbated by the accident.”
The insurer also notes those comments of his Honour at paragraph 21 of the judgment, and his further observations on Dr Bateman’s findings:
“So far as it appears from the evidence tended in this court, the proposition that the first defendant had ‘a normal [right] shoulder prior to the accident’ depends entirely on the first defendant’s assertions regarding his pre-accident condition. Dr Bateman’s claim that the first defendant ‘documented’ that the right shoulder was ‘injured in the accident’ is unsupported by any document tended in this proceeding. The highest support for this appears to be Dr Bateman’s acceptance of the first defendant’s self-report of no pre-accident shoulder symptoms, together with Dr Bateman’s own unreasonable assertions of causation.”
The insurer submitted his Honour also noted that in a report of 8 December 2015, it was indicated that Dr Bateman had diagnosed the rotator cuff tear of the right shoulder when he first saw the first defendant on 7 April 2014. However, his Honour considered that was not correct.
The insurer also noted his Honour was critical of the certificate of Medical Assessor Ashwell, in that it was devoid of any biomechanical, anatomical, orthopaedic or other scientific reasoning to support the “putative traumatic causation of the first defendant’s rotator cuff tear to the right shoulder”. Rather, his Honour considered that Dr Ashwell’s conclusion rests on nothing more than the first defendant’s denial of any pre-accident symptoms. The doctor
“offers no reconciliation of his view with the absence of complaints of right shoulder symptoms at the first consultation with Dr Jones; or the absence of any radiological indication of intended damage at any time prior to the ultrasound of 6 August 2015,
18 months post-accident.”The insurer notes the claimant attended Charlestown Medical and Dental Centre on nine occasions between 11 September 2019 and 12 July 2021. In that period he:
· made no report of left shoulder symptoms;
· made no report of right shoulder symptoms;
· attended on 30 October 2019 requesting pain relief for his knees but did not attend again until 27 May 2020;
· did not consult a doctor between 27 May 2021 and 10 February 2021;
· on 31 March 2021 the claimant stated the video footage obtained by Quantumcorp misrepresented his condition;
· on 4 May 2021 the claimant sought a referral to Dr Geoffrey Workman. A letter to Dr Workman of 4 May 2021 stated the claimant had “essentially normal x-rays of his right knee”;
· only made one complaint of hip pain, on 30 October 2019 when he requested pain relief, and
· a letter of referral to Dr Geoffrey Workman of 4 May 2021 stated the claimant has “essentially normal x-rays of his right hip”.
The Medicare and PBS records confirm the claimant was supplied Diclofenic on
30 October 2019, 27 March 2020, 2 June 2020 and 17 February 2021 and Paracetamol and Codeine on 17 February 2021.The claimant only attended Dr Jones on nine occasions between 21 August 2019 and
31 March 2021.The insurer submits nine attendances and five prescriptions for pain relief in a two and half year period is inconsistent with the claimant’s report of painful injuries.
The insurer submits that surveillance for the week commencing 11 November 2019 and the week commencing 16 December 2019 shows the claimant consistently working in excess of nine hours a day over a five day working week. The insurer notes the claimant stated he was only capable of working five hours a day on limited administrative duties.
The insurer notes the surveillance shows the claimant carrying grocery items with both arms, bending over, pushing a trolley and carrying heavier items. This is inconsistent with the claimant’s report to Dr Dalton that he struggled to reach and elevate either arm due to limited mobility in his shoulders and would not carry bags of groceries.
The insurer refers to the surveillance report of Quantumcorp dated 10 August 2020. The claimant was observed to work 37.11 hours over five separate weekdays at his Australia Post business. He was seen lifting bags from the boot of his car and carrying them into the post office. He was seen at Woolworths and Aldi where he was seen to push a shopping trolley, bend over, reach up to higher shelves and generally display a free and unrestricted range of movement of both shoulders.
The insurer notes the surveillance shows the claimant walking with no sign of restriction in the right leg, to stand for over 15 minutes and to drive for 1.5 hours, noting he told Dr Dalton he could not drive for longer than 40 minutes.
The insurer submits the test of consistency must be applied pursuant to cl 1.41 of the Guidelines. The insurer notes both Dr Dalton observed inconsistencies in the claimant’s bilateral shoulders and right leg during examination and Dr Noll found the activities depicted by the surveillance footage were not consistent with the level of impairment demonstrated by the claimant on examination.
The insurer also notes that Medical Assessor Burns observed the claimant sitting comfortably with a significantly greater range of movement than on testing. He also commented on the surveillance footage which displayed greater flexion in both hips than observed on formal examination.
Submissions dated 4 November 2019
The insurer also provided submissions dated 4 November 2019 in respect of the substantive dispute.[72]
[72] AD2 p 19.
The insurer notes the pre-accident right shoulder complaint to Dr Carpenter on
6 January 2003 and the pre-accident complaint of pain in the right knee recorded by
Dr Carpenter on 12 December 2005.The claimant denied any symptoms beyond injury to the neck with some radiation at John Hunter Hospital following the accident.
General practitioner attendances on 15 February 2014, 20 February 2014 and
22 February 2014 do not refer to the accident. On 22 February 2014 Mr Shah reported the accident but complained of a sore neck and left shoulder symptoms only.The insurer notes there was no complaint re the right shoulder at John Hunter Hospital. An X-ray of 7 April 2014 was normal, although on the same date Dr Bateman reported the claimant had sustained bilateral shoulder injuries. No further treatment for the right shoulder was sought until 2015.
The insurer submits the pathology detected on the imaging in respect of the right shoulder is not causally related to the accident because:
·the delay in reporting any symptoms in the right shoulder;
·the pathology in the scans suggest age related degenerative changes, and
·even where the accident may have aggravated underlying degenerative pathology, there were no reports of those symptoms for six weeks post-accident which is inconsistent with an aggravated injury.
The insurer submits the right hip injury is not causally related to the accident because:
·the delay in reporting any symptoms in the right hip;
·the first report of any right hip symptoms was in October 2014, eight months following the accident, and
·the first radiological investigations of the right hip were not undertaken until
6 August 2015.The insurer concedes the claimant injured his left shoulder and notes he has undergone a partially successful left rotator cuff repair but does not concede any impairment of the left shoulder exceeds 10% WPI.
The insurer also questions causation of the right knee injury noting the first mention of any knee problem is in the report from Dr Bateman to Dr Jones dated 20 April 2015.
Investigations of the right knee were not undertaken until September and October 2015.
The insurer relies upon the opinion of Dr Noll who concluded any injury to the right shoulder, to the right hip or right knee is not causally related to the accident.
Claimant’s submissions
Submissions dated 30 August 2022
The claimant’s submissions dated 30 August 2022 address the question to be determined by the President’s delegate, that is, whether the certificate of Medical Assessor Harrington was incorrect in a material respect.[73]
[73] AD3 p 3.
Submissions dated 8 February 2022
The claimant’s submissions dated 8 February 2022 address the admissibility of various records sought to be relied upon by the insurer in the dispute before Medical Assessor Harrington.
MEDICAL EXAMINATION
Mr Shah was examined at the Commission’s medical suite on 20 March 2023 by Medical Assessors Couch and Barnsley. The assessment commenced at 11.30am and was completed at 1.55pm.
At the outset of the assessment the purpose of the assessment was discussed. It was explained that the consultation did not have the same confidential components as therapeutic medical consultations, and that the assessors would be offering no treatment or advice to Mr Shah. The assessment was explained in terms of the types of questions that would be asked and the anticipated extent of the physical examination. It was also explained that inconsistencies between documentation, his presentation and other observations would be put to him to provide him with the opportunity to account for the inconsistency. The following history was then obtained from Mr Shah.
Past medical history
Prior to the accident Mr Shah had hypertension for which he was being treated with Accuretic. He denied any prior problems with pain in his shoulders, knees or hips. He did explain that he had a brief episode of pain in his knee some years ago which only lasted a day or so, and which he reported to his GP Dr Carpenter.
History of the accident
On 14 February 2014 he was the driver and sole occupant of a Toyota Corolla sedan. He was wearing a seatbelt. He was stationary behind another car which was at a red light. He described being hit “square on” by a vehicle fitted with a bull bar behind him. The impact was unexpected. His vehicle was shunted into the car in front, but his airbags did not deploy. The impact was considerable, and he described the boot of his vehicle being crushed into the back seat of his car. He initially reported being “knocked out” for 10-25 seconds. He claimed he recalled being flung to the right after the initial impact, hitting his right hip, right shoulder and right knee on the inside of the car. There was never any bruise, abrasion or swelling at any of these sites. When questioned as to how he could recall such detail if he was unconscious, he clarified that he was not unconscious but “in shock” after the initial impact. He had no recollection of the movements of his left arm and does not recall any direct impact of his left arm with anything in the car. He was able to self-extricate from the car, and then lay on the ground.
He stated he had immediate onset of pain in both shoulders, his lateral right hip region, and the right knee. He was transported to John Hunter Hospital. He stated he notified the medical officer at the hospital of all his areas of pain, specifically both shoulders, the right knee and the lateral hip. He was assessed and discharged home on analgesics. No imaging studies were performed.
He saw his local doctor one week later. He indicated that he had mentioned having pain in both shoulders, the right knee and right hip. He was referred for imaging studies of the left shoulder, which he said had the most acute pain. He also had X-rays from 5 April 2014 of his right shoulder and pelvis (covering both hips) which he brought to the assessment today. These show some enthesopathic changes at the right lesser trochanter in the hip and similar findings at the right greater trochanter. The right shoulder demonstrates thickening and irregularity of the right greater tuberosity.
He was referred to Dr Bateman, an orthopaedic surgeon who further investigated the left shoulder, and Mr Shah came to surgery to repair his rotator cuff in 2015. He had some physiotherapy post operatively but described the pain as “never leaving” and he had “negligible improvement”.
Progress and current symptoms
Left shoulder
Mr Shah stated unequivocally that he had experienced debilitating left shoulder pain since the day of the accident accompanied by a persistent loss of movement with inability to lift the arms at the shoulder beyond a limited range. The pain is across the shoulder cowl with radiation down the upper arm. He said this pain had been uninterrupted over the last nine years as was the movement restriction. The pain is made worse by any movement of the shoulder, most typically flexion and abduction. It is worse at night and is associated with a persistent loss of movement in the shoulder. He understands that a total shoulder replacement is being contemplated for his pain.
Right shoulder
He stated that the right shoulder pain was also across the shoulder cowl with radiation down the arm. The pain had got worse over time but had also been constant since the accident with markedly restricted movement. The pain is made worse by any movement of the shoulder, most typically flexion and abduction. It is worse at night and is associated with a persistent loss of movement in the shoulder. He has been further investigated with X-rays and an MRI and understands that a total shoulder replacement is being considered.
Right hip
Mr Shah states that his hip pain is located immediately posterior to the right greater trochanter. It radiates down the upper third of the iliotibial tract. He claims that it has been present 24 hours a day since the accident. He has never had any anterior groin pain or anterior thigh pain (which is the typical site of pain arising from the hip joint). The pain is made worse by lying on the right side, sitting and standing. He has some difficulty putting on socks and shoes on the right foot, but the knee pain may contribute to this.
Right knee
Mr Shah claims to have had significant right knee pain since the accident. He had no bruising or swelling early on. The pain is over the lateral aspect of the knee and also over the site of the pes anserine bursa on the medial aspect of the upper tibia. He stated he has had a limp since at least 2016, and that his limp was bad and persistent by 2017-2018. He has had occasional swelling and a couple of episodes of acute pain precipitating the knee giving way, but he hasn’t fallen.
Mr Shah denied any other pain problems or symptoms which he associates with the accident.
Function
Mr Shah stated that despite the symptoms in his right leg he can drive safely for about an hour on the open road but is limited to about 15 minutes around town. He stated he can’t walk for more than about 10 minutes or stand for more than 15 minutes on account of his right lower leg symptoms.
He can carry about 2kg in each hand with his elbow flexed, and heavier bags with his arms straight down his side.
Treatment
Other than the post-operative physiotherapy, Mr Shah stated he has received little physical treatment. He has had no injections for his shoulders, knee, or greater trochanter. He attributed this to the insurance company “knocking back” his treatment requests. He indicated he was not aware he had the option to pay for these himself and stated he was just doing what his lawyers and doctors told him. He has regularly used Panadeine Forte for his pain, and used anti-inflammatory drugs, specifically Diclofenac and more recently Naproxen.
Examination findings
Mr Shah was pleasant and cooperative with the examination. He was 180cm tall and weighed 90kg. He walked with a slight limp and demonstrated very limited movement of his shoulders, leaving his arms by his side.
Shoulders
He has wasting of the left infraspinatus and supraspinatus muscles but no asymmetric deltoid wasting and no discernible wasting on the right side. He was tender over both supraspinatus insertions and over both anterior glenohumeral joint lines. On palpation of the scapulae during attempted abduction there was less scapulothoracic movement than would be expected. This would indicate some guarding of movements. There was palpable crepitus on movement of both shoulders, more on the left than the right.
Range of movement
Movements were measured with a goniometer to the maximum active range before they were limited by pain. Movement is reported in degrees.
Side Attempt Flexion Extension Abduction Adduction External rotation Internal rotation Right 1st 70 30 60 20 80 60 2nd 70 30 40 20 70 60 3rd 80 30 50 20 70 80 Left 1st 90 20 50 20 50 60 2nd 70 45 30 20 60 90 3rd 60 30 50 30 60 80
On other occasions, Mr Shah was noted to extend his shoulders when dressing to >50 degrees on both sides.
He had weakness of both infraspinatus and supraspinatus muscles, most notably the left infraspinatus, consistent with the visible wasting.
Hips
Mr Shah was tender over the right greater trochanter. He could sit in a normal chair. He could stand on either foot.
Range of Movement
This was measured with a goniometer. Movement is reported in degrees.
| Side | Extension | Flexion | Abduction | Adduction | Internal Rotation | External Rotation |
| Right | 20 | 100 | 40 | 30 | 20 | 50 |
| Left | 20 | 100 | 40 | 30 | 20 | 50 |
Thigh circumference measured 10cm proximal to the patella, was 45cm on the right and 46cm on the left. Calf circumference measured 10cm below the patella was, 40cm on the right and 39cm on the left. These measurements are both within measurement error indicating no asymmetry.
Knees
Mr Shah has a 10-degree valgus deformity at the knee on the right, and a 5-degree valgus deformity at the knee on the left. There is left patellofemoral crepitus and a small effusion detectable by bulge sign on the right side.
Range of movement is -5 (fixed flexion) to 120 degrees on the right and 0 to 140 degrees on the left.
INCONSISTENCIES
The Panel notes paragraph 1.41 of the Guidelines
“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
The following potential apparent inconsistencies were noted and put to Mr Shah.
History of the accident
It was reported by Mr Shah that he was in shock and “disoriented” by the impact, yet he could recall being flung to the right. Moreover, the impact was described by Mr Shah as “square on” which would not be expected to produce a force propelling him to the right. The panel could not find any previous record of his movements within the vehicle, specifically the alleged impact with the side door other than in the claim form dated 17 July 2014 where he stated, “my shoulders, back, neck and hip were thrown into different direction”.
Mr Shah responded that he was disoriented but not unconscious and that he thought it was a second impact from the vehicle behind that caused him to move to the right. He also stated that he was sore on the right so he must have hit the side door. When asked whether he was sore and, therefore, thought he must have hit the side of the car, or whether he had a recollection of hitting the side of the car he said “both”. He could not explain why it wasn’t mentioned elsewhere.
No specific injury to left shoulder
The Panel noted that there was no history of an impact, direct or indirect injury to the left shoulder.
Mr Shah stated that he thought it had been jarred by the impact but had no recollection of any impact or abnormal movement of the left arm.
Lack of mention of the accident in the GP’s notes between 14 February 2014 and
22 February 2014.
The panel noted that there was a Medicare rebated consultation with Dr Jones (MBS item number 05020) on 15 February 2014, the day after the accident, in which there was no mention of the accident or of pain. The panel explained to Mr Shah that they would have expected a significant injury to have been mentioned to his GP the day after it occurred. Mr Shah stated “I can’t recall”.
Absence of complaints of knee and hip pain in the John Hunter Hospital Record
The Panel noted that the hospital record did not mention any hip or knee pain, despite
Mr Shah stating he had mentioned this to them. Mr Shah said he didn’t know why it wasn’t mentioned, but the left shoulder pain was most acute.
Absence of mention of right shoulder, hip and knee pain in GP record of 22 February 2014
There was no contemporaneous record of complaint of right shoulder, hip and knee pain in the GP record of 22 February 2014, despite Mr Shah indicating he had told his GP about these complaints. No initial investigations were directed at these areas.
Mr Shah asserted he had mentioned these to his doctor, and he drew the Panel’s attention to the X-rays ordered of his right shoulder and hip in April 2014 as evidence that he had raised these symptoms.
Inconsistency between ranges of movement in the shoulders noted on surveillance videos and those formally measured.
The Panel, having reviewed the surveillance footage, confirmed there were multiple instances recorded on surveillance footage in which Mr Shah moved his arms above the horizontal, including abducting the right arm to approximately 110 degrees closing a car boot on 15 November 2019 and waving the left arm with the shoulder flexed beyond 120 degrees on 20 December 2019 and full flexion of the left shoulder reaching into a car boot on 20 December 2019. These were considerably more than the movements noted on formal examination by the Panel and other examiners.
Mr Shah initially disputed that the videos and stills showed his shoulder being flexed or abducted, arguing that he had reached up from his elbow. After reviewing these with the assessors, it was demonstrated that his hand was elevated far higher than would be possible with elbow flexion alone, and he conceded that the shoulder movements had taken place. He explained those movements were facilitated by the amount of medication he had taken on those days and when asked, he said he had taken medication prior to this assessment.
Inconsistency between complaints of limping since 2017 and normal gait observed in surveillance videos in 2019.
It was noted on the surveillance footage that Mr Shah was seen to walk without restriction on some occasions but displayed a prominent limp to his right leg on others. Mr Shah stated that the limp was getting progressively worse, and he may have had the dates wrong.
Inconsistency between the formally measured range of extension in the shoulders and that observed at other times during the claimant’s assessment
Mr Shah denied that he had extended his shoulders as far as the panel members observed and was otherwise unable to explain the inconsistency observed by various medical assessors and by the Panel on examination.
THE RELIABILITY OF THE CLAIMANT’S EVIDENCE
The Panel has some concerns about the reliability of the claimant’s evidence having regard not only to the lack of contemporaneous complaint in the records of treating practitioners but also having regard to the inconsistencies apparent on medical examination as highlighted by the insurer’s submissions and the inconsistencies demonstrated by the surveillance footage.
The Panel felt Mr Shah was convinced the current pain and disability he experienced in both shoulders, in his right knee and right hip were caused by the accident. This has given rise to discrepancy where the records do not necessarily support that conclusion.
CAUSATION
The Panel notes the line of authority which states that the presence or absence of a contemporaneous record of complaint is not determinative of the question of causation where what is required to be determined is whether the motor vehicle accident materially contributed to that injury.
In Norrington v QBE Insurance (Australia) Ltd[74] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[74] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[75] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
“busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
[75] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[76] where the Court stated 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.”
[76] [2016] NSWCA 229, McGiffen.
In QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 his Honour Justice Fagan considered the causal relationship between the accident and injury alleged by Mr Shah to have been sustained to both the left and right shoulder. His Honour stated as follows:
“[16] This report provides no orthopaedic or biomechanical explanation of how a ‘large full thickness tear of the supraspinatus’ tendon, or any tear of the infraspinatus, could have been caused to the first defendant’s left rotator cuff by the motor vehicle accident as described by him. Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes ‘whiplash’ to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.
[17] In descriptions of the accident given by the first defendant on various occasions he has never claimed that he suffered any impact to his left shoulder or any force to his left arm that might have been transmitted to the shoulder. He has never suggested that either arm was braced in such a manner that force would have been imparted through the arms to cause a sudden load on either shoulder. Even if the first defendant’s arms had been braced in a stiff, straight-ahead fashion prior to the rear end impact, the force of that impact would have accelerated the vehicle forward and pressed the first defendant back into his seat. It would have reduced any bracing force of his arms upon his shoulders, not increased it. The subsequent collision with the car in front is described as having occurred immediately after the rear end impact, as would be expected. It has not been suggested by the first defendant that he rearranged himself to brace his arms prior to the second, front end impact. On the contrary, the first defendant describes having been thrown to his right side by the initial collision.”
However, in Briggs v IAG Limited trading as NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[77] His Honour stated at [70] – [72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[77] Briggs [2022] NSWSC 372.
Injury to the left and right shoulder
In considering causation of injury to the left and right shoulder the Panel has had regard not only to the contemporaneous treating records, but also to the evidence of the claimant as to the circumstances of the accident, keeping in mind the Panel’s concern about the reliability of that evidence, and the expert medical opinion.
The Panel considered that there had been a complex accident with at least two impacts which appeared to be primarily along a single plane, without any evidence of a lateral force component that would have caused Mr Shah to be thrown to the right with any significant force. The only evidence of impact with the inside of the vehicle is Mr Shah’s own report on 20 March 2023, some nine years post-accident. Furthermore, there was no history of external injury to the affected areas, such as bruising, swelling or immediate complaints of pain verified by his treating doctors, which would have indicated significant injurious impact. The Panel prefers the more contemporaneous account contained in the claim form that his “shoulders, back, neck and hip were thrown into different directions”.
The Panel accepts there were two significant impacts at the time of the accident and noting the legal test of causation does not require scientific certainty finds the claimant did sustain injury to both shoulders where he:
(a) had no relevant history of pre-accident shoulder pain;
(b) complained of shoulder pain on palpation to the ambulance officers;
(c) complained of shoulder pain at John Hunter Hospital following the accident;
(d) informed Dr Jones on 22 February 2014 that he had a painful left shoulder with restricted movement;
(e) underwent early investigations arising out his left shoulder complaints, including an ultrasound on 3 March 2014 and an X-ray of the left shoulder on
3 March 2014;(f) underwent early investigations arising out of his right shoulder complaints including X-rays on 1 April 2014 and 5 April 2014 of the right shoulder;
(g) complained of bilateral shoulder injuries to Dr Bateman on 7 April 2014, and
(h) stated he had sustained injury to both shoulders in the Personal Injury Claim form dated 17 July 2014.
The Panel accepts the opinion of Dr Korber, radiologist, that the full thickness rotator cuff tears bilaterally with supraspinatus retraction were long established and were not caused by the accident. This finding is consistent with the “lack of orthopaedic or biomechanical explanation of how a “large full thickness tear of the supraspinatus tendon, or any tear of the infraspinatus, could have been caused” by the “square on” rear end collision. However, noting the consistency of complaint and having regard to the opinion of Dr Korber, the Panel accepts the accident could have and did cause an aggravation of the underlying rotator cuff pathology in both shoulders.
Injury to the right knee
The right knee pain is due to progressive, principally lateral compartment osteoarthritis as demonstrated on both X-ray and MRI scan and is consistent with his physical findings on examination by the Panel. This is a progressive, degenerative condition where pathology is present months or years before symptoms develop.
In accordance with cl 1.7 of the Guidelines the accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. An aggravation of osteoarthritis which is more than negligible would only be expected to arise from substantial articular injury, such as intra-articular fracture, ligamentous disruption, cartilage injury or capsular disruption. All of these would typically result from forceful impact, bending or twisting forces applied externally to the knee, and would typically occur whilst weight bearing. In the histories provided by the claimant he has not asserted that the accident exposed his knee to a forceful impact, bending or twisting force.
Such injuries would be expected to result in immediate pain and loss of function of the knee, and there is evidence that Mr Shah was able to freely mobilise after the accident in the ambulance records and there is no evidence of any significant knee injury recorded in the Hospital records.
Mr Shah had lateral compartment osteoarthritis in both knees. Whilst he referred to a sore knee in the claim form dated 17 July 2014 there is no other reported complaint of knee pain in the available records, other than the X-ray on 7 April 2014, until 20 April 2015, more than 12 months post-accident, when Dr Bateman suggested Mr Shah had injured his right knee in the accident. Indeed, the Panel notes Mr Shah also underwent an X-ray of his left knee on 7 April 2014, consistent with the diagnosis of bilateral knee osteoarthritis.
In the absence of evidence of a substantial articular injury or evidence of any forceful impact, bending or twisting of the right knee, the Panel therefore finds that the accident could not have and did not cause or contribute to the worsening of the impairment where the accident was not more than a negligible cause of the lateral compartment osteoarthritis in both knees.
Injury to the right hip
The Panel notes there was no recorded complaint of pain or injury to the right hip to the ambulance officers, to John Hunter Hospital, to Dr Jones on 22 February 2014 or in the letter of referral to Dr Bateman. Dr Jones does not record any complaints pertaining to the right hip until 30 October 2015 when he reported Mr Shah was in a lot of pain in his, inter alia, right hip.
However, the Panel notes Mr Shah underwent an X-ray of the right hip on 5 April 2014 on referral from Dr Bateman although there does not seem to be any further reference by Dr Bateman to the right hip until 20 April 2015, over 12 months post-accident.
The Panel considered that the site of pain, the nature of the symptoms and the physical examination, as well as the relevant imaging leads to the diagnosis of persistent greater trochanteric bursitis.
The Panel notes that the claimant recalls striking the right hip on the interior of the vehicle. However, the Panel notes that this is not corroborated in any other source. Even if such impact had occurred and was sufficient to cause local soft tissue injury to the greater trochanteric region, the expected pathology would be local bruising, rather than a tear or tendinopathy, and would be an unlikely cause of chronic greater trochanteric bursitis, as noted by Dr Korber.
The Panel therefore considers that the greater trochanteric bursitis could not have been caused by the motor vehicle. The Panel also noted that the patient has diabetes, which is a known risk factor for tendinopathy and bursitis.
ASSESSMENT OF PERMANENT IMPAIRMENT
Injury to the left and right shoulder
The Panel has found the accident caused an aggravation of the underlying rotator cuff pathology in both shoulders.
In accordance with cl 1.50.5 of the Guidelines the Panel does not consider that the shoulders can be assessed by range of movement due to inconsistencies in shoulder movements noted between assessors, between assessors and video surveillance, and during the Panel’s examination. Furthermore, if the problem in the shoulders were primarily rotator cuff pathology, as revealed on the imaging studies, he would not be expected to have the global restriction of movement apparent on examination.
In the absence of a reliable measure of range of motion the panel conducted the impairment assessment of the shoulders based on “Joint Crepitation with Motion” as per pages 58-59 of the AMA 4 Guides noting that the Panel did find palpable crepitus on movement in both shoulders. The most appropriate finding used to calculate assessment in this case was considered to be crepitus of the acromioclavicular joint. Table 18 states that the maximum possible impairment in relation to the acromioclavicular joint is 15% WPI. The Panel classified the observed crepitus in each shoulder as “Moderate: constant during active range of motion”, as per Table 19 which give rise to a 20% joint impairment. To assess WPI it is necessary to calculate 20% of 15% (from Table 18) giving rise to a 3% WPI for each shoulder. These impairments are combined to give a total of 6% WPI.
PANEL DECISION
The Panel finds that the accident was a cause of the following injuries:
· injury to the left shoulder, and
· injury to the right shoulder.
The Panel finds the accident did not cause the following injuries:
· injury to the right knee, and
· injury to the right hip.
The Panel finds that the following injuries give rise to a permanent impairment:
· injury to the left shoulder, and
· injury to the right shoulder.
The Panel finds that the degree of permanent impairment of the injuries caused by the accident is 6% WPI.
0
9
0