QBE Insurance (Australia) Limited v Turner
[2025] NSWPICMP 66
•6 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Turner [2025] NSWPICMP 66 |
CLAIMANT: | Paul Turner |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 6 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant involved in motor accident on 6 June 2019; claimant fell off his motor cycle when trying to avoid a collision with the insured vehicle; where the claimant was observed to roll and tumble on the roadway for about 20 metres; whether injuries to lower back and neck were caused by the accident; fracture of the right humerus; fracture of the left wrist; injuries to right knee, and chest; re-examination; assessment of permanent impairment; where the Review Panel assessed a higher degree of permanent impairment (18%) than the original assessment (12%); Held – original assessment of 12% revoked and replacement certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Home dated 7 June 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (18%): · cervical spine; · lumbar spine; · left wrist; · right shoulder; · right knee, and · scarring. |
STATEMENT OF REASONS
BACKGROUND
On 6 June 2019, the claimant, Paul Turner, was involved in a motor accident when he fell off his motorcycle when trying to avoid a collision with a vehicle (insured by QBE) that had driven to the wrong side of the road into his path of travel.
The claimant claims that in the accident, he sustained injuries to his lower back, neck, right shoulder, right knee, left wrist, left hip and chest.
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for damages, the claimant pursued damages for non-economic loss.
According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant’s injuries caused by the accident, had crossed that threshold.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Alan Home for assessment.
On 7 June 2023, the Medical Assessor issued a certificate, certifying that the injuries gave to a permanent impairment of 12%.
THE REVIEW APPLICATION
On 3 July 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. The review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Drew Dixon, Medical Assessor Michael Couch and Member Maurice Castagnet (the Panel).
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.[2]
[2] 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. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor found that the claimant sustained the following injuries, caused by the accident:
· cervical spine - soft tissue injury;
· lumbar spine - soft tissue injury;
· chest - soft tissue injury;
· right shoulder - fracture of the humerus and avascular necrosis of the humeral head;
· right knee - soft tissue injury;
· left wrist – triangular fibrocartilage tear, and
· skin - scarring to the left wrist and right knee.
The Medical Assessor found that there was no injury to the left hand or left thumb caused by the accident beyond the left wrist injury.
The Medical Assessor noted that the claimant reported that neck and low back pain commenced a week after the accident and that these complaints were not subject to early treatment due to his apparent orthopaedic shoulder, wrist and knee injuries. The claimant reported that he received chiropractic treatment to manage his symptoms of neck and back pain and that did not provide any durable benefit.[9]
[9] Page 4 of the Medical Assessor’s certificate.
The Medical Assessor assessed the injury to the cervical spine as DRE Category I giving rise to a whole person impairment (WPI) of 0%. He assessed the lumbar spine injury as consistent with DRE category II giving rise to a WPI of 5%.
The Medical Assessor assessed the scarring to the right knee as a WPI of 0% when applying the TEMSKI scale.
The Medical Assessor assessed a WPI of 5% for the right shoulder injury, 1% for the left wrist injury and 1% for the right knee injury.
Applying the Combined values chart, the Medical Assessor found that the claimant’s injuries caused by the accident, gave rise to permanent impairment of 12%.
MATERIAL BEFORE THE PANEL
The documents submitted to the Panel by the parties were:
(a) the claimant’s bundle of documents dated 2 May 2022 submitted to the Medical Assessor (129 pages);
(b) the insurer’s bundle of documents dated 30 May 2022 submitted to the Medical Assessor (194 pages);
(c) the claimant’s submissions dated 30 June 2022 submitted to the Medical Assessor;
(d) the insurer’s submissions dated 3 July 2023, submitted in the review application, and
(e) the claimant’s submissions dated 24 July 2023, submitted in the review application.
The Panel considered all the above material.
SUBMISSIONS
The insurer’s primary submission was that although the Medical Assessor identified there was no contemporaneous medical evidence of injury to the cervical and lumbar spine, he found that the accident caused these injuries and assessed the lumbar spine injury as giving rise to a WPI of 5%.
The claimant submitted that he reported his complaints of a sore neck and a sore back in his application for personal injury benefits on 17 June 2019. The Medical Assessor addressed those complaints when he indicated that these injuries were overshadowed by the other orthopaedic injuries.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel may conveniently be summarised as follows.
Pre-accident records
The clinical records of the general medical practice, Royal Medical Centre (the GP records) are before the Panel. They record treatment received by the claimant in the period October 2005 to March 2022. There was no evidence in those records of any treatment prior to the accident for any conditions or injuries relating to the injuries referred for assessment.
Post-accident records
According to the NSW Ambulance report, at the time of the accident, bystanders saw the claimant roll and tumble approximately 20m after he fell off his motorcycle.[10] The report recorded that at the scene of the accident, the claimant reported pain in his right shoulder, right ribs, left thumb and wrist. It was observed that he had bilateral knee abrasions. On arrival at the hospital, the claimant complained of left upper quadrant abdominal pain.[11]
[10] Page 36 of the claimant’s bundle.
[11] Page 36 of the claimant’s bundle.
According to the discharge referral from Liverpool Hospital, the claimant sustained a fracture of the right surgical neck of the humerus. The claimant was placed in a collar and cuff and discharged with analgesia and a recommendation for a follow up with orthopaedic surgeon, Dr Jay Dave.[12]
[12] Page 32 of the claimant’s bundle.
According to the GP records, the claimant initially attended the medical practice for treatment after the accident on 11 June 2019. It was recorded that the claimant reported that he attended Liverpool Hospital and was due for a follow up appointment with Dr Dave on
17 June 2019 for his right shoulder injury. He complained of left wrist pain, right knee pain and right chest pain. On examination, it was observed that he was wearing a collar and cuff, the chest was clear, there were abrasions on the right patella and the distal ulna, and the left wrist was tender. [13][13] Page 87 of the claimant’s bundle.
In his application for personal injury benefits dated 17 June 2019, the claimant described his injuries from the motor accident as follows:
“Broken right arm, injured left wrist, injured right shoulder, injured right upper rib, injured right knee, grazing left wrist & knees, sore back, neck and hips”[14]
[14] Page 3 of the claimant’s bundle.
The claimant was subsequently treated by Dr Dave, orthopaedic surgeon, Dr Alan T.T Dao and orthopaedic knee surgeon, Dr Quang Dao. The relevant history of those treatments has been considered by the Panel further below in these reasons.
Medicolegal evidence
The claimant was examined by orthopaedic surgeon, Associate Professor Michael Shatwell on 9 December 2021 at the request of the insurer.
In his report dated 26 December 2021, he found that a comminuted impacted fracture of the right proximal humerus was caused by the accident.[15] He noted that there was tendinosis of the rotator cuff in the right shoulder and osteoarthritic change in the acromioclavicular joint. He was of the opinion that these conditions were degenerative in nature and preceded the accident and were related to the claimant’s age, habitus and occupation.[16]
[15] Page 24 of the insurer’s bundle.
[16] Page 24 of the insurer’s bundle.
In regard to the left wrist, he was of the opinion that it was likely that the fibrocartilaginous complex was not injured in the accident and that it was more likely there were degenerative changes.[17] He was of the opinion that the need for shortening of the ulna is doubtful with regard to a sprain or strain of the left wrist caused by the accident. [18]
[17] Page 24 of the insurer’s bundle.
[18] Page 24 of the insurer’s bundle.
He was of the opinion that there was a soft tissue contusion of the right knee caused by the accident, but the changes seen on MRI are not related to the accident.[19]
[19] Page 24 of insurer’s bundle.
Associate Professor Shatwell assessed the right shoulder injury and the left wrist injury as giving rise to a permanent impairment of 6%. He believed there was no permanent injury caused to the right knee as a result of the accident.
On 11 April 2022 the claimant was examined by occupational physician, Dr Evan Dryson at the request of his lawyers.
In his report dated 21 April 2022, Dr Dryson was of the opinion that as result of the accident, the claimant sustained a fracture of the right neck of the humerus with secondary avascular necrosis, a tear to the triangular fibrocartilage of the left wrist, an aggravation of degenerative changes in the right knee and soft tissue injuries to the cervical and lumbar spine.[20]
[20] Page 23 of the claimant’s bundle.
Dr Dryson assessed the injury to the cervical spine as giving rise to a WPI of 5%, the lumbar spine injury as 5%, the right shoulder injury as 4%, the left wrist injury as 2%, the right knee injury as 4% and scarring as 2% WPI. His assessments resulted in a permanent impairment of 21% when the Combined values chart was applied. [21]
[21] Page 18 of the claimant’s bundle.
RE-EXAMINATION
On 19 February 2024, the claimant was re-examined by Medical Assessor Couch at the medical suites of the Commission. The claimant attended in person and was unaccompanied.
Pre-accident medical History and relevant personal details
The claimant said that he grew up in Lakemba in south-western Sydney. He left school partway through Year 11, having obtained his School Certificate. He described himself as an average or above-average student at school.
The claimant then completed an apprenticeship as an air-conditioning and refrigeration mechanic and continued working in this trade until the time of the accident. He had mostly done commercial work including a lot of high-rise buildings. Work included installation and servicing. He said that this was in general, heavy physical work. He has not been able to return to work since the accident.
The claimant is married with four adult children and five grandchildren. His wife works part-time.
When asked about his fitness levels prior to the accident, he said that he could outperform most people of his age. He described negotiating a lot of stairs in high rise buildings carrying heavy tool bags and using ladders.
In his leisure time, he enjoyed working on project cars, riding and repairing motorcycles, boating, fishing and camping. He had a 16-foot runabout which he used on the Georges River, Botany Bay or the Hawkesbury River.
He confirmed that he had been involved in a minor rear-end motor accident at the age of 18. He had some minor neck pain after this but only required one day off work and made a full recovery.
History of the motor accident
The claimant said he was riding his 650 cc motorcycle at about 50kmph wearing full protective gear. As he came over the crest of a hill, he saw an oncoming car entirely on his side of the road. He braked and swerved to the left and “high-sided”, describing being “sling-shotted onto the road”. (A “high-side” motorbike crash generally occurs when the rear wheel loses traction and then regains it suddenly, causing the motorbike to flip violently over to the opposite side. This can cause a rider to be launched into the air). The claimant recalled landing on his right side, then rolled onto his left hand, and slid along the road.
History of symptoms and treatment after the accident
The claimant was taken by ambulance to Liverpool Hospital.
The claimant recalled that, “they put me in a sling and kicked me out”. He thought he had only been in the emergency department for a relatively short period.
The claimant saw orthopaedic surgeon, Dr Jay Dave, about two months after the accident. In a report dated 12 August 2019, Dr Dave stated that the repeat X-ray of the neck of humerus fracture showed very little healing, and that alignment and position were quite reasonable. The claimant had active abduction to about 30 degrees and passive to 90 degrees. Dr Dave also diagnosed a fracture of the triquetrum in the left wrist. He wondered if there was scapholunate association but stated that this was not confirmed by MRI scan. He recommended physiotherapy.[22]
[22] Page 41 of the claimant’s bundle.
Eight months after the accident, in a report dated 17 February 2020, Dr Dave noted that the claimant still had considerable pain, requiring Endone at times. The claimant could abduct and flex his right shoulder to about 130 degrees.[23] He was subsequently diagnosed with avascular necrosis of the right humeral head secondary to the fracture.
[23] Page 43 of the claimant’s bundle.
An MRI of the right shoulder performed on 27 July 2020 (13 months after the accident) showed no collapse of the articular surface of the humerus and a partially healed fracture. There was a minor partial-thickness articular surface tear of the supraspinatus tendon with tendinosis and bursitis, tendinosis of the long head of biceps tendon, and acromioclavicular joint (ACJ) osteoarthritis.[24]
[24] Page 69 of the claimant’s bundle.
A second MRI of the right shoulder performed on 11 January 2021, again showed changes on the humeral head consistent with avascular necrosis, but no actual collapse. The glenohumeral joint was noted to be abnormal with marked posterior decentring to the humeral head/partial posterior subluxation and grade 2 chondral wear. X-ray of the right shoulder in July 2021 was reported to show preserved glenohumeral joint space.[25]
[25] Page 73 of the claimant’s bundle.
The claimant came under the care of orthopaedic knee surgeon, Dr Quang Dao, for the management of his right knee. In his report dated 15 June 2020 to the general practitioner, Dr Quang Dao described a knee injury in the accident. Dr Quang Dao noted a slight antalgic gait and tenderness over the superolateral corner of the patella. He stated that MRI scan showed a chondral flap affecting the medial femoral condyle, but no obvious meniscus tear or anterior cruciate ligament injury. He believed there was no obvious pathology to explain his current pain and injected the localised painful area with anaesthetic and steroid. Two weeks later he reported improvement following the injection.[26]
[26] Pages 45-46 of the claimant’s bundle.
The claimant came under the care of Dr Allan T.T Dao for persistent left wrist pain since the accident. Dr Allan T.T Dao first saw the claimant for his wrist about a year after the accident. He noted mild swelling around the ulnar side of the wrist, with tenderness and a positive ulnar grind test. He diagnosed a Triangular Fibrocartilage Complex (TFCC) attachment tear and a central TFCC tear with an ulnar impaction.[27]
[27] Pages 47-48 of the claimant’s bundle.
On 10 August 2020, Dr Allan T.T Dao performed left wrist arthroscopy with debridement of the TFCC tear, chondroplasty to grade 4 changes in the lunate and head of ulna, and an ulna-shortening osteotomy.[28]
[28] Page 50 of the claimant’s bundle.
Following a review of the claimant on 27 January 2021, Dr Allan T.T Dao reported some improvement of the left wrist. He was having ongoing exercise and wearing a splint for comfort, and he was told to avoid heavy lifting of the left arm.[29]
[29] Page 60 of the claimant’s bundle.
Subsequently, Dr Allan T.T Dao also reviewed the claimant in relation to his right shoulder. In a report dated 1 February 2022, Dr Allan T.T Dao described some improvement in the right shoulder with physiotherapy. He found forward elevation to 160 degrees, external rotation of 70 degrees and internal rotation to L3. He stated there had been no radiological collapse of the humeral head. Dr Allan T.T Dao noted that in the long run there is still a risk that the avascular necrosis may cause arthropathy in the shoulder and he asked the claimant to return to see him if there was increasing pain or stiffness in the right shoulder over time.[30]
[30] Page 62 of the claimant’s bundle.
When asked about his progress since the accident, the claimant recalled the above treatment. After surgery to the left wrist, he described hand therapy for about six months. He added that he still cannot take much weight on the left wrist; for example, he cannot push himself up out of a chair with his left hand. He described reduced range of movement and weak grip. With the right shoulder, he understood that “basically the bone’s dead – is going to collapse – not if but when… it will need replacement”. He understood that shoulder replacement would require a prolonged recovery and that it would still not result in a normal shoulder.
The claimant was asked about the onset of low back pain after the accident. He said that when he had filled in his personal injury claim form, he was advised to write down the three things which bothered him most and that “only when the pain subsided a bit, I started to notice my neck and back – it was not really the lower back – this was higher”. On further questioning, he said that back and neck pain came on about a week after the accident.
The claimant was asked about treatment received for the neck and back. He said that he initially had some physiotherapy to the back, but it did not help. He had some chiropractic treatment, again without benefit. He also had some physiotherapy and acupuncture to the neck without much benefit. He said he had not consulted any specialists for his neck or back and commented that the insurer refused to pay for this. He added that he had mentioned neck and back symptoms to general practitioners – he said that at the Royale Medical Centre in Campbelltown, there were seven different doctors. He said that he had not attended a regular general practitioner prior to the accident.
He was asked about any right knee injury in the accident – he described the knee as initially “all grazed” (he was wearing long trousers). He recalled seeing Dr Quang Dao, knee surgeon. He did not think the steroid and anaesthetic injection had been helpful. He said the knee was still painful.
The claimant also described clicking in the lateral hips bilaterally, particularly when he straightens his legs.
Current symptoms
The claimant was asked which parts of his body troubled him most. He replied that the right shoulder was the worst, followed by the middle part of the back, then the neck and the left wrist, followed by the right knee. He described current symptoms in more detail as follows.
Right shoulder: he described constant pain, putting his left hand over the right shoulder cowl to demonstrate. He spontaneously demonstrated a reduced range of active range of movement (AROM) –he illustrated this by flexing his uninjured left shoulder to 120 degrees – he said he did not want to show me with the right shoulder because of pain. Internal rotation is restricted.
He can only sleep on his left side – if he rolls onto his right shoulder in his sleep, pain will wake him up – he said this has occurred and he has woken crying in pain. Sudden right shoulder movements are very painful. The right shoulder is never pain-free but pain varies in intensity – he rated it as 5-7/10 on the VAS scale on a good day, but perhaps 9-10/10 on a bad day. He said that when pain is very bad, the strong opiate analgesic Endone does not relieve it.
Back: the claimant pointed to the thoracolumbar junction at approximately T12 level. He said that there was always an ache in this area. Jolting, for example descending stairs, is very painful. He commented that “I even tried to do nothing for a while, but everything got worse”. He has found that he has to try to stay active. Bending can also be painful. He has not noticed any lower limb radiation.
Neck: the claimant described pain in the back of the neck and a cracking sound/sensation when he turns his head to the right. Neck symptoms are more intermittent, and worse when he wakes in the morning – at times he can wake with a very stiff neck and a bad headache. He has spent a lot of money on different pillows to try and obtain relief, describing himself as “a bit of an expert on pillows”. Neck pain can radiate to either shoulder but not further to the upper limbs. However, the claimant did describe some pins and needles; with his hand he demonstrated radiation down the extensor aspect of both upper arms and forearms to the little fingers.
Left wrist: as noted above, the claimant mainly described pain if he pushes up, for example from a chair. It is also painful to carry a normal shopping bag. He said that the range of movement had improved and that now grip was “pretty good”.
Right knee: the claimant seemed to think that the knee joint itself was not too bad, but he described intermittent sharp pain laterally, “like someone twisting a knife or a needle”. He described allodynia – sometimes he cannot tolerate the touch of a bed sheet on the lateral knee.
Activities since the accident
As previously noted, the claimant had not been able to return to work since the accident. He said that his employer had wanted him to work with an apprentice who would have taken his ute home and picked him up in the mornings and taken him to and from work. However, he was told that the employer’s occupational health and safety department was of the view that there was a risk of further injury and the employer required a medical clearance before he could go back to work.
The claimant received weekly payments of statutory benefits for some time, but he said that this had then ceased. He thought that following an assessment of 6% WPI of the insurer’s doctor payments had ceased. For a while he received Centrelink Jobseeker benefits. He said that he had applied for the Disability Support Pension but was unsuccessful. He needed to sell various items, such as three cars and three motorbikes to financially support himself. He said that since the issue of Medical Assessor Home’s certificate (the subject of this review) he again received weekly payments of statutory benefits.
For self-care, the claimant said that he must use his left hand for toileting because of his stiff and painful right shoulder; he tends to have a shower after bowel actions instead of using paper. He has difficulty with underpants and trousers and cannot do his shoelaces.
The claimant added that fortunately, he lives in a single-storey home. He does try to help a bit, for example, in the kitchen. At times he has tried to perform different tasks, for example, vacuuming but this caused excessive back pain, even when using a long extension to minimise forward bending. He is able to drive only locally on a good day. He cannot ride a motorbike.
He was asked specifically about sleep patterns. He described marked disturbance. Typically, he cannot get to sleep unless he stays up until he feels completely exhausted.
He said he would only get three to five hours sleep on a good night. He does have short naps during the day. He always feels run down with no energy (he was noted to look very tired). He does walk around the yard a bit. He said that he does not like to go far from the home, as on at least one occasion he was in too much pain to walk back home and had to phone his wife to pick him up.
Current medications
The claimant takes some Paracetamol and Nurofen. He typically takes 1 x 5 mg Endone in the morning but said he tries to restrict this to one tablet per day. He also usually takes some Tramadol – he tries to restrict this to one tablet after lunch. In addition, he takes Voltaren Rapid, two to three per day. He takes the benzodiazepine Ativan at night which helps him sleep.
The claimant said he had also taken Catapres, Cymbalta and the atypical antipsychotic Seroquel. He said he was having bad dreams about the accident. He initially saw a psychologist and was later referred to a psychiatrist who was able to help him to some extent with his anxiety and depression. He said that he had eventually been diagnosed with
post- traumatic stress disorder and depression.
The claimant said he had always been a non-drinker. He smokes 15 to 20 cigarettes a day and he realised it was bad for him. He tends to smoke more if he is in bad pain.
Clinical examination
The claimant presented as a very big man with a large frame and significant additional central obesity. Height was 184 cm and weight 155 kg. He explained that he had always been big and prior to the subject accident weighed 112 kg. Chest girth was 138 cm, waist 147 cm and hips 143 cm. He looked like a man who had been very muscular and strong in the past.
He gave a clear history in a very straightforward manner. There was no suggestion of exaggeration or dramatisation of symptoms, although he was obviously in considerable pain with any movement of the right shoulder girdle. He showed good effort throughout the examination, with no evidence of abnormal pain behaviours, self-limitation or inconsistency. He was also noted to look very tired with “bags under his eyes”.
He was able to sit during the interview. He was noted to pull a short-sleeved shirt off using his left hand only and had some difficulty removing his singlet for examination of the upper body.
Cervical spine
There was a slight tendency to forward protrusion of the head and neck (poke neck). There was no significant tenderness to palpation over the cervical spine or adjacent muscles. Forward flexion was completely full whereas extension was about half of normal. Flexion was described as easier than extension. Rotation was approximately two-thirds of normal bilaterally and symmetrical and lateral flexion half of normal bilaterally and symmetrical. Thus, the main finding was dysmetria, with extension significantly restricted compared with flexion.
Lumbar spine
Posture of the thoracic and lumbosacral spine was within normal limits. On palpation there was moderate tenderness over the thoracolumbar junction at the T12/L1 level. Percussion at this level was also painful.
Spinal rotation (which mainly occurs in the thoracic spine) was tested with the claimant seated in a chair to stabilise the pelvis – rotation was full to the left but only half of normal to the right – this movement appeared to be very stiff and was accompanied by a report of pain at the thoracolumbar junction.
Movements of the lumbosacral spine were carefully observed with the claimant standing with knees straight. He could flex forward with fingertips to the knees – on careful observation forward flexion over the lumbosacral segment was within normal limits. On flexion he reported pain over the thoracolumbar junction. In contrast, extension was restricted to a third of normal, again with pain reported at the thoracolumbar junction. Lateral flexion was two-thirds of normal bilaterally. Thus, there was definite dysmetria, with pain, both in rotation and in the flexion/extension plane – all associated pain was reported at the thoracolumbar junction.
Upper extremities
Hands were very soft and clean with no calluses (the claimant said that his hands had been very rough and callused previously when working). Grip strength was normal bilaterally. The right upper arm measured 45 cm in girth, the left 46 cm. Both forearms measured equally at 34.5 cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. There were no objective signs of upper limb radiculopathy, with power and sensation preserved bilaterally.
In the shoulders, the left was normal, with no tenderness to palpation and a full painless AROM. In the right shoulder he reported moderate tenderness over the glenohumeral joint, worse anteriorly than laterally. There was marked painful restriction of AROM in the right shoulder, as tabulated. Measurements were made with a goniometer with repetition.
Right
Left
Flexion
140°, 100°
180°
Extension
20°
50°
Abduction
60°, 50°
180°
Adduction
20°
40°
External rotation
60°
100°
Internal rotation
60°
90°
Restricted internal rotation on the right was confirmed – the claimant could reach his left thumb up behind his back to T6 level, but the right only to the buttock. He was also noted to make a very strong effort on initial attempts at right shoulder flexion and abduction. These appeared to cause considerable pain and repeat measurements afterwards were significantly diminished. The clinical picture was of a very painful stiff right shoulder, consistent with the history of fracture and subsequent complications with partial avascular necrosis of the humeral head.
Turning to the wrists, the right was normal. The left wrist was normal to inspection, but the claimant reported moderate tenderness to palpation of the dorsum of the wrist. AROM of the wrist was carefully measured with repetition with a goniometer as tabulated.
Right
Left
Flexion
50°
50°
Extension
60°
60°
Ulnar deviation
30°
30°
Radial deviation
20°
20°
There was a well-healed 80 mm scar along the ulnar border of the left forearm from previous surgery. This was slightly darker than the surrounding skin but without visible suture marks, adherence to underlying tissues or contour change. There was no report of interference with activities because of this scar.
Slight pain was reported on full ulnar deviation of the left wrist. Pronation and supination of the forearm was also carefully measured with a goniometer with repetition, as tabulated – note that these movements occur at both elbow and wrist and are affected by pathology at either level.
Right
Left
Pronation
90°
90°
Supination
70°
50°
Lower extremities
Measured 10 cm proximal to the patella the right thigh measured 61 cm and the left 62 cm. Knee jerks and ankle jerks were normal and symmetrical. There was no detectable muscle weakness or sensory loss in either lower limb, except for an area lateral to the right knee (see below). Thus, there was no evidence of lumbosacral radiculopathy.
Both knees were normal to inspection. Both showed full extension and flexion to 110 degrees (slightly less than average but consistent with his body habitus). Ligaments were all clinically intact. There was no palpable crepitus on movement. There was no patellofemoral irritability as tested by patellofemoral grinding or Clarke’s test.
There was a small area of reduced sensation to light touch and pinprick with associated dysaesthesia to light touch lateral to the right knee. This was noted to be in the partial distribution of the lateral sural cutaneous nerve or lateral femoral cutaneous nerve.
DIAGNOSIS AND CAUSATION
The claimant is a 53-year-old man who gives a consistent history of being fit, strong and healthy prior to the accident. Since leaving school he had been working in the fairly heavy manual trade of air-conditioning, mostly doing commercial work, including a lot of high-rise buildings. He describes no difficulty with this work or with his various hobby activities prior to the accident.
On 6 June 2019, he was involved in a serious “high side” motorcycle crash, which occurred when he encountered an oncoming car on the wrong side of the road. He landed heavily on his right side.
The most obvious injury initially documented by ambulance officers and Liverpool Hospital was a fracture of the surgical neck of the right humerus. This was treated conservatively. Abrasions to both knees and injuries to the right chest, left thumb and left wrist were also documented. Because of persistent pain in the left wrist, he eventually came to surgery. The Panel accepts that these injuries were caused by the accident.
In his application for personal injury benefits dated 17 June 2019, the claimant reported that listed symptoms in the back and neck. This was 11 days after the accident. Although neck and back symptoms were not documented initially by Liverpool Hospital, the claimant gave a convincing history of the onset of pain in these areas about a week after the accident and persisting since then. The Panel considers that injuries to the neck and back are consistent with the described mechanism of injury in the crash, and also that pain in these areas might well have been overshadowed by his more obvious (and very painful) right shoulder injury. The Panel accepts that the injuries to the neck and back were caused by the accident.
The claimant describes ongoing symptoms in various injured body areas since the accident as detailed above.
PERMANENT IMPAIRMENT
Neck
The claimant described ongoing symptoms in the neck, including pain, marked stiffness and headaches. Examination was consistent with Whiplash Associated Disorder Grade II (WADII) with significant and reproducible dysmetria. This injury is assigned to DRE Cervicothoracic Category II, giving 5% WPI.
Lumbar spine – “low back – strain”
The claimant gave a convincing history of persistent pain, in fact well-localised to the thoracolumbar junction. Examination showed tenderness to both palpation and percussion in this area. Examination showed marked dysmetria particularly of rotation and also in the flexion/extension plane. Because of the location, this could either be described in the terms of AMA4 as “thoracolumbar” or “lumbosacral”. With definite and reproducible dysmetria this injury is assigned to DRE Thoracolumbar Category II, giving 5% WPI.
Chest – soft tissue injury
This initial injury has recovered and attracts no assessable impairment.
Left hand and left thumb and left wrist and hand
Residual symptoms are restricted to the left wrist with localised tenderness to palpation and specific restriction of forearm supination (Medical Assessor Home found the same). Turning to the relevant tables of AMA4, there is no assessable impairment from the wrist Figures 26 and 29. However, restricted supination (which is treated under the elbow, Figure 35 of 50 degrees) gives 1% upper extremity impairment. (There was full supination in the uninjured right side). A 1% UEI converts using Table 3 to 1% WPI.
Scarring
There was minor surgical scarring over the left wrist. The best fit on the TEMSKI table was 0% WPI.
Right shoulder and arm
This has been the most obvious and serious injury in this case and has effectively been career-ending for a tradesman. There has been documented partial avascular necrosis of the humeral head and it is suspected that the claimant is developing post-traumatic degenerative arthritis in the glenohumeral joint. The Panel may only consider the impairment as it is at the time of the assessment. The evaluation must not include any allowance for a deterioration and the Panel has not done so.[31]
[31] See clauses 6.21 and 6.22 of page 88 of the Guidelines.
During examination, the claimant made very good effort, pushing himself to initial flexion of 140 degrees and abduction of 60 degrees – he was in severe pain after this and unable to subsequently move as far.
Applying the tabulated AROM above to Figures 38, 41 and 44 of AMA4, based on the best (first) observed movement there is 12% UEI (this would be 14% if the subsequent lesser movements were accepted). There is full range of movement in the uninjured left shoulder and no corresponding deduction. The Panel accepts the best AROM seen, giving 12% UEI or 7% WPI.
Right knee
The claimant described intermittent mild symptoms in the right knee with dysaesthesia and allodynia over the lateral aspect of the knee suggesting nerve damage. Consistent with the previous findings of Medical Assessor Home, this examination showed an area of reduced sensation and dysaesthesia over the lateral aspect of the right knee, both slightly proximal and distal to the joint line.
Referring to Table 68 and Figure 59 in AMA4, this area could be variously described as part of the distribution of the lateral femoral cutaneous nerve or the lateral sural cutaneous nerve. Referring to Table 68 of AMA4, complete sensory loss and dysaesthesia in the distribution of the lateral femoral cutaneous nerve gives 4% WPI or 9%LEI. The area found on examination represented only a partial distribution of the nerve and severity is rated using Table 11 as 25%. The Panel considers that the observed sensory impairment and dysaesthesia gives 1% WPI.
Finally, the above figures are combined sequentially using the Combined values chart which results in a permanent impairment of 18% WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | Page 104 | Yes | 5 | 0 | 5 |
| 2 | Lumbar spine | Page 102 | Yes | 5 | 0 | 5 |
| 3 | Left wrist | Figure 35 | Yes | 1 | 0 | 1 |
| 4 | Right shoulder | Figures 38, 41, 44 | Yes | 7 | 0 | 7 |
| 5 | Right knee | Tables 11, 68 | Yes | 1 | 0 | 1 |
| 6 | Scarring | TEMSKI | Yes | 0 | 0 | 0 |
CONCLUSION
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Couch in relation to the injuries to the cervical spine, lumbar spine, left wrist, right shoulder, right knee and scarring.
The Panel has reached different conclusions in their assessments of WPI which has resulted in an assessment of a higher degree of permanent impairment.
Accordingly, the Panel revokes the certificate of the single Medical Assessor and issues a new certificate. The new certificate of the Panel is attached to these reasons.
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