QBE Insurance (Australia) Ltd v Kumar
[2022] NSWPICMP 66
•28 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Ltd v Kumar [2022] NSWPICMP 66 |
| CLAIMANT: | Rajiv Kumar |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Mohammed Assem Dr Margaret Gibson |
| DATE OF DECISION: | 28 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- The claimant was involved in a motor accident on 24 August 2015 when he sustained soft tissue injuries to the cervical and lumbar spines and left shoulder; Held- The claimant was examined by both Medical Assessors who found impairment of the lumbar spine but no impairment of the cervical spine; discussion of whether claimant suffered discrete injury to shoulders and/or whether he has referred pain restricting movement under the Nguyen principle; examination findings of shoulders showed significant variability and measurements could not be accepted as a valid and reliable method; restriction in shoulder movement assessed by way of analogy; no deduction made for nay pre-existing impairment; observations that the onus was on the insurer to establish the deduction; Vines v Djordjevitch and Matthew Hall Pty Ltd v Smart referred to; claimant assessed at 9% whole person impairment; original assessment revoked. |
DETERMINATIONS MADE: | The Panel revokes the certificate dated 31 May 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · aggravation of degenerative changes in the lumbar spine; · soft tissue injury to the cervical spine; · left shoulder injury and Nguyen principle, and · right shoulder – referred pain from neck – Nguyen principle. |
REASONS
BACKGROUND
Mr Rajiv Kumar (the claimant) was involved in a motor accident on 24 August 2015 when another motor vehicle collided with the passenger side of his vehicle (the motor accident).
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Kumar any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present disputes between the parties are whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
THE REVIEW
The medical assessment the subject of the review was issued by Medical Assessor Shahzad and dated 31 May 2021. The Medical Assessor found that Mr Kumar had a 5% impairment of the lumbar spine and 8% impairment of the left shoulder caused by the motor accident resulting in overall permanent impairment greater than 10%.
The application for referral of the medical assessment to a review panel were made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 6 October 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were 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.[5]
[5] Section 63(2B) of the MAC Act, Insurer’s bundle, page 831.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
On 22 December 2021 the Panel issued a direction to the parties requesting a provision of respective bundles that should be considered noting that the insurer had filed a bundle of documents containing 254 pages. The insurer was invited to file any further material “it wishes the panel to consider” and provided no further documents. The claimant filed an additional bundle attaching the Medical Assessor’s decision and his review submissions.
Mr Kumar filed an updated MRI scan report dated 7 February 2022 said to be with the insurer’s consent.
On 11 February 2022 the Panel requested the parties to produce further material that appeared to be omitted from the respective bundles and additional clinical documents.
The claimant referred the Panel to the clinical notes of Dr Sadek that were in the materials filed in the Commission. The insurer filed a further bundle of documents.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “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%.”
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“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.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
PREVIOUS MEDICAL ASSESSMENTS
Medical Assessor Perla provided a medical assessment dated 12 April 2018[12] and concluded that the claimant sustained soft tissue injuries to the cervical spine, lumbar spine and both shoulders. The Medical Assessor concluded that there was no assessable impairment of the spine and assessed the left shoulder impairment at 1% and the right shoulder impairment at 4%.
[12] Insurer’s bundle, page 67.
Medical Assessor Gliksman issued a certificate dated 18 December 2018[13] when he concluded that various treatment to the left shoulder was “not reasonable and necessary in the circumstances”. In his reasons the Medical Assessor opined:[14]
“[A] tear of this nature would not be consistent with the insufficiently violent nature of the motor vehicle accident described, or the findings on ultrasound performed several months afterwards. For these reasons I concur with Dr Bosanquet that the cause unknown, lies elsewhere.”
[13] Claimant’s amended bundle, page 344.
[14] Claimant’s amended bundle, page 351.
Medical Assessor Home provided a medical certificate dated 10 December 2019.[15] The doctor concluded that the motor accident likely caused a soft tissue injury contusion to the left shoulder due to the transmission of force from the steering wheel to the left arm as the left hand was holding the wheel at the time of impact. He concluded that the posterior force on the shoulder probably aggravated or rendered symptomatic a pre-existing tear.[16] The Medical Assessor certified that the proposed left shoulder arthroscopy was reasonable and necessary in the circumstances.
[15] Insurer’s bundle, page 98.
[16] Insurer’s bundle, page 112,
Medical Assessor Shahzad found that there were soft tissue injuries to the cervical spine, lumbar spine and both shoulders caused by the motor accident. The Medical Assessor assessed the lumbar spine at 5% and the left shoulder at 8%.[17]
[17] Insurer’s bundle, page 19.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction and further material following the second Direction.
Claimant’s statement evidence
Mr Kumar provided a statement dated 4 September 2019.[18] He disagreed with the opinion of Medical Assessor Gliksman that there was no immediate onset of left shoulder pain and stated that he reported the problem to Dr Sadek on 3 September 2015. Dr Sadek referred Mr Kumar to Dr Maniam who he saw at the first available opportunity in December 2015.
[18] Insurer’s bundle, page 81.
Mr Kumar stated that he had no prior left shoulder problems and that he could not have injured his neck, back and shoulder “in anything but the motor vehicle accident”.[19]
[19] Insurer’s bundle, page 83.
Mr Kumar provided a further statement dated 29 September 2020.[20] He referred to a worsening left shoulder condition prior to the operation, which was performed on 19 May 2020, which has improved, without full recovery, in the following months.
[20] Insurer’s bundle, page 84.
Mr Kumar also described ongoing pain in the right shoulder, neck and back.
Clinical notes
Dr Sadek’s clinical notes for 3 September 2015 refers to “headaches neck pain and rt shoulder pain, has somnolence since the MVA”.[21] Later in the clinical notes the doctor recorded that there was tender abduction for the left shoulder and in the left supraspinatus. The clinical notes for 9, 16 and 29 September 2015 refer to neck and low back pain. The left shoulder is referenced again on 5 February 2016 in the context of a referral for an X-ray and ultrasound.[22] On 1 March 2016 Dr Sadek noted the left shoulder was “a main problem”.
[21] Insurer’s supplementary bundle, page 125.
[22] Insurer’s supplementary bundle, page 123.
Dr Sadek provided a referral dated 29 September 2015 to Mr Metri for management of PTSD and pain symptoms for neck and back pain since the motor accident.[23]
[23] Claimant’s amended bundle, page 47.
On 1 March 2016 Dr Sadek referred Mr Kumar for an MRI scan of the left shoulder noting that there was “pain and reduced ROM after MVA”, the ultrasound did not show any abnormality and there was no response to hydrotherapy and medications.[24]
[24] Claimant’s amended bundle, page 522.
The report of Dr Sadek, general practitioner dated 29 April 2019[25] noted the first attendance after the motor accident on 3 September 2015 and detailed regular attendances in 2015 and 2016. Mr Kumar did not consult Dr Sadek prior to the motor accident. The doctor noted initial complaints of neck, back and right shoulder pain. Subsequent presentation included “shoulders pain” and psychological symptoms.
[25] Insurer’s bundle, page 195.
In a further report dated 13 September 2019 Dr Sadek provided a clarification when he stated that “the shoulder mentioned on [the 3 September 2015] consultation was meant to be the left shoulder.”[26] The doctor stated that this statement was “confirmed” by subsequent consultations of left shoulder complaints and scans organised to the left shoulder in February 2016.
[26] Insurer’s bundle, page 207.
Clinical notes of Roger Berbari, physiotherapist, dated 24 September 2015 referred to pain in the “C/S”, “LBP” and tenderness left greater than right in the upper trapezius.[27] The notes are similar to typed notes dated 19 September 2015.[28] A short report dated 11 December 2015 referred to treatment to the cervical and lumbar spine.[29]
[27] Insurer’s bundle, page 157.
[28] Insurer’s bundle, page 173.
[29] Insurer’s bundle, page 189.
The physiotherapist noted complaints of left shoulder pain in November 2015.[30] Bilateral shoulder pain was referenced subsequently in early 2016.[31]
[30] Insurer’s supplementary bundle, page 82.
[31] Insurer’s supplementary bundle, page 96.
Treating evidence
Dr Vijay Maniam
In a report dated 28 January 2016[32] Dr Maniam noted a previous examination on 11 November 2015.[33] The doctor noted no prior history of symptoms to the spine and upper and lower limbs and opined that there were discal injuries to the neck and low back.
[32] Insurer’s bundle, page 215.
[33] Despite requesting this in our further Direction, the parties did not provide the report for the November 2015 examination.
In a report dated 17 August 2016[34] Dr Maniam noted that no diagnosis was made of the left shoulder as there were no radiographs and full range of movement. The doctor observed he was “surprised to note the exhibited significant changes” on the left shoulder MRI scan because these were “not elicited during clinical examination”.
[34] Insurer’s bundle, page 218.
Dr Maniam opined that there was a SLAP tear in the left shoulder which had been “brought about by the accident”.[35]
[35] Insurer’s bundle, page 219.
In a report dated 3 October 2017 Dr Maniam opined that there was injury to the cervical spine, lumbar spine and left shoulder with the shoulder requiring surgery.[36] He then opined that Mr Kumar’s impairment was 15% due to injuries to the left shoulder, cervical and lumbar spine.[37]
[36] Insurer’s bundle, page 220.
[37] Insurer’s bundle, page 231.
Dr Maniam provided a report dated 30 January 2020 stating that he had been treating Mr Kumar since 11 November 2015.[38] At that time he noted pain in both shoulders, more on the right.
[38] Insurer’s bundle, page 95.
In a report dated 13 July 2020 Dr Maniam noted that left shoulder surgery was performed on 19 May 2020 and Mr Kumar had achieved around 60% of normal movements.[39]
[39] Insurer’s bundle, page 93.
Qualified opinions
Dr John Bosanquet, orthopaedic surgeon, was qualified by the insurer and provided a report dated 23 May 2016.[40] The doctor noted left shoulder pain and locking, neck pain, low back pain but no right shoulder symptoms. Dr Bosanquet opined that there were soft tissue injuries to the cervical spine and left shoulder and an aggravation of degenerative changes in the lumbar spine caused by the motor accident.[41]
[40] Insurer’s bundle, page 34.
[41] Insurer’s bundle, page 36.
Dr Bosanquet found no assessable impairment of the cervical spine and shoulders and assessed the lumbar spine at 5% impairment which he said was due to pre-existing degenerative changes.
In a further report dated 2 November 2016 Dr Bosanquet opined that it was possible that Mr Kumar injured his left shoulder but noted on his previous examination there was full range of movement. He opined that there was “no evidence” that the motor accident caused the findings shown on the MRI scan and recommended against an arthroscopic procedure.
Dr Bosanquet provided a further report dated 13 March 2019.[42] The doctor opined that the claimant suffered a soft tissue injury to the cervical spine, lumbar spine and right shoulder. The underlying degenerative changes in the spine and labral tear in the right shoulder[43] were unrelated to the motor accident.
[42] Insurer’s bundle, page 42.
[43] The doctor probably meant left shoulder as he then discussed the radiology and the presence of a labral tear in the left shoulder.
Dr Bosanquet opined that he would have expected the symptoms from the motor accident to resolve and the long-term prognosis form the motor accident was very good. The doctor otherwise expressed agreement with Dr Gliksman’s report of 18 December 2018.
Dr Peter Giblin provided a report dated 28 September 2017.[44] The doctor recorded complaints of pain in the back, neck and left shoulder with subsequent complaints of pain in the right shoulder “over the last few months”.
[44] Insurer’s bundle, page 201.
Dr Giblin opined that there were injuries to the cervical spine, lumbar spine and left shoulder with a secondary soft tissue injury to the right shoulder consequent upon the left shoulder injury.[45]
[45] Insurer’s bundle, page 205.
Dr Giblin provided a further report dated 31 August 2020.[46] The doctor noted arthroscopy scars over the left shoulder. He assessed the permanent impairment of the left shoulder at 6%, the right shoulder at 3% and the lumbar spine at 5%.
[46] Insurer’s bundle, page 87.
Radiology
An X-ray of the lumbar spine dated 10 September 2015 is reported as showing minor lower facet joint sclerosis.[47]
[47] Insurer’s bundle, page 181.
A CT scan of the lumbar spine dated 1 October 2015 showed foraminal stenosis at most levels, probably longstanding which may be compromising the L3 and L5 nerve roots, particularly the left L5 nerve root.[48]
[48] Insurer’s bundle, page 182.
A full spine MRI scan dated 4 November 2015 recorded a clinical history of neck and back pain following the motor accident. The report notes minimal bulging at C4/5 and C5/6 described as not significant and disc dehydrating and annular tears at the lower three levels of the lumbar spine.[49] The findings are similar to those shown in the MRI scan of the lumbar spine dated 22 March 2018.[50]
[49] Insurer’s bundle, pages 208-209.
[50] Insurer’s bundle, page 212.
An X-ray and ultrasound of the left shoulder dated 15 February 2016 is reported as normal.[51]
[51] Insurer’s bundle, page 186.
An MRI scan of the left shoulder dated 22 July 2016 is reported a showing a tear along the length of the labrum resulting in a SLAP lesion.[52]
[52] Insurer’s bundle, page 210.
An X-ray of the cervical spine dated 26 June 2017 is reported as showing no significant abnormality or pathology.[53]
[53] Insurer’s bundle, page 180.
A bone scan dated 3 April 2018 is reported as showing degenerative changes at C3/4 and possible early arthritic changes in the shoulders.[54]
[54] Insurer’s bundle, page 184.
A right shoulder ultrasound dated 20 September 2018 is reported as showing no rotator cuff tendon tear or tendinosis and no subacromial tendinosis.[55]
[55] Insurer’s bundle, page 187.
An MRI scan of the right shoulder dated 23 November 2018 is reported as showing a large cyst associated with a SLAP tear.[56]
[56] Insurer’s bundle, page 199.
An MRI scan of the left shoulder dated 26 November 2018 showed a posterior labral tear with posterior paralabral cyst.[57]
[57] Insurer’s bundle, page 200.
An MRI scan of the right shoulder dated 7 February 2022 is described as a suboptimal study due to patient movement despite several attempts. The report notes hypertrophy of posterior labrum with possible small tear of posterosuperior labrum without a cyst.
Documents relating to the motor accident
Mr Kumar completed a claim form on 4 September 2015 referring to injury to both shoulders and the neck and an aggravation of previous psychological injuries.[58] The certificiate provided by Dr Sadek dated 9 September 2015 referred to whiplash neck injury and low back pain.[59]
[58] Claimant’s amended bundle, page 20.
[59] Claimant’s amended bundle, page 23.
SUBMISSIONS
The parties have filed multiple submissions in the course of the medical assessments. The following is only a summary of the extensive submissions.
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[60] that there was error. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
[60] Or the relevant predecessor.
We also observe that the Panel issued directions on two occasions for the parties to file bundles of documents that they wished the Panel to consider. We have addressed the submissions that have been filed pursuant to our Directions.
Claimant’s submissions dated 29 September 2020[61]
[61] Insurer’s bundle, page 58.
These submissions were filed seeking a further assessment of the claimant following the original assessment undertaken by Medical Assessor Perla.
The claimant noted that he underwent a surgical procedure of the left shoulder on 19 May 2020 and was subsequently assessed by Dr Giblin who assessed 14% impairment in a report dated 31 August 2020. Dr Giblin previously assessed the claimant at 7% in September 2017.
The claimant relied on the further opinion in asserting that there had been a deterioration of his condition.
Claimant’s submissions dated 30 August 2021
These submissions were filed opposing the insurer’s application that the matter proceed to a review panel. The following is a summary of the submissions to the extent that they may be relevant to our task.
Following the original assessment by Medical Assessor Perla, the claimant experienced a significant deterioration. Medical Assessor Home certified that the left shoulder arthroscopy was reasonable and necessary and caused by the motor accident.
Medical Assessor Shahzad considered all relevant material and undertook a comprehensive review. The opinion of Dr Bosanquet was in the minority and inconsistent with Medical Assessor Perla, Assessor Home and Medical Assessor Shahzad which all certified that both shoulders, the cervical and lumbar spine were injured in the motor accident.
There was no basis to find that there should be any apportionment as required by clauses 1.31-1.34 of the Guidelines. There is no objective evidence of pre-existing impairment of the lumbar spine and the insurer has not identified any evidence and the reliance on the opinion of Dr Bosanquet does not establish error.
The Medical Assessor took a proper account of the claimant’s pre-accident medical history and exposed his path of reasoning to findings of causation and why no deductions were to be considered.
Insurer’s submissions dated 23 November 2020[62]
[62] Insurer’s bundle, page 30.
The insurer submitted that Mr Kumar suffered only soft tissue injuries in the motor accident. The insurer opposed the application for further assessment as the medical reports relied upon for deterioration, such as Dr Giblin’s report in August 2020, did not have a material effect on Medical Assessor Perla’s assessment. It was asserted that the evidence of deterioration reported by Dr Giblin would not of itself overcome the 10% threshold and were not capable of having a material effect of the outcome of the previous assessment.
Insurer’s submissions dated 6 July 2021[63]
[63] Insurer’s bundle, page 2
The insurer did not concede that the claimant suffered greater than 10% permanent impairment. Medical Assessor Perla assessed the impairment at 5% is a certificate issued on 12 October 2018. Medical Assessor Gliksman issued a certificate dated 18 December 2018 and determined that the proposed treatment was not causally related to the motor accident.
Medical Assessor Shahzad failed to provide adequate reasons. The insurer “presented a substantial, clearly articulated argument that any impairment in the left shoulder was not causally related to the accident”.[64] This submission was based on the opinion expressed by Dr Bosanquet, described as “important evidence” that:
(a) the ultrasound of the left shoulder dated 15 February 2016 was reported as essentially normal;
(b) an MRI scan of the left shoulder dated 22 July 2016 reported a labral tear, and
(c) that it was unlikely that the tear was caused by the motor accident;
[64] Insurer’s bundle, page 4, [28].
Medical Assessor Gliksman was of the view that the tear occurred after the motor accident.
A critical issue is an explanation of why the left shoulder pathology was causally related to the motor accident and provide reason why Dr Bosanquet’s opinion was rejected.
The insurer also submitted that any impairment of the lumbar spine was due to pre-existing degenerative changes in the lumbar spine. The reasons failed to engage with Dr Bosanquet’s opinion.
RE-EXAMINATION
Mr Kumar was examined by both Medical Assessors on the Panel. Their joint examination report is as follows:
“Mr Kumar attended as arranged. Present were Assessors Assem and Gibson. There was a Hindi interpreter available over the phone.
In relation to his past medical history, Mr Kumar reported no history of any prior motor accidents or work injuries. There were no relevant medical or surgical issues.
In relation to the history of the subject accident, Mr Kumar said that he had been driving along Moore St in Liverpool with his seatbelt fastened and he had no passengers. His vehicle was struck by another car travelling in the opposite direction. There had been two impacts to the driver’s side of his car. Airbags had not deployed. He said the accident occurred outside the police station, so police had observed the collision. Mr Kumar was later able to drive his car home and it was repaired.
Mr Kumar said that later that day, he noticed neck and back pain. When asked about his shoulder symptoms he indicated that these had come on ‘later on.’ He initially described these shoulder complaints as arising from his neck, with onset two to three days after the accident. When asked about the delay in him seeking medical attention after the accident, he said he was unsure about the timeframe as it was quite a long time ago, and then he added that it was possible he had visited another general practitioner before Dr Sadiq, possibly Dr Singh.
When asked why Dr Sadiq, his general practitioner had not mentioned these shoulder symptoms, he was unsure why this was. When I asked how he felt he had injured his shoulders in the accident, he said it was because he had been holding the steering wheel with both hands at the point of impact. He felt ‘very sure’ his shoulder symptoms related to this incident.
Mr Kumar was later referred to Dr Vijay Maniam, an orthopaedic surgeon. This was some months after the accident (November 2015). Dr Maniam proceeded to perform arthroscopy and subacromial decompression of Mr Kumar’s left shoulder on 19 May 2020.
Mr Kumar was then asked about his current symptoms. These included continuous neck pain, and pain which he indicated to be over the trapezius regions of both shoulders with some occasional tingling in the right upper limb.
Mr Kumar was right-hand dominant. He had a normal gait.
On examination of the neck, Mr Kumar reported noticing a clicking noise with movements. Flexion and extension were to normal range, lateral flexion was to half normal range, rotation was to three-quarters normal range. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements were consistent with right-hand dominance, therefore there was no muscle wasting, there was normal power, sensation, and reflexes.
On examination of his shoulders, movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
130 ° /140 °
120 °/130 °/145 °
Extension
30 °
20 °/40 °
Internal Rotation
20 °/50 °
50 °/30 °
External Rotation
50 °/60 °
50 °/60 °
Abduction
105 °/110 °/140 °
110 °/110 °/130 °
Adduction
30 °
30 °
The panel advised Mr Kumar that there was significant variability in the range of movements they had measured. He advised that his shoulder movements do vary according to the level of his pain. Although Mr Kumar spoke fairly good English, this fact was also confirmed by the interpreter. The site of the shoulder pain was also confirmed with the interpreter’s assistance, he indicated the trapezius regions bilaterally.
On examination of the lumbar spine, he was wearing a spinal corset which he said he wears most of the time. There was three-quarters normal range in all planes apart from extension which was slightly more limited. There was no muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting, there was normal power, sensation, and reflexes.
In relation to his current treatment, he takes Naprosyn, Panadol Osteo, tramadol and Lyrica as required. He said he had taken no medication at all prior to attending the Panel’s assessment.
IMPRESSION
The Panel accepted there had been soft tissue injuries to the cervical and lumbar spine, and left, but not right shoulder. The Panel also accepted there may be some pain referral to both shoulders which may explain the lack of immediate right shoulder symptoms. However, the Panel found no evidence that he had sustained a discrete injury to his right shoulder as a result of the subject accident.
ASSESSMENT
The Panel concluded that he has a DRE Cervicothoracic Category I or 0% WPI (AMA4, 3/104) as there was no muscle guarding, spasm or spinal dysmetria. He demonstrated a restriction in lumbar movements with some asymmetry of movement and spinal dysmetria giving a DRE Lumbosacral Category II or 5% WPI (AMA 4, Table 72, p 110).
Due to the significant variability in range of shoulder movements measured by the Panel the goniometer measurements could not be utilised as a valid and reliable method of assessing shoulder impartment. Any two measurements of shoulder motion made by the same examiner and involving the same patient should be expected to lie within 10% of each other (AMA 4, 2/9).
Based on their clinical acumen, and consideration of the clinical history and radiology and operative treatment, the Panel reached the conclusion that his right shoulder movements would be slightly limited to 160 degrees in flexion and extension, without any limitations in other planes of motion giving 2% RUEI (AMA 4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 1% WPI. The left shoulder was assessed by way of analogy. An analogous condition would be moderate crepitations left AC joint giving 20% joint impairment (AMA 4, Table 19, p 59) which is multiplied by 15% WPI (AMA 4, Table 18, p 58) to obtain 3% WPI.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[65] and Insurance Australia Ltd v Marsh.[66]
[65] [2021] NSWCA 287 at [40], [41] and [45].
[66] [2022] NSWCA 31 at [11], [21], [64].
Lumbar spine injury
We accept that there were pre-existing degenerative changes in the lumbar spine and the various histories that the claimant was asymptomatic prior to the motor accident.
The claimant complained of lumbar pain shortly after the motor accident. He has continued to complain of lumbar spine symptoms as is evident from the histories provided to a number of health practitioners and recorded in these Reasons.
The nature of the motor accident was sufficient, in the expert medical view on the Panel, to impose forces on the lower back which would aggravate a degenerative condition. That conclusion is consistent with a number of medical opinions, including that proffered by the insurer, that the motor accident aggravated degenerative changes in the lumbar spine.[67]
[67] Dr Bosanquet accepted that the moor accident aggravated degenerative changes in the lumbar spine but opined that the aggravation would have ceased.
The examination of the Medical Assessors on the Panel opined that the examination showed that Mr Kumar was assessed at 5%. We adopt those findings. That assessment is otherwise consistent with a number of doctors who have similarly assessed the lumbar spine as DRE II including Medical Assessor Shahzad, Dr Giblin and Dr Maniam.
We note that the insurer stressed the opinion of Dr Bosanquet. Dr Bosanquet opined that the lumbar spine symptoms should have resolved following the motor accident. However, Dr Bosanquet did not explain his opinion in the context that the claimant was complaining of ongoing lumbar spine symptoms of a continuous nature since the motor accident. Our contrary finding is that the effects of the motor accident to the lumbar spine did not resolve. That finding is based on the clinical examination of the Medical Assessors on the Panel and the consistent clinical history of lumbar spine pain following the motor accident.
Further, Dr Bosanquet, who assessed the claimant as DRE II, opined that the entire condition was entirely due to degenerative changes and then proceeded to deduct the 5% from his assessment of the claimant’s condition.
Dr Bosanquet has misapplied clause 1.31 of the Guidelines. There is no evidence of “a pe-existing objective symptomatic permanent impairment in the same region”. We refer to our previous findings, based on consistent clinical histories, that the claimant was asymptomatic prior to motor accident. There is no basis to make such a deduction pursuant to clause 1.31 of the Guidelines.
We have not been referred to a subsequent and unrelated injury or condition resulting in permanent impairment. We do not find that clause 1.33 is satisfied.
The claimant’s lumbar spine condition is longstanding since the motor accident. In those circumstances we are satisfied that the condition is permanent. For the reasons expressed, we are satisfied that the impairment is as a result of the injury caused by the motor accident.
Cervical spine
We accept that the claimant injured his cervical spine in the motor accident. There were contemporaneous complaints of cervical spine pain. We accept the claimant’s history provided to a number of doctors that he was asymptomatic prior to the motor accident.
The nature of the motor accident explains the whiplash type injury to the cervical spine. Several doctors, including Dr Bosanquet, accepted the motor accident would have caused soft tissue injury to the cervical spine.
The claimant was examined by the Medical Assessors as category DRE I. The Panel adopts the examination findings made by the Medical Assessors for the cervical spine which accepts that there are some ongoing symptoms in the cervical spine, but that the symptoms are insufficient to establish category DRE II.
Although we are not bound by other medical opinions, that assessment is consistent with previous assessments made by a number of doctors who examined the cervical spine.
Left shoulder
The first clinical note of the general practitioner referred to right shoulder pain and, within the detail, noted loss of movement of the left shoulder. In his report dated 13 September 2019 Dr Sadek clarified that note and stated that the reference to right shoulder was meant to be left shoulder. That clarification is consistent with the fact that Mr Kumar was referred for an ultrasound and subsequently for an MRI of the left shoulder in 2016.
Given both the statement evidence of Mr Kumar and the clarification by the general practitioner, we accept that the applicant complained of left shoulder pain at the initial consultation. That finding means that Mr Kumar did not complain of right shoulder pain to the general practitioner at the initial consultation.
We note that the ultrasound dated 15 February 2016 was reported as normal. The MRI scan dated 22 July 2016 showed the SLAP lesion in the left shoulder. That does not mean that the SLAP lesion arose between those dates as the MRI scan is more definitive than an ultrasound. The 2018 MRI scan showed a right shoulder SLAP tear. The existence of SLAP tears in both shoulders is consistent with degenerative pathology.
The nature of the trauma in the motor vehicle accident was not sufficient to cause SLAP tears in the shoulders. Dr Home expressed that opinion, and we agree with it. It is more likely that the claimant had an asymptomatic degenerative left shoulder and the motor accident stirred up the pathology through a transmission of force.
In August 2016 Dr Maniam expressed surprise with the significant changes exhibited on the left shoulder MRI scan as he noted that these were “not elicited during clinical examination”.
There is a suggestion in the claimant’s submissions that the fact that Mr Kumar underwent left shoulder surgery meant that his condition had deteriorated. It is normally the goal of treating medical practitioners, when they perform surgery, to improve the patient’s function. A repair of a SLAP tear is not a difficult operation and should generally reduce pain. These observations are otherwise consistent with the claimant’s statement dated 29 September 2020 that there was left shoulder improvement following the operation.
We are satisfied that there was left shoulder injury, probably through the transmission of force through the steering wheel, which is consistent with the clinical note of the general practitioner as clarified in the subsequent report. The impairment is complicated by pain referral from the neck. The Panel’s assessment of left shoulder impairment is contained in the joint examination report of the Medical Assessors.
Right shoulder
The inaccurate initial clinical note by the general practitioner referring to the right shudder may have caused some confusion by various medical practitioners who have expressed opinions in this matter.
The claimant’s statement evidence was that there was injury to the left shoulder indicating that there was no injury to the right shoulder.
In May 2016 there was no complaint of right shoulder symptoms to Dr Bosanquet who appeared to accept the possibility of left shoulder injury.[68] In a latter report Dr Bosanquet inconsistently refers to injury to the right, as opposed to the left, shoulder.[69]
[68] Insurer’s bundle, page 40.
[69] Insurer’s bundle, page 46.
Dr Maniam treated Mr Kumar on a number of occasions in late 2015 and throughout 2016 for the neck, back and left shoulder. His report dated 3 October 2017 confirms that the injuries sustained in the motor accident were to the cervical spine, lumbar spine and left shoulder.
Dr Giblin also opined that the injuries form the motor accident were to the cervical spine, lumbar spine and left shoulder. The doctor’s opinion of the right shoulder condition was that this developed as a consequence of left shoulder injury. The opinion was not developed, particularly in circumstances where Mr Kumar is right-handed[70] and would perform most activities with the dominant arm
[70] Insurer’s bundle, page 34.
There was no proper medical opinion explaining how a lack of use of the non-dominant arm would cause the dominant arm to suffer symptoms. No proper evidence was provided by the claimant, and we reject the bare opinion.
We have previously referred to Dr Sadek’s report correcting the initial clinical note following the motor accident when he referred to the right shoulder.
Mr Kumar subsequently complained of right shoulder symptoms and scans were organised in 2018 which showed degenerate pathology. The more likely explanation for the development of right shoulder symptoms is the degenerative pathology.
The Medical Assessors noted restriction of movement in the shoulders caused by referral of pain from the neck. That would explain some restriction of movement and is compensable as the injured neck caused this restriction.[71] It may also explain why Mr Kumar referred to both shoulders in the claim form. That conclusion is consistent with Mr Kumar’s description to the Medical Assessor that the initial shoulder symptoms arose from the neck.
[71] See Nguyen v Motor Accidents Authority [2011] NSWSC 351.
Accordingly, for these further Reasons the Panel has accepted a minor restriction in the right shoulder arising from neck pain.
Assessment of impairment
We adopt the assessments provided by the Medical Assessors as provided in their joint examination report.
We reject the insurer’s submissions that a deduction should be made under clause 1.31 of the Guidelines. Whilst we accept that there were degenerative conditions in the lumbar spine and the left shoulder, there is no objective evidence of pre-existing impairment. The insurer referred to pre-existing pathology which is not sufficient to establish a deduction under clause 1.31. Both Dr Bosanquet and the insurer did not explain the objective evidence of a pre-existing symptomatic impairment justifying a deduction.
We otherwise observe that the terms of the clause suggest that any onus is on the insurer to satisfy that there should be a deduction for pre-existing impairment because the clause provides that there must be “evidence of a pre-existing symptomatic permanent impairment in the same region”.[72]It is clear from the words of the provision that it must be established that there was a symptomatic pre-existing impairment rather than the concept being disproved by the injured person.
[72] See the discussion of where an onus lies in Vines v Djordjevitch [1955] HCA 19 at [8].
Our comments on onus are consistent with observations by the Court of Appeal of where the onus lies on a deduction for pre-existing conditions under the workers compensation legislation.[73]
[73] See Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [37]. Similar comments were made in Pereira v Siemans Ltd [2015] NSWSC 1133
Given the duration of symptoms we find that the impairment is permanent.
FINDINGS
The replacement certificate is set at the commencement of these Reasons.
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