Reilly v Gordian RunOff Ltd
[2022] NSWPICMP 247
•14 June 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Reilly v Gordian RunOff Ltd [2022] NSWPICMP 247 |
| CLAIMANT: | John Reilly |
| INSURER: | Gordian RunOff Ltd |
| REVIEW Panel: | Principal Member John Harris Dr David McGrath Dr Shane Maloney |
| DATE OF DECISION: | 14 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Mr Reilly was injured in a motor accident in 2015 whilst working as a police officer when he jumped out of the way of a vehicle travelling at high-speed and fell down an embankment; Claimant injured his right shoulder and right hip in the fall; he also claimed that he injured his left shoulder whilst undertaking rehabilitation work at the gym under an exercise physiologist; as the Court held in Hunter v Insurance Australia Ltd, it is sufficient that there is an indirect but foreseeable consequence to establish causation; the Insurer’s submissions did not address the Claimant’s case with respect to the left arm; it was not suggested by the Claimant that he injured his left shoulder during the motor accident; the Claimant’s case has been presented as resulting from the motor accident due to the rehabilitation treatment received in mid-2016; Held- finding made that left shoulder condition caused by the motor accident; Claimant reassessed at 15% permanent impairment. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Gorman dated 27 June 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%: • • right shoulder; • • left shoulder; • • right hip; • • cervical spine (resolved), and • • right upper arm (below shoulder)/elbow (resolved). |
REASONS
BACKGROUND
1. Mr John Reilly (the claimant) was injured in a motor accident on 9 July 2014. At that time Mr Reilly was deploying road spikes on a road in his employment as a police officer when a stolen vehicle veered towards him. Mr Reilly jumped out of the way of the vehicle falling down a gutter and suffering injury.
2. The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Reilly any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
3. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.
4. Mr Reilly claims that he suffered impairment of his cervical, thoracic and lumbar spine, right shoulder, left shoulder, right knee, right hip, right arm and right elbow.
5. 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.
6. 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.
7. 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 and, pursuant to s 63 of the MAC Act, on review by a review panel.
THE REVIEW
8. Medical Assessor Gorman issued a medical assessment dated 27 June 2021 determining that Mr Reilly suffered soft tissue injuries to various parts of the body. The Medical Assessor assessed impairment at 10%.
9. The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.
10. On 24 September 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.
11. 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.
12. 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 Person Injury Commission (the Commission).
13. 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.
14. 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.
15. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
16. The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
STATUTORY PROVISIONS/GUIDELINES
17. 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.
18. Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
19. 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.
20. 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.”
21. 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. In Raina v CIC Allianz Insurance Ltd 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.”
22. 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.
EVIDENCE
23. The parties filed bundles of documents in accordance with the initial Direction.
Pre-accident material
24. Clinical records of the general practitioner refer to neck pain prior to the motor accident from at least October 2013 to 1 July 2014. Endep was prescribed for the neck pain on the most recent visit prior to the motor accident. The clinical note dated 24 March 2014 referred to neck pain since September 2013.
25. Dr Barry McNamara, clinical psychologist treated Mr Reilly prior to the motor accident through the employee assistance program. In a report dated 25 November 2013, Mr McNamara recorded that Mr Reilly reported “severe neck pain”. In a further report dated 17 March 2014 Dr McNamara noted ongoing presentation with severe neck pain with restriction of movement. An opinion was provided that the neck pain may be stress related and that Mr Reilly may be suffering from post-traumatic stress disorder.
Wollongong Hospital
26. Mr Reilly attended the emergency department of Wollongong Hospital following the motor accident. On presentation the nurse recorded that Mr Reilly fell on the right side onto hip with generalised aching in right hip and elbow, may have jarred neck and a small graze on right forearm. The nurse recorded that Mr Reilly “denies hitting head”.
27. The following was recorded under summary of care:
“Presented after injury at work
Stepped backwards and fell down an approx. 1 m drop from the road hitting the right side of his body
Works as a police officer
Main impact on his right hip
Did not hit his head
No loss of consciousness
Pain down right side of body, shoulder, forearm and right hip
Able to mobilise and weight bear
Has not taken any pain relief
History of neck pain being investigated
Did not hit his head or neck in the fall
Neck felt a bit jarred after the fall, no pain or reduced movements now
No numbness tingling or loss of sensation”
28. Examination of the right shoulder is recorded as showing no deformity or swelling, normal range of movement with some minor pain. Examination of the right hip showed pain and tenderness on palpation over right hip, trochanter with normal range of movement. There was no tenderness in the right knee, ankle or foot.
29. Mr Reilly subsequently presented to hospital with chest pain radiating to jaw on 26 December 2017. The previous medical history was “nil significant”.
General practitioner
30. The clinical notes of the general practitioner on 10 July 2014 provide:
“50 yo police officer
Fell about 1 metre sideways from the road, hitting the R hip on the kerb, and R shoulder on the stone wall; pursuing a person of interest at work – in Bulli Pass yesterday.
He was seen ab initio at TWH (see scanned notes).
Worsening pain.”
Examination was directed to the right shoulder and right hip (greater trochanter) and imaging was requested on these body parts.
31. Follow up examination on 14 July 2014 noted waning pain and referral to physiotherapy.
32. A Workcover certificate of capacity dated 10 July 2014 completed by Dr Obinwanor refers to injuries to the right shoulder and right hip. Neck pain is noted as a pre-existing factor. The certificates dated 14 July 2014, 18 July 2014, 22 July 2014 are in the same terms.
33. A referral from the general practitioner to the physiotherapist dated 14 July 2014 noted that Mr Reilly hit his right hip on the kerb and his right shoulder on the stone wall.
34. A medical certificiate dated 9 June 2016 completed by Dr Charles Obinwanor referred to the incident in the following terms:
“[F]ell about one metre sideways from the road hitting R hip on the kerb, and R shoulder on the stone wall, pursuing a person of interest at work, jarring neck and low back as well.”
35. Neck pain is listed on the certificate as a pre-existing factor.
36. Dr Obinwanor completed a questionnaire from the workers compensation insurer on 14 July 2014 when he diagnosed right shoulder and right hip injuries.
37. Patient information from Figtree physiotherapy dated 16 July 2014 noted neck pain as “any other relevant issues” and refers to a workers compensation injury to the right shoulder. The initial consultation notes refer to landing on the right side hitting right hip onto curb and right shoulder onto stone wall.
38. On 23 July 2014 Mr Reilly was assessed as competent to return to pre-injury duties. The injury was described as the right hip and right shoulder.
39. On 22 August 2014 Dr Obinwanor repeated the injuries to the right shoulder and right hip and certified Mr Reilly fit to return to pre-injury duties. The certificate dated 22 September 2014 is to the same effect.
40. A certificate dated 25 November 2014 noted a recurrence of right shoulder symptoms.
41. A certificiate dated 7 December 2015 again noted a right shoulder and right hip injury and certified the claimant unfit for work for that day. The certificate dated 14 December 2015 is in similar terms certifying the claimant unfit for two days.
42. Dr Obinwanor provided a referral dated 17 December 2015 seeking an opinion following worsening pain in the right hip in December 2015. A certificate dated 18 December 2015 noted recent exacerbation of symptoms.
43. Certificates of capacity in August 2016 included the neck and back as injured in the motor accident.
Physiotherapist
44. The physiotherapist notes show treatment commenced on 16 July 2014 for the right shoulder. Neck pain is listed as “any other relevant health issues”. The presenting history refers to injury to right hip and right shoulder and the pain diagram shows right sided pain to the shoulder region and hip.
45. Physiotherapy notes in July 2016 referred to thoracic and lumbar pain as well as right shoulder and right hip pain.
Treating specialist reports
46. Dr Stuart Jansen, orthopaedic surgeon, provided an initial report dated 3 March 2015. The doctor noted the initial shoulder injury and the “reaching” incident around Christmas when Mr Reilly suffered increased pain.
47. Examination revealed good strength with moderate signs of impingement and a stiff neck. Dr Jansen recommended a cortisone injection as an initial treatment option.
48. In a subsequent report dated 27 April 2015, Dr Jansen noted some relief following the cortisone injection and recommended a repeat MRI with a glenohumeral cortisone injection both as a diagnostic and therapeutic test.
49. Following the arthrogram, Dr Jansen reported clinically that the right shoulder was good with no signs of infraspinatus weakness or shoulder irritability. The doctor recommended a “wait and see approach”.
50. Dr Jansen provided a further report dated 14 November 2017. The doctor noted a history of increasing pain and worsening stiffness and diagnosed capsulitis. In a further report dated 18 December 2017, Dr Jansen noted decreasing movement and discussed pain management strategies over the holidays.
51. Dr David Manohar provided a report dated 19 December 2015. The doctor noted the motor accident and opined that Mr Reilly had a pre-existing neck ache which had been aggravated by the jolting injury. Dr Manohar noted recent exacerbation of pain and recommended updated scans to assess any changes.
52. In a questionnaire completed by Mr Reilly for Dr Manohar, Mr Griffiths then indicated that he had also injured his lower back.
53. Following a cervical and thoracic scan, on 5 March 2016 Dr Manohar noted neck and upper dorsal pain and recommended approval for an infiltration of nerve roots in those areas.
54. On 14 April 2016 Dr Manohar performed an RF and PRPP procedure to the right hip. The doctor noted that Mr Reilly was “very tender” over the mid dorsal spine and recommended the procedure be performed from T2 to T5.
55. On 21 May 2016 Dr Manohar noted pain in the T4/5 level extending down to T8 and recommended infiltration at those levels. This was undertaken on 27 May 2016. On 4 June 2016 Dr Manohar opined that the recent diagnostic blocks established the pain generators were in the mid-back region.
56. On 11 June 2016 Dr Manohar noted that the right shoulder was “good”, the right hip is “not yet good” and Mr Reilly still had thoracic pain.
57. On 2 July 2016 Dr Manohar noted that the right shoulder was good, the right hip was “mostly good but he still has pain”. At that time back pain was noted “extending down the legs”. A request was made for a perineural infiltration at the lower lumbar spine which was undertaken on 29 July 2016.
58. On 24 September 2016 Dr Manohar noted Mr Reilly was undergoing physiotherapy twice a week and gym exercise three times a week. Mr Reilly reported pain in the left shoulder, low back and mid back.
59. On 15 October 2016 Dr Manohar opined that the MRI scan of the lumbosacral spine was “quite good” and otherwise noted the partial thickness tear of the left shoulder. The doctor then recommended an ultrasound guided PRP infiltration of the left supraspinatus tear.The procedure was performed by Dr Manohar on 4 November 2016.
60. Dr Tim Steel, head of neurosurgery at St Vincent’s Hospital, provided a report dated 23 December 2016. The doctor obtained a history of back injury on 9 July 2014. The doctor noted mild loss of vertebral body height at T5 and T6 which is “longstanding”. Dr Steel stated that the there was no disc protrusion, nerve compression or significant pathology in the lumbar spine.
61. Dr Steel opined that Mr Reilly did not require surgical intervention as there was no overt spinal cord or nerve root compression or instability.
Claim form
62. Mr Reilly completed an incident form on 9 July 2014 when he described the motor accident as follows:
“Deploying road spikes when vehicle of interest has travelled directly towards me I have had to move quickly to avoid being hit and have fallen into a deep gutter on the Southern side of the roadway. I have fallen with my right hip against the side of the gutter and have tried to break my fall with my right hand and forearm, before hitting my right shoulder against the stone wall, injuring my hip, shoulder, and jarring my neck.”
63. A motor accident claim form dated 10 May 2016 described injuries to the cervico-thoracic spine, lumbar spine, right shoulder and right hip. Previous neck pain from late 2012 was disclosed as a prior injury.
Police report
64. The police report confirmed the motor accident and that Mr Reilly dived out of the way of the vehicle falling heavily on his right hip and sustaining “extensive injuries”.
Statement evidence
65. Mr Reilly provided a lengthy statement dated 16 May 2017. He described his pre-accident health as “good”. He described the accident as follows:
“[A]s I stepped to my right I stepped into the deep gutter which caused me to fall directly onto the right side of my hip and thereby my right shoulder impacting with the gutter wall thereby injuring my right shoulder.”
66. Mr Reilly stated that he was taken to the Emergency Department at Wollongong Hospital and completed an incident report form for the workers compensation insurer when he returned to the station.
67. Mr Reilly provided a further statement dated 24 August 2020. The claimant then noted he had a right foot injury at work on 5 November 2018.
68. In respect of the left shoulder condition, Mr Reilly stated:
“As a consequence of the injuries sustained in the motor vehicle accident [on] 9 July 2014 and undertaking a rehabilitation program at the gym exercising following the medical procedures to my back, right hip and right shoulder, I felt pain and discomfort in my left shoulder due to overuse of my left shoulder.”
69. Mr Reilly stated that he reported these symptoms to his general practitioner and Dr Manohar, initially on 24 September 2016.
Radiology
70. An x-ray and ultrasound of the right shoulder dated 11 July 2014 reported supraspinatus tendinopathy and subacromial/subdeltoid bursitis.
71. An MRI scan of the cervical spine dated 9 December 2014 showed mild posterior protrusions at C5/6 and C6/7. An MRI of the right shoulder showed a tear of the glenoid labrum and a partial thickness tear of the articular surface of the supraspinatus tendon.
72. The claimant underwent an ultrasound subacromial bursa injection on 2 April 2015. An MRI arthrogram of the right shoulder showed a substantial superior labral tear.
73. An x-ray of the pelvic bones and hips dated 11 December 2015 was reported as being essentially normal.
74. A CT scan of the lumbar spine dated 11 December 2015 showed mild degenerative spondylosis of the lumbar spine with spinal stenosis at the L4/5 level.
75. An ultrasound of the right hip dated 16 December 2015 showed thickening of the right trochanteric bursa.
76. An ultrasound of the right shoulder dated 22 December 2015 suggested subacromial bursitis and a partial thickness bursal surface tear involving the anterior supraspinatus tendon. The ultrasound of the right hip taken at the same time showed calcific tendinopathy involving the gluteus medius tendon and features of a mild trochanteric bursitis.
77. Dr Manohar stated that he examined Mr Reilly “under real-time” ultrasound. On 22 December 2015. He opined that the pain was in the right greater trochanter.
78. On 27 February 2016 Dr Manohar noted pain in the tip of the right shoulder and the right hip. The doctor also noted pain in the mid-dorsal spine and tenderness over the cervico-thoracic junction particularly when lifting arms.
79. A CT scan of the cervical and thoracic spine dated 3 March 2016 referred to neck pain and tenderness at C7/T1 and T1/T2. The scan of the cervical spine showed mild bilateral C2/3 facet joint arthroplasty, C5/6 mild protrusion and exit foraminal narrowing at C3/4. The CT scan of the thoracic spine showed evidence suggestive of Scheuermann’s disease and bilateral joint arthrosis in the upper thoracic spine.
80. An MRI scan of the lumbar spine dated 29 June 2016 is reported as showing no nerve root compression, irritation or spinal canal disease.
81. An MRI scan of the lumbar spine dated 7 October 2016 showed no significant disc protrusion and no significant abnormality to account for Mr Reilly’s symptoms. The ultrasound of the left shoulder showed a partial thickness tear of the articular surface of the supraspinatus tendon.
82. An MRI scan of both shoulders dated 1 February 2017 noted a fairly extensive labral tear of the right shoulder and a likely partial thickness tear of the left supraspinatus tendon.
83. An MRI scan of the right shoulder dated 19 October 2017 raised a questionable SLAP lesion, large ganglion cyst, mild arthritis of the glenohumeral joint, marked subdeltoid bursitis and severe degeneration of the acromioclavicular joint. There was no evidence of a rotator cuff tendon tear. An MRI arthrogram dated 4 December 2017 showed a chronic tearing of the labrum.
Qualified opinions
84. Dr John Davis was qualified by the claimant and provided a report dated 1 March 2017. The doctor noted a prior mid/low back injury in 1995 requiring a week off work and neck stiffness from about 2012.
85. Dr Davis recorded a history of injury in the motor accident to the right elbow, right shoulder and right hip. The doctor noted a history of straining the left shoulder at a gym program.
86. Dr Davis opined that Mr Reilly injured the right shoulder, elbow and hip in the motor accident as well as aggravating the neck, lumbar spine and Scheuermann’s disease in the thoracic spine.
87. Dr Michael Davies, neurosurgeon, was qualified by the claimant and provided a report dated 4 September 2017. The doctor noted a history of the motor accident similar to what is recorded elsewhere noting that Mr Reilly did not hit his head but also had pain in the lower back. Dr Davies also recorded physiotherapy treatment following the accident for about three months with “ongoing pain in the neck, back, right shoulder and right hip”.
88. Dr Davies noted an onset of thoracic spine pain in early 2016 and injury to the left shoulder and right elbow around August 2016 whilst having physiotherapy treatment.
89. Dr Davies opined that Mr Reilly sustained direct trauma to the right shoulder and right hip and jarred his neck and low back. The doctor assessed the cervical spine at 5%, the thoracic spine at 0% and lumbosacral spine at 5%. Assessments were also provided for the shoulders although the doctor recommended an opinion from an orthopaedic specialist.
90. In a subsequent report dated 21 November 2019 Dr Davies noted the opinion expressed by Dr Dalton and observed that the histories were different, that is neck and low back pain commenced following the motor accident and that the neck symptoms were different than those experienced before the accident.
91. Associate Professor Michael Robertson diagnosed a chronic major depressive disorder attributable to numerous traumatic stressors as a police officer and the motor accident.
92. Dr Peter Giblin, orthopaedic surgeon, provided a report dated 21 April 2020. The doctor diagnosed injuries to the right shoulder, right hip, neck and low back and a compensatory injury to the left shoulder upon the conservative management of the right shoulder.
93. Dr Seamus Dalton, rehabilitation physician, was qualified by the insurer and provided a report dated 7 June 2019. Dr Dalton noted that Mr Reilly was “anxious and somewhat pain avoidant”. The doctor opined that the radiological evidence showed multi-level degenerative disc disease affecting the entire spine consistent with age. Investigations of the right shoulder revealed longstanding paralabral ganglion cyst in association with a posterior labral tear.
94. Dr Dalton opined that Mr Reilly sustained a soft tissue injury to the right hip and contemporaneous investigations did not indicate any significant hip or gluteal tendon injury. The records indicate a full recovery with ongoing symptoms related to calcific gluteal tendinopathy, a degenerative condition unrelated to the fall.
95. The doctor also opined that the motor accident caused an aggravation of a pre-existing labral tear, paralabral cyst and possible cuff tendinopathy. Mr Reilly “probably developed symptoms of impingement and mechanical shoulder dysfunction as a result of the soft tissue injury and aggravation of the pre-existing labral tear and paralabral cyst”. Subsequent events show further aggravation of this type of pathology. The doctor concluded that the effects of the injury had resolved. Subsequent shoulder dysfunction was related to muscle guarding and co-contraction which is a manifestation of Mr Reilly’s anxiety and pain avoidant behaviour.
96. Dr Dalton did not believe that Mr Reilly had injured any part of the spine. Ongoing symptoms were consistent with the pre-existing degenerative conditions.
Medical assessment
97. Medical Assessor Gorman found that there were a number of soft tissue injuries to the spine, right arm and right hip. Only the right and left shoulders were assessed with any permanent impairment which totalled 10% after a deduction was made for a pre-existing condition of the right shoulder.
SUBMISSIONS
Insurer’s submissions dated 15 December 2020
98. The insurer noted the Wollongong Hospital records and submitted that the claimant did not hit his head or neck. Any neck pain, referred to in the claim form, was pre-existing. Although the claimant may have jarred his neck, this had resolved by the time the claimant attended hospital as neck movements were described as normal and there was no mid-line C5 tenderness.
99. There was no record of neck injury included in the certificates until 24 November 2014 when Mr Reilly was referred for an MRI scan of the cervical spine. Prior records show that Mr Reilly consulted his general practitioner for neck pain between 14 October 2013 and 4 July 2014.
100. The insurer referred to the opinions expressed by Dr McNamara in reports dated 25 November 2013 and 17 March 2014 that the neck condition was stress related.
101. Dr Dalton provided a contrary opinion that the claimant had widespread degenerative spondylosis and cervicogenic headaches to the extent that an occipital nerve block was recommended.
102. The insurer submitted that any thoracic and lumbosacral condition was unrelated and not caused by the motor accident. The insurer referred to the widespread degeneration in the spine and Dr Dalton’s opinion.
103. The lumbar spine was first mentioned on 11 December 2015. Subsequent scans revealed widespread degenerative changes. Thoracic complaints were first made in 2016.
104. The insurer accepted that there was a soft tissue injury to the right shoulder which caused a symptomatic aggravation of a degenerative condition. This condition resolved after a short period. The initial hospital note recorded normal range of movement with minor pain. Subsequent scan evidence showed degenerative changes.
105. Initial physiotherapy showed an improving condition and Mr Reilly returned to pre-injury duties in September 2014. Mr Reilly then suffered “recurred pain”. Dr Jansen recorded that increased pain occurred when Mr Reilly was “reaching to the back of his car”.
106. Thereafter, there was lack of complaint of right shoulder symptoms indicating that the injury was soft tissue only which recovered following appropriate treatment.
107. There was no complaint of injury to the left shoulder until 8 September 2016 and Dr Giblin attributed the left shoulder condition to an aggravation caused by exercises of the gym. Dr Dalton did not diagnose any injury to the left shoulder.
108. The insurer submitted that there was no recorded complaint of right knee injury. There was a single reference in the records of “DB Sports” although no further diagnosis was made.
109. The insurer submitted that the right hip injury had resolved and relied upon the opinion expressed by Dr Dalton. Dr Dalton opined that any flare ups resulted from the natural history of gluteal tendinopathy particularly in the presence of calcification.
110. The insurer relied on the full range of movement at hospital, normal x-ray and clinical examination by the physiotherapist in the months following the motor accident.
111. The insurer relied on the ultrasound findings in late 2015 which was consistent with a history of the flare up at that time.
112. Any right arm/elbow injury was transient and resolved within a short period of the motor accident.
Insurer’s submissions dated 1 September 2021
113. These submissions were filed opposing a review of the certificate issued by Medical Assessor Gorman
114. The insurer submitted that the 1% deduction “was appropriate” and “a large deduction could apply for pre-existing injuries to the right shoulder”. The Medical Assessor made a finding that there was pre-existing disease aggravated by the fall.
115. The Medical Assessor was entitled to accept and find that the physical complaints and restrictions were in part due to manifestations of a psychological state. The insurer otherwise submitted that there was no physical inconsistency, as provided by cl 1.43 of the Guidelines which could be put to the claimant. What the Medical Assessor found, consistent with Dr Dalton’s opinion, was that the claimant’s pain and restriction of movement of multiple body parts was due to a psychological disorder.
116. The insurer submitted that the Medical Assessor otherwise recorded what he was told and made clinical findings base on his examination.
Claimant’s submissions dated 16 August 2021
117. These submissions were filed seeking a review of the Medical Assessment.
118. The claimant asserted he was denied procedural fairness because he should have been given an opportunity to respond to the conclusion that pain and restriction of movement in multiple parts of the body were due to a psychological disorder.
119. The claimant submitted that the Medical Assessor made mistakes in recording various histories and in making clinical findings. He also submitted that the Medical Assessor failed to use a goniometer as required by cl 1.50.1 of the Guidelines.
120. The claimant submitted that the deduction for pre-existing changes in the right shoulder was contrary to the Guidelines as he was entirely asymptomatic prior to the motor accident.
121. The claimant submitted that the lumbar spine should have been assessed at 10% because of the presence of “confirmed spondylosis at all levels of the lumbar spine”. It was also submitted that the hip should have been assessed because Mr Reilly has trochanteric bursitis and limped during the assessment.
RE-EXAMINATION
122. Mr Reilly was examined by both Medical Assessors of the Panel. The joint examination report is as follows:
“Pre-accident history
Mr Reilly migrated to Australia in 1983 and initially worked as a roofer in the building industry for 18 years before he joined the police force. He continued to work as a Highway Patrol officer up until the time of the accident.
There was a history of low back pain in 1995 but he states that he had no time off work. In 2013 he consulted his GP for neck pain and consulted a neurologist Dr Serisier in October 2013 but no physical treatment was given. Mr Reilly continued to work as a police officer which was terminated in December 2020 after being diagnosed with PTSD. In 2017 he had an acute myocardial infarction and in 2018 was diagnosed with atrial fibrillation which recurred in 2021.
History of motor accident
Mr Reilly was working as a Highway Patrol officer on 9 July 2014 and was deploying road spikes in front of a stolen vehicle on Bulli Pass when this vehicle geared towards him collided with his police car and causing him to jump out of the way which resulted in a fall into a steep gutter. He landed on his right shoulder and hip. He states that he had immediate pain in his right arm including the hand and right shoulder with bruising on the right hip due to the impact of his baton on landing. Another police officer drove him to Wollongong Hospital where x-rays of his hip and pelvis reported no fractures and he was discharged home.
History following the accident
Mr Reilly consulted his GP and was prescribed analgesics and referred for physiotherapy. An ultrasound in 2015 reported a rotator cuff tear. He was then referred to an orthopaedic surgeon, Dr Jansen who organise an ultrasound-guided cortisone injection for the right shoulder which gave mild relief. He was also referred to a pain medicine specialist Dr Manohar who undertook three radiofrequency neurotomies and five PRP injections. There was slight improvement in the right shoulder but no significant improvement in the hip or lumbar spine.
There have been no further injuries or accidents since the initial car accident.
Current symptoms
Mr Reilly states that he has persistent pain in the right shoulder which is aggravated with sleeping or any above shoulder work. The left shoulder is sore on occasions. The discomfort in the left shoulder started in September 2016. Mr Reilly states that he was undergoing a gym program and was doing a pulldown exercise under the supervision of an exercise physiologist. He states that he got immediate heavy pain in the left shoulder with this event.
The right knee pain has now resolved. He continues to get pain in the right hip region and slightly in the left which is aggravated with walking. He continues to get a dull ache in the lower back region. There is no discomfort in the legs apart from the right hip region. He occasionally gets pins and needles in the hands which wakes him at night more so on the right but no other pain in the right arm or elbow. There is a poor sleep pattern due to waking with low back pain or lying any shoulders. Mr Reilly states that he walks his dog for about 500 m on a regular basis.
Current treatment
Mr Reilly is on medication for his cardiac problems and takes citalopram for his chronic depression and a sleeping tablet at night. For pain relief he takes a Nurofen or Panadol about two per day and Panadeine Forte 1 to 2 per week. No manual therapy is being undertaken at present.
Clinical examination
Mr Reilly walked into the room with a slight limp and sat comfortably during the interview. He has gained weight in the last couple of years and is now 97 kg with a height of 169 cm.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension were 70% of expected range, rotation and lateral flexion was 50% of expected range with no asymmetry. On palpation there was tenderness in both trapezius muscles but no guarding or spasm was noted.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent.
Thoracic spine
On testing range of movement, flexion/extension, side bending and rotation were all 50% of expected range with no asymmetry. On palpation there was no guarding or spasm and no signs of radiculopathy or non-verifiable radicular complaints.
Lumbar spine
Mr Reilly walked with a slight limp and was able to stand on his heels and toes. On testing range of movement, flexion/extension was 50% of expected range as was side bending. Straight leg raise when lying was 60° bilaterally and limited by tight hamstrings. Sciatic nerve root tension test was negative bilaterally.
On neurological examination of the lower limbs reflexes were equal bilaterally with normal power and no sensory changes were noted with no muscle wasting apparent.
Hips
On palpation there was tenderness over the right greater trochanter and gluteus medius insertion with evidence of trochanteric bursitis. On testing range of movement flexion of both hips was 110° with extension of 0°. Abduction was 30° bilaterally and adduction was 20° bilaterally. Internal rotation was 30° bilaterally and external rotation was 40° bilaterally.
Knees
On testing range of movement flexion was 130° and extension zero bilaterally with no ligament laxity and no crepitus on palpation.
Shoulders
Active movement was measured with the goniometer and repeated three times.
Flexion of both shoulders was 110° with abduction 90° bilaterally. Internal and external rotation were both 80° bilaterally. Extension 40° bilaterally and adduction 40° bilaterally. Impingement tests were negative and no crepitus was detected on passive movement of the glenohumeral joint. Range of movement was limited due to glenohumeral region pain.
| Shoulder Movements | Active ROM Measured RIGHT | R UEI% | Active ROM Measured LEFT | L UEI% |
| Flexion | 110 | 5 | 110 | 5 |
| Extension | 40 | 1 | 40 | 1 |
| Adduction | 40 | 0 | 40 | 0 |
| Abduction | 90 | 4 | 90 | 4 |
| Internal Rotation | 80 | 0 | 80 | 0 |
| External Rotation | 80 | 0 | 80 | 0 |
| UEI % | 10% | 10% |
I have calculated each shoulder to be 10% UEI which converts to 6% WPI. If both shoulders are included that will be 12% WPI. Trochanteric bursitis is another 3% WPI using Table 64.”
FINDINGS
123. The review is a new assessment of all matters with which the medical assessment is concerned.
124. 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 and Insurance Australia Ltd v Marsh.
125. We adopt the joint examination findings of the Medical Assessors supplemented by the following further reasons.
126. At the outset we mention and reject the insurer’s general submission that the history recorded of “nil significant” on 26 December 2017 at hospital in the context of an admission for chest pain means that Mr Reilly did not have physical symptoms relevant to the motor accident at that time. The clinical note must be viewed in the context of what is recorded and why treatment is being provided. Mr Reilly was admitted and treated at hospital for a suspected heart attack. Questions would have been asked of Mr Reilly’s medical history in the context of those symptoms relevant to his admission.
127. The presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”: AAI Ltd v McGiffen. However, we observe that in this case there is not only an absence of record to some body parts in clinical notes, but also an absence of body parts said to be injured in the contemporaneous workers compensation claim form.
128. Finally, qualified opinions that are based on symptoms occurring in specific body parts at the date of the accident rather than a correct history of developing years later have minimal, if any, evidentiary value on the determination of the issue of causation. That error greatly undercuts the value of the opinion as it is not based on a fair climate. These observations apply to portions of the histories provided to Dr Davies, Dr Giblin and Dr Davis who recorded immediate low back symptoms, and in the case of Dr Davis, symptoms in the thoracic spine.
Cervical spine injury
129. The contemporaneous hospital notes indicate that Mr Reilly did not strike his head but that he felt that he jarred his neck. Indeed, the hospital notes are precise as to mechanism of injury and how it affected the cervical spine. The precision of the clinical note suggests accuracy by the author. Examination of the cervical spine at the hospital was otherwise reported as normal.
130. The notation on the initial claim form is consistent with that history.
131. Mr Reilly had a significant pre-existing cervical spine condition. The reports provided by Dr McNamara prior to the motor accident provide contemporaneous evidence of severe neck pain. That history is otherwise consistent with the records of the general practitioner prior to the motor accident of consistent complaints of neck pain and prescription of Endep.
132. In his statement dated 16 May 2017 Mr Reilly does not state that he injured his neck in the motor accident.
133. The various scans establish that Mr Reilly had degenerative changes in the neck and throughout the spine.
134. The Panel is satisfied that the claimant jarred his neck in the motor accident from a fall on his right side when he did not strike his head. The symptoms from the “jarring” would have resolved within a very short period, within days if not hours. The Panel is satisfied that the effects of the motor accident on the neck resolved, and the ongoing symptoms are due to a pre-existing degenerative condition which would have deteriorated in a manner consistent with the degenerative pathology.
135. The Panel is not required to assess permanent impairment of the cervical spine. However, in any event, the findings of the Medical Assessors are that any assessment of the cervical spine would be DRE I and assessed at 0%.
Thoracic spine
136. The thoracic spine is not mentioned in the initial claim form, hospital notes, clinical records of the general practitioner and the physiotherapist. There is no reference in the documents to thoracic spine symptoms until early 2016.
137. Dr Davies, who was qualified by the claimant, recorded that the thoracic spine symptoms commenced in 2016.
138. Mr Reilly’s 2017 statement does not suggest that he injured his thoracic spine.
139. The pathology shown on the scans is degenerative and explains the symptoms developing at that time. The delay in onset of symptoms is consistent with the underlying degenerative condition and bears no causal relationship to the motor accident.
140. For these reasons the Panel is not satisfied that Mr Reilly injured his thoracic spine in the motor accident.
141. We otherwise observe that Mr Reilly did not have symptoms and signs otherwise than DRE I when assessed by the Medical Assessors.
Lumbar spine injury
142. The lumbar spine is not mentioned in the contemporaneous hospital records, by the general practitioner or in the initial claim form as being injured. There was no initial physiotherapy treatment to the lumbar spine.
143. An inclusion of injury in the injured person’s statement and the claim form is relevant to satisfying causation: Bugat v Fox. Similarly, the omission of any reference must also be relevant, but not determinative of the issue that the body part was not injured.
144. The first reference to lumbar spine treatment is in late 2015.
145. The scan evidence shows degenerative age-related changes to the lumbar spine. The onset of symptoms is consistent with age related degenerative changes which will deteriorate over time.
146. A fall on the right side of the body when the right hip was injured may have caused a jarring of the low back. However, whilst various doctors examined the right hip, there is no contemporaneous suggestion of lumbar spine symptoms. Further, the claimant did not state that he fell onto his low back in his 2017 statement.
147. For these reasons the Panel is not satisfied that Mr Reilly injured his lumbar spine in the motor accident.
148. The claimant submitted that the lumbar spine should have been assessed at 10% because of the presence of spondylosis. The submission is incorrect. It is unnecessary to assess a body part that was not injured in the motor accident: Jarvis v Allianz Australia Insurance Ltd.
Right shoulder injury
149. It was accepted that Mr Reilly injured his right shoulder in the motor accident. The nature and extent of the injury were in dispute.
150. The insurer referred to the various clinical records which showed an improvement in the claimant’s condition following physiotherapy treatment, a return to work and then an exacerbation of symptoms in the context of reaching within his car.
151. We accept Mr Reilly’s evidence that he was asymptomatic in the right shoulder prior to the motor accident.
152. The various scans show a partial thickness bursal tear. The fall described by Mr Reilly in the motor could have caused and/or aggravated the underlying right shoulder pathology. The almost immediate onset of pain and treatment over a number of weeks is also consistent with the injury causing a partial tear.
153. The insurer relied on the history record by Dr Jansen of increased pain when Mr Reilly was “reaching to the back of his car”.
154. There are two matters of relevance with the history recorded by Dr Jansen in March 2015. First, the doctor recorded “increased” pain and did not record that the initial pain had resolved. Secondly, the doctor referred to Mr Reilly “reaching to back [of] his car”. The activity of reaching to the back of the car, if this is what Dr Jansen meant, is innocuous and would not cause a tear in the shoulder. The likely medical explanation is that the shoulder was injured in the motor accident, probably a partial tear, was recovering with appropriate treatment but prone to further aggravations from innocuous incidents. This conclusion is consistent with Mr Reilly returning to his employment duties.
155. These findings mean that the “incident” in the car is causally related to the motor accident falling within the first category of State Government Insurance v Oakley.
156. We otherwise accept that there were regular right shoulder complaints establishing a causal nexus between the motor accident and the current impairment. In the expert view on the Panel, the right shoulder did not “recover” because, at the least, there was further tearing caused by the motor accident which meant that it did not recover in a pathological sense as the insurer submitted.
Left shoulder
157. As the Court held in Hunter v Insurance Australia Ltd, it is sufficient that there is an indirect but foreseeable consequence to establish causation.
158. The insurer’s submissions did not address the claimant’s case with respect to the left arm. It was not suggested by the claimant that he injured his left shoulder during the motor accident. The claimant’s case has been presented as resulting from the motor accident due to the rehabilitation treatment received in mid-2016. In these circumstances the insurer’s submissions did not assist the Panel in determining the issue of causation for the left shoulder.
159. Dr Manohar reported an onset of left shoulder pain in September 2016 in the context of Mr Reilly undertaking gym exercise three times per week.
160. Dr Giblin obtained a similar history in his report dated 21 April 2020.
161. Mr Reilly otherwise provided this history in his 2020 statement when he referred to left shoulder pain in the course of a rehabilitation program at the gym.
162. Mr Reilly advised the Medical Assessors that he “was doing a pulldown exercise under the supervision of an exercise physiologist”. That type of rehabilitation treatment for the left shoulder would have been related to strengthening the right shoulder and could cause left shoulder symptoms.
163. We accept that the left shoulder was injured during a rehabilitation program for his right shoulder and is a consequence of this motor accident consistent with the principles in Hunter. This is sufficient to establish that the left shoulder condition is as a result of the injury sustained in the motor accident.
Right arm/elbow
164. The claimant reported pain in the right forearm and right elbow at hospital. Thereafter there was no specific complaint of right arm pain (other than in the shoulder).
165. There was no complaint of right elbow problems until Mr Reilly underwent an MRI scan on 1 February 2017. That scan identified lateral epicondylitis. It is otherwise medically implausible that a fall of the right elbow can cause lateral epicondylitis.
166. Any injury to the right arm/elbow was by way of soft tissue injury which resolved shortly after the motor accident.
Right knee injury
167. There is no contemporaneous record of injury to the right knee. There is a brief reference of knee pain in the records of “DB Sports” without further diagnosis.
168. There is no explanation how or why Mr Reilly injured his right knee in the motor accident. It is not mentioned in any claim form and not referred to as an injury in the statement given in 2017. There is no explained medical basis as to how the right knee could have been injured in the motor accident.
169. We do not accept Mr Reilly injured his right knee in the motor accident.
Right hip injury
170. The insurer accepted that the claimant injured his right hip but that the condition had resolved.
171. The initial scan showed thickening of the right trochanteric bursa consistent with a fall onto the right hip. There is also reference to pre-existing pathology such as calcific tendinopathy.
172. We accept that Mr Reilly was asymptomatic in the right hip prior to the motor accident and sustained injury by way of chronic bursitis. This conclusion is consistent with that part of the opinion expressed by Dr Manohar which we accept.
173. It is otherwise medically plausible that the bursitis did not recover. This is because the disturbance to the pelvic joint means it is not working properly. Bilateral pain in the back and the pain in the hip/pelvis means the bursitis does not recover due to ongoing strain within the region.
174. For these reasons we accept that Mr Reilly continues to suffer right hip problems as a result of the motor accident.
Pre-existing or subsequent injuries causing impairment
175. There is no basis to make any deduction for any pre-existing condition of either shoulder or the right hip. We adopt the reasoning in QBE Insurance (Australia) ltd v Kumar concerning the issue of onus.
176. We otherwise note that the insurer sought to defend the 1% deduction made by Medical Assessor Gorman but failed to refer to any “objective evidence of a pre-existing symptomatic permanent impairment”. The presence of pre-existing pathology is not the same as “symptomatic permanent impairment”.
177. Even if our conclusion on onus is wrong, we are positively satisfied, based on the claimant’s histories to various medical practitioners and the absence of pre-accident complaint in the clinical records, that there was no “symptomatic permanent impairment in either shoulder or the right hip”.
178. Clause 1.34 of the Guidelines makes provision for a deduction for subsequent injuries where there is “objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment”.
179. We do not accept that the reaching incident affecting the right shoulder was “unrelated” to the motor accident. The incident was minor and extremely unlikely to cause any aggravation unless the shoulder joint was pathologically abnormal. Our previous findings with respect to the right shoulder injury means that we have associated at least a significant portion of the right shoulder pathology and the effects of the reaching incident in late 2015 to the motor accident.
180. There is no basis to make any deduction for any pre-existing condition or subsequent injury.
Permanent impairment
181. We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment. Consistent with this conclusion, we observe that the overall loss of range of movement assessed by the Medical Assessors is consistent with the findings of Medical Assessor Gorman.
182. The aggregation of the impairments of the right and left shoulders and the right hip as assessed by the Medical Assessors means that Mr Reilly has a 15% permanent impairment as a result of the injuries caused by the motor accident.
CONCLUSION
183. For these reasons we conclude that the assessment dated 27 June 2021 is revoked. The new certificate is attached at the commencement of these Reasons.
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