Rifaieh v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 722
•21 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Rifaieh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 722 |
CLAIMANT: | Adel Rifaieh |
INSURER: | IAG Ltd t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Lesley Barnsley |
DATE OF DECISION: | 21 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about permanent impairment; assessment review under section 7.26; claimant injured 3 April 2020 when the insured driver collided forcefully with his vehicle; accident caused soft tissue injury in cervical and lumbar spine with both shoulders; complex medical history before accident including pain syndrome and heart disease; shoulders demonstrated variations in range of movement (ROM) in earlier assessments; original impairment assessment 0%; review approved due to the Medical Assessor failing to put inconsistencies to claimant; re-examined; claimant demonstrated variable ROM; overt pain behaviour; demonstrated cervical asymmetry and pain 5% permanent impairment; lumbar spine; pain demonstrated 0% permanent impairment; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd considered for left and right shoulders which demonstrated variable ROM and cannot be considered permanent 0%; claimant questioned about inconsistencies and pain behaviour; Medical Review Panel considered claimant's other medical conditions may impact on his presentation and were not intended to mislead; Held – Medical Assessment Certificate revoked; new certificate; not greater than 10% permanent impairment. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review panel assessment of degree of permanent impairment and threshold injury Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Woo’s assessment and certificate issued on 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate. 3. The motor accident caused injuries with a total percentage permanent impairment of 5%. The total permanent impairment is not greater than 10%. |
REASONS
BACKGROUND
Mr Adel Rifaieh sustained injuries in a motor vehicle accident on 3 April 2020, Mr Rifaieh was the driver of a Honda CRV wearing a seat belt.
A vehicle on his left side failed to stop at a stop sign and collided forcefully into the passenger side of his vehicle.
Police and ambulance arrived at the scene. He was transported to Westmead Hospital.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the Motor Accidents Injuries Act 2017 (MAI Act). The insurer disputed the claimant’s entitlement to non-economic loss damages.
The claimant applied to the Personal Injury Commission (Commission) for medical assessment – permanent impairment.
The Commission referred the following injuries for assessment on the question of permanent impairment:
· cervical spine- soft tissue injury;
· lumbar spine- soft tissue injury;
· left shoulder- soft tissue injury, and
· right shoulder- soft tissue injury.
Medical Assessor Woo issued a certificate dated 17 March 2024 assessing permanent impairment under Schedule 2, s 2(a) of the MAI Act.
He found the accident caused all the referred injuries.
Medical Assessor Woo assessed the permanent impairment as:
· cervical spine-soft tissue injury 0%;
· lumbar spine-soft tissue injury 0%;
· left shoulder- soft tissue injury 0%, and
· right shoulder- soft tissue injury 0%.
That level of permanent impairment established that the claimant could not claim non-economic loss damages.
The claimant applied to the President of the Commission for review stating that the assessment was flawed due to a lack of procedural fairness.
The Commission’s presidential delegate Rachel Britliff referred the medical assessment to a Review Panel (this Panel) on 29 May 2024.[1]
[1] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions, relevant case law on causation and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Medical Assessor Woo’s findings are summarised in Appendix B.
Matters considered and decided by the Review Panel
The Panel met on 11 July 2024 to discuss how this matter may proceed.
The Panel considered re-examining the claimant was required. Medical Assessor Gorman agreed to examine the claimant on the Panel’s behalf on 14 August 2024 and write a report.
At that time, the late Medical Assessor Geoffrey Stubbs was a member but became ill and was unable to remain on the Panel.
The Panel considered the parties’ submissions set out at appendix C.
REVIEW PANEL FINDINGS
Documentation
The Panel also considered the documentation in the parties’ bundles. That is summarised in Appendix D.
Re-examination
Mr Rifaieh attended the assessment on 14 August 2024 accompanied by his wife Lobana.
HISTORY
Pre-accident medical history and relevant personal details
21.Mr Rifaieh was born in Lebanon and is 48 years old.
He came to Australia in 1996.
In Australia, he finished a university course in Mathematics and Arabic Language.
In 2009, he worked as a bus driver with State Transit for eight months and stopped when he underwent stent insertion for ischaemlc heart disease.
He was working as a teacher full-time until 2019 when he underwent a heart bypass surgery on 6 March 2019 and developed post-operative complications.
Since the subject accident on 3 April 2020, he has not returned to work.
He has five children from three marriages. He has a son from his current marriage since 2016.
Past injuries/health
He had right shoulder pain and impingement and had an ultrasound on 11 July 2018 which showed intact rotator cuff and subacromial/subdeltoid bursitis. This improved with massage.
He had back pain and bilateral sciatica and underwent a CT lumbar spine on 8 October 2019 which showed minimal discal pathology at C3/4 and L5/S1.
He has type 2 diabetes and diabetic neuropathy.
He has ischaemlc heart disease and had insertion of stents on two occasions and subsequently underwent a bypass operation. He suffered complications related to the harvest of left radial artery graft.
He had nerve conduction study on 17 October 2019 and Dr Dowla reported;
“Small or absent sensory action potential and compound muscle action potentials, typical of severe axonal sensory-motor polyneuropathy”
He had neurophysiology study on 17 March 2020 (just before the subject accident) and
Dr Bassel Hassan reported:“Moderate severity sensory axonal polyneuropathy in the upper limbs with no asymmetry
Moderate severity left ulnar nerve motor axonal dysfunction with focal dysfunction at the elbow.”
He had pain in his feet then with “tingling” in the feet. These symptoms improved with Ozempic therapy.
Medical Assessor Gorman understood, from what Mr Rifaieh told him, that recent blood tests showed some renal dysfunction.
Dr Alan Nazha, pain specialist, reviewed Mr Rifaieh for chronic pain, in particular regarding the left forearm where the left radial artery was harvested but was found to be unsuitable for graft. Dr Nazha noted on 8 January 2020 the psychological effects of the pain the claimant was experiencing and that he was seeing psychiatrist Dr Anita George. He was on venlafaxine but could not tolerate agents for neuropathic pain. He had been using a Versatis patch applied 12 hours per day over the area of allodynia.[2]
[2] Allodynia is a condition in which pain is caused by a stimulus that does not normally elicit pain. For example, sunburn can cause temporary allodynia, so that usually painless stimuli, such as wearing clothing or running cold or warm water over it, can be very painful.
Medical Assessor Gorman noted that Dr George reported on 9 January 2020:
“On meeting him earlier this week, the essence of my assessment, which would not be unexpected, is that of secondary anxiety and depression (of moderate severity), as a result of severe pain complications post cardiac surgery (on 20/3/19). The pain has produced debilitating and devastating functional impact.”
History of the motor accident
On 3 April 2020, Mr Rifaieh was the driver of a Honda CRV wearing a seat belt. He was going to his sister's home in Merrylands.
A vehicle on his left side failed to stop at a stop sign and collided into the passenger side of his vehicle. His vehicle was pushed, spun 3-4 times before it hit a pole and stopped. All the air bags in his vehicle were deployed. His head hit the air bag and a side window.
Police and ambulance arrived at the scene. He was transported to Westmead Hospital.
His car was written off.
History of symptoms and treatment following the subject accident
At Westmead Hospital, Mr Rifaieh complained of:
“Left lateral neck pain
Thoracic and lumbar pain
Right forearm pain
Left thumb pain
Heavy legs Initially – this later subsided”
He had CT scans, and no fracture was detected in head, cervical spine, pelvis, left foot, right forearm, left hand, right wrist, left hip and left knee.
He was discharged on 4 April 2020.
He came under the care of Dr Rifi, his usual general practitioner (GP). He was referred for physiotherapy and chiropractic treatment. He was also referred to a psychologist and a psychiatrist.
Following the subject motor accident, Dr Nazha reviewed him again on 9 April 2020.
Dr Nazha recommended a trial of spinal cord stimulation through the public system. This treatment was indicated for his pre-existing chronic pain (and not related to the injuries sustained during the subject accident). The notes of that consultation do not mention the accident.He began attending Ellena Daniele (psychologist) from mid-May and continued to attend until early 2021. Physiotherapist Dong Wook Kim treated him at Merrylands Rehab Centre for quite a few sessions as well as the chiropractor. The claimant indicated that these treatments only gave him temporary relief.
The psychologist diagnosed post-traumatic stress disorder whilst the physiotherapist indicated concussion grade 2 with whiplash associated disorder, right shoulder pain and lower back pain with radiculopathy down the right leg.
Details of any relevant Injuries or conditions sustained since the motor accident
NiI reported.
Current symptoms
Mr Rifaieh complains neck pain which is the most severe on the left.
He has shoulder pain, the left worse than the right.
He has low back pain down the legs (right more than left). It radiates to his hips. The leg pain goes from the buttocks to the ankles – not to the feet.
He says that he sleeps a lot and is always tired.
He is not so social now – he reported that he was a community leader but does little of this type of activity now.
The pain in the right hand and wrist is much better now.
Current and proposed treatment
Mr Rifaieh takes Lyrica 75mg bd – the dose was up to 300mg bd.
He is on four Endone per day – a box of 20 lasts him for a week.
He has two Panadeine Forte per day.
He applies Norspan patch 20mcg/hr.
He takes Endep 50g nocte.
He uses Versatis patch dally on the neck and low back.
He is Lipidil for raised cholesterol, Ozempic and Jardimet for diabetes mellitus.
He is on Cartia daily and an anti-hypertensive.
He takes Voltaren when he needs it for pain.
CLINICAL EXAMINATION
General presentation
Mr Rifaieh is right hand dominant.
His left shoulder was held higher.
He is 175cm in height and weighs 86kg.
He walks with an antalgic gait due to back pain and hip pain. He was supported on occasions on the right and on other occasions on the left side by his wife.
He demonstrated marked pain behaviour throughout the examination with his wife helping him move around the examination area.
Cervical spine
There was no tenderness in the cervical spine. There was no guarding or muscle spasm.
Cervical spinal movements were asymmetric as follows:
“Flexion - 2/3 normal
Extension – 1/3 normal
Rotation - 2/3 normal to the right and 2/3 to the left with more pain on turning to the right.
Lateral flexion -1/2 normal to the right and 1/2 normal to the left.”
There were no non-verifiable radicular complaints.
Neurological examination of the upper limbs
The claimant’s reflexes were normal and symmetrical.
There was no weakness in the upper limbs.
There was hypersensitivity over the volar surface of the left forearm. This was as described by Dr Nazha secondary to the radial artery excision. Nerve conduction studies had also suggested a sensori-motor neuropathy.
There was no wasting of the upper limbs. The forearm circumference measured 10cm below the medial epicondyle was 24cm on the right and left.
Lumbar spine
There was no discrete tenderness in the lumbar spine.
Flexion and extension were ¼ normal. Lateral flexion was 1/3 normal to both sides.
Sciatic nerve root tension signs were negative.
There was no dysmetria.
There were no non-verifiable radicular complaints–he said he had pain radiating to both legs and right foot numbness. These symptoms the Panel felt were not non-verifiable radicular complaints as they did not follow any dermatome.
Neurological examination of both lower limbs
Reflexes were equal and normal.
There was skin dysaesthesia in the lower legs and feet which was related to his peripheral neuropathy.
Motor power was normal.
Upper extremity
His wife helped him take off his windcheater.
There was no tenderness over the left shoulder and scapula or the right shoulder. He said that the Versatis patch reduced the skin sensitivity – he therefore did not have the skin sensitivity seen by previous examiners.
Range of movement was measured with a goniometer. The maximum reproducible range of motion is below. But it was variable between attempts
Shoulder Movements
Active ROM
RIGHT
Active ROM
LEFT
Flexion
60°
60°
Extension
20°
20°
Adduction
20°
20°
Abduction
40°
40°
Internal Rotation
80°
80°
External Rotation
20°
20°
There is scarring of the left forearm in the presence of a 22cm scar on the volar side related to the harvest of radial artery graft.
Comments on consistency
The ranges of motion in the cervical spine, lumbar spine and right and left shoulders were variable during the examination.
He demonstrated marked pain behaviour throughout the examination with Mr Rifaieh leaning on his wife when moving around the examination room. The extent of leaning on his wife was inconsistent with significant shoulder pathology.
Medical Assessor Gorman noted that the skin sensitivity was lesser on today’s examination than Medical Assessor Woo’s examination. When Medical Assessor Gorman asked the claimant about why the ranges of motion demonstrated during this exam were much less than for previous examiners, he answered that it was due to variable pain.
DETERMINATIONS
Diagnosis and reasons
Based on the history of the accident, mechanism of injury, clinical and medical imaging findings, as well as the documented multiple significant medical conditions, including pre-existing chronic pain, Mr Rifaieh has the following injuries:
· cervical spine - soft tissue injury;
· lumbar spine - soft tissue injury;
· left shoulder- soft tissue injury, and
· right shoulder - soft tissue injury.
There are no signs of radiculopathy in the upper or lower limbs.
Causation
Mr Rifaieh had symptoms related to the listed injuries immediately or soon after the motor accident.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
• cervical spine - soft tissue injury;
• lumbar spine - soft tissue injury;
• left shoulder - soft tissue injury, and
• right shoulder- soft tissue injury
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent impairment (Fourth Edition) (AMS 4) (p 315) as follows:
· permanent impairment is unlikely to change substantially and by more than 3% in the next year with or without medical treatment and is consider permanent by definition, and
· Mr Rifaieh’s symptoms have remained stable for the last 6-12 months. There is no specific treatment planned. The Panel believes that his impairment is stable for the assessment of permanent impairment.
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines.
Applying their full gamut of medical knowledge, the medical members of the Panel considered that the gross restriction in the shoulder ranges of movement, with variability in the range of movement, is not consistent with any recognised shoulder injury or pathology, and in particular is not consistent with rotator cuff pathology.
Furthermore, the formally measured restriction would not plausibly result from primary injury to the cervical spine. Hence the “Nguyen”[3] case does not apply. The inconsistency between formally assessed and observed ranges of movement in the shoulder preclude the measurements from being utilised for whole person impairment (WPI) determinations under ss 6.40 and 6.41 of the Motor Accident Guidelines (version 9.2). Paragraph 6.50(d) states that “if there are inconsistencies in range of motion, then it should not be used as a valid parameter of impairment evaluation”. The Panel was therefore unable to find any permanent impairment of the shoulders.
[3] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 [95] and [119].
The Panel was mindful of the persistent pain behaviours noted by Medical Assessor Gorman and other assessing doctors. Pain behaviours can occur independently of the degree of physical pain, and the examiner therefore sought to determine the objective findings that are independent of behaviour to afford the claimant procedural fairness. However, the Motor Accident Guidelines bind the Panel, and where there are inconsistencies in ranges of movement, which the claimant does not adequately accounted for then the Panel is not permitted to utilise these movements for WPI assessments.
Cervical spine DRE category II – 5% WPI – based on Table 73 on page 110 of AMA 4
The claimant demonstrated asymmetry of range of motion and ongoing pain. There was no radiculopathy.
Lumbar spine DRE category I – 0% WPI based on Table 72 on page 110 of the AMA 4
There was pain associated with symmetrically reduced range of motion. There were no signs of radiculopathy nor any non-verifiable radicular complaints.
Left shoulder – 0% WPI
While the accident may have directly impacted the shoulder, there is no identified pathology to account for the restricted range of motion. There has been no imaging of the left shoulder, and he did not complain of left shoulder pain immediately after the accident. The chiropractor on
28 April 2024 mentioned neck and right shoulder pain but noted decreased range of motion in both sides.The ranges of motion have been variable with various examiners. Medical Assessor Woo for example found the left shoulder had reduced range of motion compared with the right – Dr Terry Kwong in his report found the opposite. Medical Assessor Gorman found both shoulders symmetrical in their range of motion as did Dr Eddie Price.
While he may have some restriction in motion of the left shoulder due to the neck pain (“Nguyen decision”), it is variable and cannot be considered a permanent impairment.
The Panel concludes that there is 0% WPI in the left shoulder.
Right shoulder – 0% WPI
While the accident may have had direct impact on the shoulder, there is no identified pathology to account for the restricted range of motion. There has been no imaging of the right shoulder, and he did not complain of right shoulder pain immediately after the accident. The chiropractor on 28 April 2024 mentioned neck and right shoulder pain but noted decreased range of motion in both sides.
The ranges of motion have been variable with various examiners. Medical Assessor Woo for example found the left shoulder had reduced range of motion compared with the right –
Dr Terry Kwong in his report found the opposite. Medical Assessor Gorman found both shoulders symmetrical in their range of motion as did Dr Eddie Price.While he may have some restriction in motion of the shoulder due to the neck pain (“Nguyen decision”) it is variable and cannot be considered a permanent impairment.
The Panel concludes that there is 0% WPI in the right shoulder.
Pre-existing impairment
While he had pain before the accident, none of those affected sites were relevant to assessing the injuries referred to the Panel.
The whole person impairment table is set out at Appendix E.
Panel deliberations
The Panel, reconstituted with Medical Assessor Les Barnsley met again on 10 October 2024.
The Panel decided to adopt Medical Assessor Gorman’s examination report with its conclusions and impairment assessment as evidence.
The subject accident caused the injuries referred to the Panel for review.
The Panel discussed whether Medical Assessor Gorman had addressed the inconsistencies he found during his examination sufficiently with the claimant. The Panel considered the reasons the claimant gave when he applied for this review. The Presidential delegate noted the insurer conceded that Medical Assessor Woo had failed to put the claimant’s inconsistencies during his examination sufficiently or at all.
The original assessment’s findings were based on the claimant’s excessive pain behaviour and the inconsistent manner he displayed during that examination in measuring range of movement.
It is reasonable in this case to hypothesise that inconsistency could have been influenced by Mr Rifaieh’s psychological and pain conditions from before and after the accident rather than an attempt to mislead.[4]
[4] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 and Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
However, before the Panel’s examination the claimant was on notice that medical examiners had considered his pain behaviour and the lack of cooperation with examination in how they assessed his permanent impairment. He did not attempt to explain the difference between his condition since the accident from before. His legal representatives did not provide a statement which dealt with those issues, which would have assisted him if he had felt challenged in providing an account.
The Panel considered it had given the claimant sufficient opportunity to respond to the inconsistencies via Medical Assessor Gorman’s questions and when it asked for the claimant’s submissions after the first preliminary conference.
The Review Panel found that the motor accident caused the following injuries:
· cervical spine- soft tissue injury;
· lumbar spine- soft tissue injury;
· right shoulder- soft tissue injury, and
· left shoulder- soft tissue injury.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· lumbar spine- soft tissue injury;
· right shoulder- soft tissue injury, and
· left shoulder- soft tissue injury.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· cervical spine- soft tissue injury 5%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 5%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Woo’s assessment dated 17 March 2024.
Accordingly, the Review Panel will revoke that certificate and issue a new Permanent Impairment Certificate.
Conclusion
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
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.
6.7 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.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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), ss 5D 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.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
APPENDIX B
Original Assessor’s findings
The Commission referred the permanent impairment disputes to Medical Assessor Woo who assessed the following permanent impairment.
Permanent Impairment table
Body Part
or
System
AMA4 Guides/ Guidelines/
References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI
% WPl -from pre-existing OR
subsequent causes
WPI due to motor accident
1
Cervical
spine
Chapter 3
Page 110, Table 73
Yes
5%
0%
0%
2
Lumbar
spine
Chapter 3
Page 110, Table 72
Yes
0%
0%
0%
3
Left shoulder
Chapter 3
Yes
0%
0%
0%
4
Right shoulder
Chapter 3
Yes
0%
0%
0%
* %WPI = percentage whole person Impairment
Medical Assessor Woo noted the same history as Medical Assessor Gorman.
Medical Assessor Woo commented there was conscious guarding while he assessed range of movement in the cervical and lumbar spines with both shoulders. He noticed a full range of neck movement during informal times. He noticed the claimant exaggerated his symptoms and considered related to the alleged injuries were unreliable. Medical Assessor Woo considered the claimant's symptoms reflected chronic pain existing before the subject accident.
He referred to the insurer's report from Dr Eddie Price dated 22 March 2022.
That doctor hypothesised that the subject accident caused "very minor aggravation of his pain syndrome".
He had already received total permanent disability payments before the accident and was already under specialist treatment.
Medical Assessor Woo agreed with that doctor's opinion.
The assessor agreed the accident caused the referred injuries.
He did not find verifiable radiculopathy signs in the upper or lower limbs. He did not find evidence of adhesive capsulitis in either shoulder. The symptoms he demonstrated were in keeping with his pre-existing chronic pain.
Although, Medical Assessor Woo noted his opinion that the claimant was exaggerating his symptoms and that he was inconsistent and guarding his range of movement, that assessor did not put these matters to the claimant so he could respond.
This was the basis for the claimant's application for a review of this medical assessment certificate.
APPENDIX C
Claimant’s submissions
The claimant did not provide the original submissions to Medical Assessor Woo. That assessor only noted the submission that the claimant's permanent impairment was greater than 10% with the insurer denying that.
From the submissions seeking review the Panel notes:
Regarding the cervical spine the Medical Assessor accepted the claimant demonstrated dysmetria in rotation and lateral flexion. The flexion was reduced to 2/3 of normal, although he observed full range when he was not testing.
The Medical Assessor also noted the left forearm circumference was 2 cm bigger than the right arm. That assessor did not comment on Dr Kwong's assessment two years earlier, which noticed the forearms were of equal diameter. The assessor did not address that muscle wasting.
This is a relevant consideration, which must be addressed. It could be a constructive failure to exercise jurisdiction.
Although the claimant demonstrated full range of neck movement when he was not being tested the Medical Assessor did not raise that with him. The insurer conceded this.
Regarding the lumbar spine and Medical Assessor Woo's specific findings on range of movement, non-verifiable radicular complaints, being unable to test lower limb reflexes and decreased left lower limb sensation. The Medical Assessor opined those symptoms reflected chronic pain, which predates the subject accident. He did not refer to weakness or atrophy of the lower limbs, which may have led to a finding of DRE II or III.
The Assessor's assessment determined the claimant’s lumbar spine problems were attributable to his chronic pain condition.
By doing so, the Assessor fell into error because he did not determine permanent impairment existing before the subject accident and then deducted to determine his level of impairment attributable to the subject accident. This is required by Guidelines paragraphs 6.31 to 6.33.
The claimant submits there was no objective evidence of permanent impairment in the affected region before the accident. The pre-existing condition should not be a basis for discounting his current impairment.
In respect of the shoulders: Medical Assessor Woo referred to right shoulder pain and impingement before the subject accident, although an ultrasound on 11 July 2018 showed he had an intact rotator cuff and subacromial/subdeltoid bursitis.
Medical Assessor Woo noticed exaggerated symptoms and considered the clinical signs were unreliable because there was no pathology to identify which explained ongoing symptoms. He attributed the current shoulder symptoms to his pre-accident condition.
That medical assessor found tenderness on the left shoulder and scapula in contrast to a non-tender right shoulder. The range of movement was significantly different between the shoulders.
Despite the medical assessor referring to his shoulder symptoms being in keeping with his pre-existing chronic pain there was no evidence that he had complained of earlier shoulder problems apart from a painful episode in his right shoulder in July 2018, which was treated with a guided steroid injection. Without further treatment this was insufficient to diagnose a condition, which could be used to calculate permanent impairment to be deducted from his current impairment.
The claimant's chiropractor assessed range of movement in the shoulders when he treated the claimant on 28 April and 5 May 2020 (see page 437 and 438 of the insurers bundle).
At that point it was the right shoulder that was limited. The permanent impairment assessment should address this.
Insurer's submissions dated 21 December 2022
The insurer refers to the claimant's general practitioner Dr Jamal Rifi's clinical notes:
The claimant has suffered diabetes over 22 years and gastrointestinal issues from 2008. He also has vision problems;
Cardiac issues were first diagnosed in 2009 and continue;
After a late 2018 heart failure it became necessary to perform a coronary artery bypass graft in March 2019. The graft was taken from the left arm. He continued to have pain in the left arm after that procedure.
His GP referred him to neurologist Dr Dowla in October 2019 to address his post operative burning sensation in his left forearm and hand. It was not responding to high doses of medication. Nerve conduction studies with the neurologist to diagnose irritation to the forearms medial cutaneous nerve and medial nerve, which occurred during the harvesting of the graft. He changed his medication;
The claimant notified Centrelink that he was unfit to work until 18 February 2020, and that this was likely to continue;
A pain physician Dr Alan Nazha reviewed the claimant on 9 January 2020 to treat the complications arising from his cardiac surgery. This was affecting all aspects of his life.
APPENDIX D
Documentation
The Review Panel considered the following documentation as well as Medical Assessor Woo’s certificate.
Application for personal injury benefits dated 20 April 2020
Certificate of capacity/certificate of fitness by Dr Jamal Rifi dated 8 April 2020
Ambulance report dated 30 April 2020
Physiotherapy AHRR dated 28 May 2020, 28 June 2020
Belmore Medical’s clinical notes
Dr M Dowla’s clinical notes
Dr Alan Nazh’s clinical notes
Chiropractor AHRR dated 28 May 2020 one
Back to Health’s clinical notes
Westmead hospital’s clinical notes in discharge summary
Dr Bassel Hassan’s clinical notes dated 17 March 2020
Dr Eddie Price’s report dated 2 March 2022
Dr Mohamad Zoud’s clinical notes
Dr Yishay Orr’s clinical notes
Dr Shareef Dowla’s clinical notes
Dr Reza Moazzeni’s clinical notes
Merrylands Family Medical Practice’s clinical notes
Sydney Pain Specialists’ clinical notes
Dr Terry Kwong’s report dated 22 March 2022
APPENDIX E
Permanent Impairment table
Body Part
or
System
AMA4 Guides/ Guidelines/
References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI
% WPl -from pre-existing OR
subsequent causes
WPI due to motor accident
1
Cervical
spine
Chapter 3
Page 110, Table 73
Yes
5%
0%
5%
2
Lumbar
spine
Chapter 3
Page 110, Table 72
Yes
0%
0%
0%
3
Left shoulder
Chapter 3
Yes
0%
0%
0%
4
Right shoulder
Chapter 3
Yes
0%
0%
0%
* %WPI = percentage whole person impairment
0
3
0