Seadon v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 182
•4 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Seadon v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 182 |
| CLAIMANT: | Kerry Seadon |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Geoff Stubbs |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 4 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor Ho dated 8 June 2021; claimant was injured in a pushbike versus car accident on 2 January 2016; claimant has suffered psychiatric and physical injuries; the claimant has been separately assessed for whole person impairment (WPI) of her jaw injury which attracted a WPI assessment of 22%; this assessment relates to her other orthopaedic injuries; claimant did not attend hospital immediately following the accident but attended her General Practitioner the following day; with respect to this assessment the claimant suffered injuries to her cervical spine, right shoulder, and right knee; claimant is a keen sportswoman and has a history of ACL reconstruction, other incidents with cars was riding a pushbike and jaw injury; Held – Panel satisfied that the injury suffered by the claimant were causally related to the accident as a result of a sudden impact of a pushbike colliding with a car; WPI assessment for cervical spine of 5% and right shoulder of 4% giving a total WPI assessment of 9%. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the Certificate of Medical Assessor Ho dated 8 June 2021. 2. The Panel finds that the injuries suffered by the claimant in the accident on 3. The Panel finds a total whole person impairment of 9% for her physical injuries not including her jaw. 4. The Panel revokes the combined certificate of Medical Assessor McGlynn dated 4 March 2022 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: a. Cervical spine b. Right shoulder c. Temporomandibular joint-soft tissue injury 5. The combined whole person impairment for these injuries is 29%. 6. The combined whole person impairment assessments of 22% and 9% is 29% applying the combined tables. |
REPLACEMENT CERTIFICATE OF DETERMINATION
Determination
The Panel revokes the Certificate of Medical Assessor Ho dated 8 June 2021.
The Panel finds that the injuries suffered by the claimant in the accident on
2 January 2016 are causally related.The Panel finds a total whole person impairment of 9% for her physical injuries not including her jaw.
The Panel revokes the combined certificate of Medical Assessor McGlynn dated 4 March 2022 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:
a.Cervical spine
b.Right shoulder
c.Temporomandibular joint-soft tissue injury
11. The combined whole person impairment for these injuries is 29%.
12. The combined whole person impairment assessments of 22% and 9% is 29% applying the combined tables.
BACKGROUND
This is an application by the insurer to review the decision of Medical Assessor Ho dated 8 June 2021.
The following injuries were referred for assessment:
(a) cervical spine (neck) - soft tissue injury;
(b) right shoulder - soft tissue injury, rotator cuff strain, and
(c) right knee - soft tissue injury.
The Medical Assessor found that the injury caused to the claimant's right shoulder, gave rise to a 2% whole person impairment (WPI).
The Panel has found a 5% WPI for the cervical spine and a 4% WPI for the right shoulder with a combined WPI of 9%
The accident and subsequent treatment
The claimant had an accident on 2 January 2016. The claimant was a cyclist who collided with the insured car when the driver of the car made a right hand turn across her path. The collision caused the claimant and her bike to travel across the car's bonnet and onto the road whilst still attached to her cleats and pedals.
Following the accident, ambulance officers did not attend. The claimant did not go to hospital. The accident occurred late in the day. She went home and saw her general medical practitioner the following day. Initial treatment was physiotherapy, anti-inflammatory medication and analgesics with avoidance of chewing with respect to a separate temporomandibular joint (TMJ) injury.
The following injuries were referred to the Medical Assessor for assessment:
(d) cervical spine (neck) - soft tissue injury;
(e) right shoulder - soft tissue injury, rotator cuff strain, and
(f) right knee - soft tissue injury.
The Medical Assessor found that the following injuries were caused by the accident:
(a) right shoulder;
(b) right knee, and
(c) cervical spine.
The Medical Assessor concluded that the following injuries caused by the accident had resolved:
(a) cervical spine, and
(b) right knee.
The claimant was also assessed separately with respect to an injury to her TMJ. That was the subject of a separate Review Panel decision and for that injury the claimant was recently assessed as having a 22% whole person impairment.
Earlier accident
In 2006 the claimant sustained injuries in another motor vehicle accident. She was cycling and collided with a car when a door opened in front of her path. She sustained a neck injury and developed right side jaw pain.
The claimant was also involved in another car accident in November 2018 but there is no evidence to suggest that this accident has affected the injuries suffered by her on
2 January 2016.
Claimant's submissions
The claimant says that the Medical Assessor accepted that the claimant had suffered injury to her cervical spine. However, the claimant says that the Medical Assessor asserted that the injury to the cervical spine had resolved.
The claimant said that the Medical Assessor recorded that in relation to the cervical spine, she noticed “more discomfort on the right side of the neck in the paraspinal region. It goes down to the medial scapular region and also go [sic] to the front in the chest wall area” (page 4 line 5 and following). The claimant submits that it is therefore incorrect to assert that the accepted cervical spine injury has resolved.
The claimant says that it is notable that the Medical Assessor has not commented on the presence or otherwise of muscle guarding or non-verifiable radicular complaints.
The claimant relies on an impairment assessment report of Dr Bodel at page 2 paragraph 2 which states:
“She has asymmetry of movement and guarding but no clinical signs of radiculopathy.”
The claimant also relies on the Motor Accident Guidelines 2016 (the Guidelines) which provide at 6.117:
“The medical MA may consider Table 6.7 (below) to establish the appropriate category for the spine impairment.”
The claimant submits that the Medical Assessor erred in applying a range of motion (ROM) model to the cervical spine injury and should have instead used Table 6.7 of the Guidelines, particularly in circumstances where muscle guarding is relevant in determining the appropriate category in Table 6.7.
Concerning the claimant’s right knee disability, the claimant submits that the Medical Assessor accepted that the she suffered injury to the right knee. However, the claimant says that the Medical Assessor also asserts that the injury to the right knee had resolved.
With regard to the claimant’s right knee, the claimant refers to the report of Dr Bodel again, at page 4 where he says;
“There is very mild retro patellar crepitus in the region of the right knee
and some pain on resisted knee extension.”Dr Bodel at page 2, paragraph 3 noted:
“Painful retro patellar crepitus in the region of the right knee.”
Following on from this, the claimant submitted that the Medical Assessor erred in his assessment of the claimant’s right knee in circumstances where he failed to:
(a) address the presence or otherwise of crepitus in his examination of the claimant, particularly in circumstances where there is a finding of crepitus by an independent medical examiner, and
(b) consider the footnote to Table 62 on page 83 of AMA4 in his assessment of the claimant’s WPI, with the footnote stating:
“In a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on roentgenograms, a 2% whole person or 5% lower extremity impairment is given.”
Concerning the claimant’s right shoulder disability, the claimant submitted that the independent medical examiners qualified by the claimant (Dr Bodel) and:
“the insurer (Dr Wallace) also record range of movement of the right shoulder. The claimant says that the result of each recording is significantly different and significantly different to that recorded by the MA.”
The claimant says that in the circumstances where three different examiners record significantly different ROM, the Medical Assessor should have had regard to the provisions of 6.50 of the Guidelines which provide:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessment. Range of motion is assessed as follows:
(a) ‘A goniometer should be used where clinically indicated…
(b)…
(c)If a Medical Assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions’.”
The claimant says that the Medical Assessor should have been satisfied that due to the inconsistency of ROM recorded by three different examiners, that it was appropriate for him to have regard to the provisions of the Guidelines.
The claimant submits that the Medical Assessor erred in:
(a) not using a goniometer as envisaged in 6.50 (a) of the Guidelines, and/or
(b) not measuring the ROM with at least three consistent repetitions as envisaged in 6.50 (c) of the Guidelines.
The claimant says that the Medical Assessor's medical assessment of the claimant is not correct in a material respect.
Insurer's submissions
Regarding the claimant’s complaint about her cervical spine, and the assertion that the Medical Assessor did not consider the claimant’s complaints of discomfort, the insurer referred to the claimant’s assertion that the Medical Assessor had incorrectly found that the soft-tissue injury to the claimant's cervical spine has resolved on account of the symptoms presented by the claimant.
The insurer says that this assertion is made on the basis that the claimant, in the examination, reported "more discomfort on the right side of the neck in the paraspinal region goes down to the medial scapular region and also go to the front in the chest wall area ... " and thus, the cervical spine injury is not resolved.
The insurer submits that when reporting the symptoms, the claimant continued on to suggest that "she also believes may be related to the jaw problem on the right side rather than the neck problem itself”, demonstrating that the claimant was unsure of where the source of the impairment was.
The insurer responds by submitting that this complaint was addressed by the Medical Assessor as he reported that "It feels a little bit tight but there is [sic] no abnormal neurological symptoms in the upper limb as she told me that nerve conduction test has been done when she first complained of numbness in the fingers and the test was all normal”.
The insurer submits that the Medical Assessor had addressed the complaint and reached an appropriate conclusion based on his findings that there was no permanent impairment arising from the claimant's reported symptomatology.
The insurer refers to the submission by the claimant to the Medical Assessor’s clinical examination of the cervical spine where she asserts that the Medical Assessor has failed to comment on the presence of 'muscle guarding or non-verifiable radicular complaints'. In this regard the insurer noted that the claimant relied on the findings of Dr Bodel in his report dated 7 September 2020 where the claimant was found by
Dr Bodel to demonstrate guarding and no signs of radiculopathy.The insurer highlighted that the claimant's assertions are based on findings of muscle guarding nine months prior to the assessment conducted by the Medical Assessor, who assessed that the soft tissue injuries in the cervical spine had resolved.
The insurer made reference to the claimant’s assertion that the Medical Assessor erred in applying the ROM model to the cervical spine injury when he should have instead used Table 6. 7 of the Guidelines.
The insurer submits that the Medical Assessor had, in the clinical examination of the cervical spine, not been able to identify any deformities or muscle spasms and had conducted an assessment of ROM to properly discharge his obligation in assessing the claimant's injuries.
The insurer submits that the Medical Assessor had employed the correct method of assessment as it was provided that the findings were based on the diagnosis of a resolved soft tissue injury and not due to the ROM exhibited by the claimant.
Concerning the claimant’s right knee, the insurer refers to the claimant’s assertion that the Medical Assessor had failed to address whether or not crepitus was present in the examination of the claimant's right knee.
The insurer says that the assertions of the claimant are noted to be based on findings of crepitus nine months prior to the assessment conducted by the Medical Assessor who assessed that the soft tissue injuries in the right knee had resolved.
The insurer highlighted that the Medical Assessor, in his examination of the claimant's right knee, had discharged his obligation by employing full use of clinical tests to determine that the claimant had suffered a soft tissue injury which had resolved.
The insurer says that in his examination of the right knee, the Medical Assessor stated the following:
"Right knee showed the abrasion scar from the accident about 5 x 1cm in the
anterolateral aspect. There are a couple of surgical scars from the previous AGL
reconstruction. There is no area of tenderness on palpation. There is no evidence of ligamental laxity on comparing the right and the left knee in relation to Lachman test and anterior drawer tests. Varus and valgus stress test are also symmetrical to the other side. The insurer submitted that, in consideration of the clinical tests performed, there was no obligation for the MA to explicitly report every symptom which does not appear and had there been any presentation or complaints of crepitus, it would have been reported in the path of reasoning for how his findings were reached.”Regarding the claimant’s right shoulder, the insurer submits that s 6.50(c) of the Guidelines confers the power to make judgment on the reliability of measurements obtained in examination upon the 'Medical Assessor’ who in this case, was the Medical Assessor himself.
The insurer says that in the clinical examination of the right shoulder, the Medical Assessor reported the following:
"Range of movement are [sic] good except some end range loss of movement on the right shoulder, no evidence of impingement. All the rotator cuff [sic] are strong."
The insurer says that the Medical Assessor diagnosed the claimant as suffering from "soft tissue injury to the right shoulder which improved substantially with physiotherapy''. The insurer submits that the Medical Assessor’s assessment of the claimant's right shoulder fulfils the obligations conferred by the Guidelines and contains no error in its conduct.
Medical reports
Various medical reports involving the claimant’s orthopaedic injuries, in addition to the claimant’s temporomandibular injuries, have been relied upon by the parties. The Panel has considered all of the reports but for the purposes of this assessment, specifically takes into account the reports relating to the claimant’s orthopaedic injuries.
Regarding the assessment of the Medical Assessor, he observed that in relation to the right shoulder the claimant probably had intensive physiotherapy for six months then she noticed the improvement and now and then she may have some treatment because she was still involved in triathlon activities until the end of 2016, so sometimes she had to see the physiotherapist for problem in various areas. But she stopped doing triathlons from 2017 because running was difficult. She still continued to ride the bike.
She complained of some soreness in the right shoulder mainly in the front and inside the joint. The shoulder is a bit stiff but it is not bad enough to seek any treatment as she is already on pain killers for the jaw problems so it seems to cover it very well. With the right knee she does not notice any swelling or stiffness, just feels not as strong some time once in every few days may have a clunk and painful basically some anterior knee pain.
In relation to the cervical spine she notices more discomfort on the right side of the neck in the para spinal region it goes down to the medial scapular region and also goes to the front in the chest wall area but she also believes it may be related to the jaw problem on the right side rather than the neck problem itself. It feels a little bit tight but there are no abnormal neurological symptoms
The Medical Assessor said that using the American Medical Associtation Guidelines for the Evaluation of Permanent Impairment, 4th ed, (AMA 4) Figure 38, 41 and 44 flexion 170° is 1% upper extremity impairment, extension of 30° is 1%, adduction of 30° is 1%, abduction of 170° is 0%, internal rotation of 70° is 1%, external rotation of 90° is 0%. So there is 4% of upper extremity impairment which will be equal to 2% WPI, 0% right knee on Table 41, 0% cervical spine on Chapter 3.3.
The Medical Assessor found a total WPI of 2% for the right shoulder only.
Clinical Notes of FMP Medical Practice shows a first entry following the accident of
3 January 2016:“involved in road accident 2nd January. Whilst in North Wollongong cycling towards Stuart Park, a car turned across her and she went over the bonnet. Injury to right and left knee, minor bruising, right shoulder is a concern, limited adduction and painful arc. For ultrasound as suspect bursitis. Jaw pain right TMJ, pain and crunching.”
The claimant was noted as having severe psychiatric issues but this is not for consideration of this Panel as is the injury to her TMJ, not for consideration.
Dr Bodel provided a report for the claimant of 7 September 2020.
Dr Bodel provided an orthopaedic opinion. He said that the claimant suffered a neck injury, a right shoulder girdle injury and a right knee injury. She had extensive injuries to the face and a head injury and psychological issues which Dr Bodel said were matters outside his level of expertise.
From the orthopaedic point of view, Dr Bodel said that the disabilities were pain and stiffness in the neck and right shoulder and the anterior knee pain in the right knee.
Dr Bodel said that the claimant’s prognosis was reasonable and he anticipated further significant improvement with regular exercise. Dr Bodel saw no indication for surgery for the neck, right shoulder or the right knee.
For the insurer, Dr Wallace provided two reports. The first report is dated
25 March 2019.Examination of the claimant’s cervical spine showed no swelling or deformity.
She had a range of movement of flexion 70 °, extension 40 °, left rotation 80 ° and right rotation 80 °, left lateral tilt 20° and right lateral tilt 40°. There were no tender areas.
Examination of her bilateral shoulders showed no swelling or deformity. She had a range of movement at her bilateral shoulders of flexion 180, extension 40, abduction 180, adduction 40, external rotation 80, and internal rotation 80.
Dr Wallace provided a diagnosis of;
(a) musculoligamentous strain cervical spine;
(b) right TMJ injury;
(c) rotator cuff strain right shoulder, and
(d) soft tissue injury right knee - now resolved.
Dr Wallace said that the claimant’s cervical spinal and right shoulder conditions had been caused by injuries sustained as a result of a bicycle motor vehicle accident of
2 January 2016.Dr Wallace provided a second report dated 1 September 2020.
He reported that the claimant’s cervical spinal, right shoulder and right knee injuries sustained as a result of the accident of 2 January 2016 had resolved.
Dr Wallace said that the claimant’s right knee injury had resolved at the time of his previous review in March 2019.
He reported that the claimant noted no current symptoms at her cervical spine or right shoulder.
Dr Wallace said that the claimant complained of no current symptoms at her cervical spine, right shoulder or right knee. Her cervical spine, right shoulder and right knee injuries had resolved.
Dr Wallace also noted that the claimant had suffered a previous cervical spine injury as a result of a motor vehicle accident in 2006 and that this had resolved.
There is a Vocational Capacity Centre report of 29 November 2021 however its contents do not assist the Panel for the purposes of consideration of assessment of the claimant’s WPI.
Panel medical examination
Medical Assessors Oates and Stubbs examined the claimant on behalf of the Panel. Their report follows.
KERRY SEADON 10366236 – medical examination conducted by Medical Assessors Oates and Stubbs at PIC on 30 November 2022.
Ms Seadon is now 47 years of age. She attended the clinical examination by herself. She lives in the Wollongong area. She last worked as a ministerial assistant in the New South Wales Education Department in 2019. She reported that her current unemployment is a consequence of her January 2016 motorcar/bicycle accident.
The accident
At the time of the accident, she was 41. She was divorced in 2009 and living alone. She was a competitive triathlete who last raced in April 2015. She had resumed training in the off-season with the intention of competing again in February 2016. She was between jobs, having previously worked as a teacher in the Catholic Education System and was yet to start her new job as a ministerial assistant with the New South Wales Education Department. She thought herself well and was looking forward to her new position. She lived alone in a mortgaged unit in Port Kembla. She employed a cleaner. There was a previous cycling accident in 2006 which will be detailed below.
The accident occurred in the last stages of 50km bicycle ride. She was about 10km from her home and riding along a beachside road with adjacent car park. A car travelling in the opposite direction crossed to the wrong side of the road and she struck the left front of the oncoming car and was thrown across the bonnet landing on her right side beside the car. She was wearing a bicycle helmet. The accident was at relatively low speed. She was able to free yourself from her bicycle, her left foot having stuck in the cleat during the accident. The immediate injuries were to the right side of her face, neck, right shoulder, right elbow and right knee. She exchanged details with the driver and continued her ride. It quickly became apparent that there was a crack in the bicycle frame, so she called a friend who drove her home. She was not working at this time and visited her family medical practitioner the first available appointment. Nonsteroidal anti-inflammatory agents and physiotherapy were arranged together with investigations of the right shoulder.
Her initial complaints concerned soreness about the neck and right shoulder, some abrasions to her right knee, right elbow, and a recurrence of right TMJ pain first suffered in the 2006 cycling accident. An ultrasound was arranged for a right shoulder and Ms Seadon believes this showed bursitis, though that finding is probably normal in competitive swimmers. Her increasing TMJ pain led to referral to a maxillofacial surgeon, Dr Lydia Lim. Over the next three years four surgical interventions were performed for the TMJ pain and dysfunction. These were self-funded. The first intervention was an arthrocentesis, an arthroscopic examination of the joint. Hyaluronic acid was injected. This resulted in a temporary improvement in pain and jaw movement. A further arthrocentesis was performed. As Ms Seadon reported to the Medical Assessors: a visiting US facio-maxillary surgeon observed the procedure on the monitor and noted that there was a rupture of the meniscal cartilage of the TMJ and advised interposition arthroplasty as a possible further procedure. The second arthrocentesis was no more successful than the first, there was only a temporary improvement in comfort and range of motion. A meniscal resection and interposition arthroplasty was then performed. This produced the same temporary improvement but no lasting benefit. Finally, in late 2018, a prosthetic temporomandibular joint replacement was performed. This resulted in some improvement by diminishing the sharp motion-related pain in the jaw but not the constant ache nor was there any lasting improvement in jaw opening.
The other injuries improved spontaneously. The right knee is no longer a problem. Shoulder stiffness has diminished with improved function. Her neck remains stiff and sore but responds to local treatment; all are now tolerable. However, her work requires frequent oral presentations and she found she could not continue working. She therefore left her job as a ministerial assistant in 2019.
Her present situation is this – she has recently gone on to the disability support benefit following a period on a New Start allowance. She is very worried about being able to maintain mortgage payments on her unit. She was on a mortgage relief program, but this has ceased and will not be renewed. She can no longer pay the cleaner she had before the accident. She is stressed and despondent. Were it not for the motor vehicle accident she would be working on a full-time basis in a responsible and challenging position and still competing in triathlons.
The present medication regime is Celebrex daily, 15 mg of naloxone daily together with Endone 10 mg as required (a packet of 20 last a little over two weeks). The last operation has reduced her opiate requirement from hydromorphone 32 mg daily. She attends a pain clinic at the Port Kembla hospital. There is discussion about whether she might be better with transdermal fentanyl and has been offered a Norspan patch. She has a transcutaneous electrical nerve stimulator but this is not being used presently. She is attending courses in cognitive behaviour therapy.
History
In 2004 there was a right knee anterior cruciate ligament reconstruction for a sports injury. The surgery was successful, the knee was not a problem in her tri-athletics career and though temporarily painful after 2016 accident has since returned to its usual pain-free fully functional status.
There was another bicycle/car accident in 2006, this also occurred during a training ride. The driver of a parked car opened their door as Ms Seadon, rode past. She had her left calf catch on the edge of the open door which pitched her forward from the bicycle and she landed on her right side, sustaining a calf laceration. She was seen at the accident emergency service of the Wollongong Hospital on the day of the accident, 21 January 2006. The calf wound was sutured she was observed and then allowed home to the care of a husband. She saw her general practitioner for further management on the first available appointment. She had right sided TMJ symptoms following that accident. Dr Nigel Curtis reported to Allianz about this injury in December 2007 and thought arthrocentesis appropriate. He saw her again and reported to McCabe Curwood in February 2009.
All the injuries from this accident had resolved by late 2009.
Other events
There have been several episodes of giving way of both ankles. These are usually minor though the injury of 2009 resulted in a minor fracture requiring treatment.
Ms Seadon also suffered from Lofgren syndrome, a form of sarcoidosis. This disease is characterised by hypersensitivity reactions to medications, infections, and other inflammatory diseases. No specific cause was identified but trauma is not suspected. Ms Seadon was treated with oral prednisone on a reducing dosage over eight months with full resolution.
Subsequent events
Fractured right ankle 2019.
Bilateral carpal tunnel symptoms – nerve conduction study in January 2020 was normal.
May 2020 – fractured humeral head left shoulder after a fall in her bathroom.
More recently she has suffered from capillary leakage syndrome a rare condition of unknown cause. Is characterised by leakage of fluid into the soft tissues. This has been present since 2019 and requires about monthly concentrated plasma protein infusion.
Clinical examination
Ms Seadon attended alone. She was straightforward in giving the history and fully cooperative in the clinical examination. She has a normal walking pattern and a good balanced stance. She stands 173cm tall and has gained weight since her competitive days. She now requires size 14 dress size.
She has a normal walking pattern and can tip toe and heel toe walk and manage sustained single leg stands with clinical grade 5/5 power in the lower limbs.
Her cervical spine has some mild tenderness to firm palpation over the right hand side of the back and side of the neck and right trapezius. Flexion and extension are full but there is a noticeable difference between rotation and side bending right and left. Turning to the left causes a stretching feeling in the right sided neck musculature and leads to asymmetry. There is continuing low-grade persistent symptomatology particularly under stress or using computer screens. There is moderate benefit from self-treatment with heat and range of motion exercises There is no spasm or guarding brisk symmetrical reflexes and equal upper limb girth. There are no sensory disturbances and no signs of peripheral nerve compression. Previously there had been some transitory carpal tunnel like symptoms in the right upper limb. The nerve conduction study was negative for carpal tunnel compression and the symptoms have resolved.
Ms Seadon is DRE II in the cervical spine due to asymmetry of motion – 5% WPI. The Panel applied tables 6.7 and 6.8 of the Guidelines. Table 6.7 applies a DRE II categorisation when there is low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria). Table 6.8 when referring to non-uniform loss of spinal motion (dysmetria) says that this is sometimes caused by muscle spasm or guarding. To qualify as true non-uniform loss of motion the finding must be reproducible and consistent. The Medical Assessor must be convinced that the individual is cooperative and giving a full effort. The Panel is satisfied that the results of examination are such that the claimant’s disabilities fall within the definitions in Table 6.7 and 6.8.
Upper limbs are normal to inspection with a normal neurological examination as noted above.
Elbows, wrists, hands, and fingers move fully and freely. Girth of the upper limbs is the same on each side. There is a mild difference in shoulder range of movement as recorded in the table below. Motor strength is 5/5 in the rotator cuff shoulder musculature as it is in the rest of the arm musculature. There is a mild mid arc click in the bicipital groove in flexion.
| Right | % UEI | left | |
| Flexion figure 38 | 160° | 1% | 180° |
| Extension | 40° | 1% | 60° |
| Abduction figure 41 | 160° | 1% | 170° |
| Adduction | 30° | 1% | 40° |
| External rotation figure 44 | 70° | 70° | |
| Internal rotation | 60° | 2% | 70° - 1% |
| Total | 6% | 1% |
Column 3 of the above table equates at 6% - 1% = 5% upper extremity impairment (UEI) to 3% WPI with reference to figures 38, 41 and 44 at pages 43-45 of the AMA 4. For conversion of UEI to WPI see table 3 at page 20 of the AMA 4. There are no injuries to the left shoulder, however there is mild restriction of internal rotation and, using the uninjured joint as a baseline, a deduction is made.[MAPIG cl 6.51]. There is modest residual impairment in the right shoulder. The persistent and reproducible click would indicate the likely cause is within the shoulder itself. Given the modest level of impairment, treatment is not required and further investigations are not indicated.
Lumbar spine - there is full symmetrical motion in all arcs. The reflexes are brisk and symmetrical. There is a 10cm difference in thigh circumference measured proximal to the patella between the right and left thighs. Straight leg raising is unrestricted and there are no traction signs. Neurological examination was normal. There is no impairment.
Lower limbs – scars consistent with anterior cruciate reconstruction with hamstring tendon graft are just perceptible around the right knee. The knees flexed comfortably to 130° on both sides and fully extend. There is some faint retro patella crepitus in both knees through full arc of motion. There is no accompanying tenderness. The right thigh is 1.5cm less in circumference from the left which is put down to the old anterior cruciate ligament injury. Both knees are stable with negative jerk and pivot shift tests. The 2004 anterior cruciate reconstruction is very satisfactory and the right knee is free from any clinical osteoarthritis.
There is a planovalgus flat-footed stance on both sides. The right ankle/foot shows what might be interpreted as the “too many toes sign” but clinical testing of the tibialis posterior tendon gives a 5/5 grade of muscle strength on both sides and tiptoe walking shows a dynamically low arched foot. Ms Seadon has some constitutional flat foot; this causes no impairment and requires no treatment.
Discussion
Ms Seadon suffered a fall with the right side of her head striking the ground. She was wearing standard cycle helmet which has no facial protection. She would also likely made contact with her right shoulder she was still partly on the bicycle. The neck is thus forced to the left and the right shoulder depressed. Soft tissue injury to the cervical spine and moderate injury to the right acromioclavicular joint would be anticipated from the mechanism of injury. Bicycle helmets do not provide facial or jaw protection, injury to the right temporomandibular joint is therefore plausible but the mechanics and management of TMJ injuries are not part of either Medical Assessors’ expertise nor for consideration in this assessment.
Persistent but modest symptoms in both the cervical spine and right shoulder are expected. Both these injuries should be self-managed, techniques include simple modalities such as heat, over-the-counter analgesics, and home exercise programs. Neither injury is likely to benefit from aggressive investigation and management.
The right knee injury is fully resolved.
She does have a need for ongoing chronic pain management as she is presently taking the equivalent of about 50 mg of morphine per day. Attendance at a pain management Centre with the principal aim the of reducing or even eliminating opiate medication is desirable.
Combined WPI
Five per cent (cervical spine) combined with 4% (right shoulder) gives 9%.
The Panel adopts the report and findings of Medical Assessors Oates and Stubbs.
Causation
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[1] Justice Walton set aside the decision of a Medical Review Panel. The discussion in Kinchela concerning the correct principles to apply relating to causation are set out below:
"[38] The second defendant's task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs
[1] [2021] NSWSC 804, Kinchela.
In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
“[31] One of the pivotal questions for the Panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the Panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders'.
[32] While I accept that, as an administrative decision-maker, the Panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW)(2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.”
In McGiffen, the Court of Appeal held at [64] – [65]:
“[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the Panel's Certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge for jurisdictional error.”
It was held that the second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (CLA) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.
As Justice Walton observed in Kinchela, the CLA is relevant. In s 3B various liability is excluded from the Act; however, sub-section (2) provides that "Divisions 1-4 and 8 of Part 1A (Negligence)" apply to motor accidents. Sections 5D and 5E relating to causation are in Division 3 of the CLA. Therefore, they apply to the Motor Accident Injuries Act 2017 (MAI Act). The common law principles, as discussed in the above authorities, apply.
The Motor Accident Guidelines 2016
The Guidelines identify the test for causation in cls 6.6 and 6.7.[2]
[2] Causation is defined in the Glossary at page 316 of the AMA 4 Guides.In Ackling v QBE Insurance (Aust) Ltd, [3] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[4]
[3] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[4] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW),[5] Campbell J adopted Justice Johnson's approach with a caveat touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the MA's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that 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 Civil Liability Act 2002, s 5D. (See s 3B(2))."[6]
[5] [2012] 61 MVR 245; [2012] NSWSC 650.
[6] At [27].
The Civil Liability Act 2002
Justice Campbell in Owen, said s 5D of the CLA needs also to be considered when assessing causation.
113.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[7] and
"scope of liability".[8][7] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[8] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Did the injury to the claimant's cervical spine, right shoulder and right knee arise from the accident?
Assessing "factual causation" and "scope of liability" involves making value judgments.[9]
[9] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”[9]
Neither party has made submissions that the injuries suffered by the claimant, do or do not arise from the accident.
The Panel is of the finding that the circumstances of the accident, involving the claimant who was riding a push bike and who collided with a car, sending her over the bonnet while still attached to her bike by her cleats and the pedals, are such that it would not be unreasonable for the claimant to injure her cervical spine, her right shoulder and her right knee.
CONCLUSION
The Panel revokes the Certificate of Medical Assessor Ho dated 8 June 2021.
The Panel finds that the injuries suffered by the claimant in the accident on
2 January 2016 are causally related.The Panel finds a total WPI of 9% for her physical injuries of her cervical spine and right shoulder, not including her jaw.
The certificates of Medical Assessor Ho and Medical Assessor McGlynn and the combined certificate of Medical Assessor Ho are revoked. A new combined certificate is attached at the commencement of these reasons.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
0
8
0