Simonyan v QBE Insurance (Australia) Limited
[2023] NSWPICMP 130
•5 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Simonyan v QBE Insurance (Australia) Limited [2023] NSWPICMP 130 |
| CLAIMANT: | Sona Simonyan |
INSURER: | QBE (Insurance) Australia Limited |
| REVIEW Panel | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 5 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 11 October 2017; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; Panel re-examined claimant; first complaint of shoulder injury symptoms 19 months after the accident; scans showed injury was not traumatic; Raina v CIC Allianz Insurance Ltd, Sydney Trains v Batshon, Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and Bugat v Fox considered; Held – Review Panel found no nexus with shoulder injury and accident; permanent impairment 5% cervical spine; previous certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate dated 14 November 2021 and issues a new certificate determining that: · cervical spine – soft tissue injury. |
REASONS
BACKGROUND
Ms Sona Simonyan (the claimant) suffered injury in a motor accident on
11 October 2017 when the insured vehicle struck the vehicle she was driving on the right side. The claimant describes a jarring feeling but no direct impact between her body and the inside of the cabin. The airbag was not deployed and the claimant was able to climb out of the vehicle without assistance.
She experienced severe neck pain the morning after the accident and consulted her doctor about six days later.
At the time Ms Simonyan reported having generally good health. She was working as a sales agent in a shoe store at the time of the accident, and she changed her job due to her symptoms.
Subsequently, Ms Simonyan has had continuing right shoulder problems, and ongoing neck and right shoulder pain. In 2021 she was working in a jewellery store 15-20 hours per week, and her family is assisting her at home. Her current treatment includes medication as required.
The insurer insured the owner and driver of the motor vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
There was a dispute about the claimant’s entitlement to non-economic loss. The claimant applied to the Personal Injury Commission (the Commission) to have permanent impairment assessed.
Medical Assessor Ian Cameron examined the claimant and provided a certificate dated 14 November 2021.
The claimant’s lawyer applied for referral of a medical assessment to a Review Panel within 28 days after the parties were issued with Medical Assessor Cameron’s assessment.
On 3 March 2022 the delegate of the President referred the medical assessment to a Review Panel as she was 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.
STATUTORY PROVISIONS
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides 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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 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 involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [1] 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.”
[1] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
Part 5 of the Personal Injury Commission Act 2020 enables the Personal Injury Commission (the Commission) to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
Assessment under Review
In the Medical Assessment Certificate dated 14 November 2021, Medical Assessor Ian Cameron found the motor accident caused the claimant’s right shoulder and cervical spine which gave rise to a permanent impairment which was not greater than 10% (total assessed was 2% permanent impairment).
During the clinical examination, Ms Simonyan exhibited markedly and symmetrically reduced range of motion at the cervical, thoracic, and lumbar spine, as well as inconsistent movement due to variable pain in the right shoulder region.
Medical Assessor Cameron referred to relevant documentation including the motor vehicle accident medical certificate, MRI of the cervical spine, and MRI of the right shoulder. The report of Dr Stephenson, medicolegal orthopaedic surgeon, provides an assessment of permanent impairment. Dr Conrad and Dr Darveniza provided medicolegal surgeon's reports, which included evaluations and recommendations.
Disputes and issues identified
The following aspects of the assessment were disputed:
(a) In relation to the Medical Assessor’s Certificate and Reasons concerning the whole person impairment of the claimant’s neck the claimant submitted the Medical Assessor;
(i)failed to have any regard to the opinions of Drs Conrad or Darveniza in assessing whether there was intermittent muscle guarding, and
(ii)committed a clear error of law on the face of the records in incorporating into his reasons the reasoning process for another unrelated claim.
(b) In relation to the claimant’s assessment of whole person impairment of the right shoulder it was submitted the Medical Assessor:
(i) made a clear error in failing to identify the claimant had significant pathology in her right shoulder causing her symptoms including a significant restricted range of movement;
(i) should have assessed whole person impairment as Drs Darveniza and Conrad did, based on the claimant’s range of movement, and
(i) the attribution of the claimant’s variable restriction of movement due to pain as inconsistent was unfair and of itself inconsistent with the other medical opinions. For example Dr Darveniza was able to assess whole person impairment based upon his findings of restricted range of movement.
In response to the Panel’s direction made following the teleconference on 21 April 2022 the claimant submitted that the claimant attended an appointment with Dr Peter Conrad on 29 October 2018 where she complained of neck and right shoulder pain.
The claimant instructed that her right shoulder pain became more noticeable approximately one month following the motor vehicle accident. The claimant also denied any previous neck or right shoulder pain and/or injuries. Dr Conrad recommended an MRI of the right shoulder due to the chronicity of her symptoms.
The claimant underwent an MRI of the right shoulder on 30 November 2018 which showed supraspinatus and infraspinatus partial tears with associated moderate subacromial subdeltoid bursitis as well as a SLAP II tear and anterior glenoid cartilaginous disruption. Dr Conrad stated in his report dated 13 December 2018 that the scan of the right shoulder showed severe pathology, and the motor vehicle accident caused this pathology.
The respondent opposed the application.
Documentation
The Review Panel considered the following documentation before the Panel met:
(a) Medical Assessor Cameron’s certificate dated 14 November 2021;
(b) Application for review and attached documents;
(c) Reply and attached documents;
(d) the Proper Officer’s Statement of Reasons issued by the Proper Officer on 3 March 2022 referring this matter to a Review Panel, and
(e) all the documents which were provided to Medical Assessor Cameron prior to the assessment under review, except for the scans which were not available to the Panel.
THE REVIEW
The Review Panel met initially on 21 April 2022.
The Review Panel considered afresh all aspects of the assessment under review.
The Review Panel determined that re-examination of the claimant was necessary in order to reach a decision, because this was a sensitive matter and because the Panel wanted to ask questions of Ms Simonyan about her MRI scans while she was present.
The Panel directed the claimant to bring hard copies of her MRI scans to the examination. The Panel considered this satisfied the requirements set out in Batshon.[4]
[4] Sydney Trains v Batshon [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Accordingly, arrangements were made for Medical Assessor Assem and Medical Assessor Stubbs on 31 August 2022 to examine the claimant, who attended without the MRI scans.
The Review Panel agreed to reconvene on 4 October 2022 to discuss the matter further.
The Review Panel decided that the claimant’s MRI scans were still required to make a decision. It was necessary to make additional directions for the claimant to provide those scans.
Arrangements were made for the Review Panel to reconvene for a third conference to discuss the matter further.
REVIEW PANEL FINDINGS
Clinical examination
Medical Assessor Stubbs and Medical Assessor Assem examined Ms Sona Simonyan on 31 August 2022 at the Commission’s rooms. She presented as a 42-year-old lady with a Masters degree in translation and interpretation.
She had a history of bilateral sacroiliitis and bilateral inflammatory arthritis of both hips with significant secondary degenerative changes particularly in the right hip that was managed by Dr Whittaker (rheumatologist). At the time of the accident, she was a contract employee with Ecco in a shoe store.
Ms Simonyan confirmed that on 11 October 2017, she was driver a 2004/2005 model Lexus vehicle that was hit in the right-hand side by a utility vehicle. She described a jarring injury to her body but there was no direct impact to any part of her body within the cabin of the vehicle. The airbag was not deployed. She was able to alight from the driver’s side of the vehicle without assistance. She was in shock but did not experience any discomfort. Her vehicle was towed away and later written off for insurance purposes.
A friend transported Ms Simonyan to her workplace and she was able to work that day. The following day she experienced neck discomfort radiating to her right scapula and shoulder but continued working. She consulted Dr Ekmejian on 18 October 2017 (seven days after the motor vehicle accident) as she assumed that her symptoms would subside.
The Panel brought to her attention that there was no contemporaneous record of an injury to her right shoulder until 17 May 2019 (approximately 19 months after the motor vehicle accident) when she described a two-day history of right shoulder ache with particular movements after going to the gym.
She had difficulty recollecting events but believes that there was a gradual onset of right shoulder pain, stiffness and swelling that commenced several months after the motor vehicle accident without any identifiable reason.
A report of the MRI scan of the right shoulder on 30 November 2018 identified partial tears of the rotator cuff, subacromial/subdeltoid bursitis and a SLAP II tear. The radiologist opined that the appearances are suggestive of advanced right shoulder inflammatory arthritis with secondary osteoarthritis. Ms Simonyan did not bring the radiology images to the assessment.
She did not receive physiotherapy treatment until she travelled to Armenia in 2019. She could not recall whether she consulted Dr Whittaker again after the motor vehicle accident. She did not receive any physiotherapy treatment. She reported that her right shoulder symptoms have fluctuated in intensity, but it feels better today. She manages her symptoms with Mobic. She does the cooking at home. Her husband and children perform the heavier housework. She relies on the compensatory use of her left arm for any activities above shoulder height. She also lifts her grocery shopping with her left arm.
During the examination Ms Simonyan appeared well and in no apparent distress. She was cooperative during the examination. The Panel members informed her not to engage in any manoeuvre beyond what she could tolerate, or which may cause harm or injury.
Cervical spine (cervicothoracic) and head
On inspection: She had a normal posture. There were no scars or deformities. She reported tenderness on palpation but there was no muscle guarding or spasm. On formal examination there appeared to be a deterioration in her cervical movements compared to the range observed when looking to the left and right at the examiners during the interview. The slight inconsistencies were brought to her attention, but she continued to demonstrate a moderate restriction in cervical motion. The Panel gave her the benefit of the doubt and considered that there was asymmetry of spinal movement.
| MOVEMENTS | RANGE EXHIBITED |
| Flexion | 1/4 |
| Extension | 3/4 |
| Rotation to the right | 1/2 |
| Rotation to the left | 1/4 |
| Lateral bending to the right | 1/2 |
| Lateral bending to the left | 2/3 |
SENSATION: Normal
REFLEXES:
| REFLEX | LEFT | RIGHT |
| TRICEPS JERK | Normal | Normal |
| BICEPS JERK | Normal | Normal |
| BRACHIORADIALIS | Normal | Normal |
SENSATION: No obvious alteration in normal sensation.
MUSCLE POWER: Grip strength was 4/5 on the right compared to the left but power was otherwise normal in all muscle groups.
Strength testing was performed with the elbow by the side eliminate any influence of the
inflammatory arthritis in the right shoulder.
| LEVEL | MOTOR POWER | LEFT | RIGHT |
| C4 | 5/5 | NORMAL | NORMAL |
| C5 | 5/5 | NORMAL | NORMAL |
| C6 | 5/5 | NORMAL | NORMAL |
| C7 | 5/5 | NORMAL | NORMAL |
| C8 | 5/5 | NORMAL | NORMAL |
| T1 | 5/5 | NORMAL | NORMAL |
NEURAL TENSION TESTS: Negative
Right shoulder
There was wasting of the right deltoid and suprascapular musculature. She reported tenderness over the subdeltoid margin. Her movements were relatively consistent on repeated testing. Her left shoulder was hypermobile. Active range of motion was as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 120° | 200° |
| Extension | 50° | 60° |
| Adduction | 50° | 50° |
| Abduction | 90° | 180° |
| Internal Rotation | 25° | 80° |
| External Rotation | 60° | 120° |
Conclusion
Cervical spine
The Panel is satisfied that Ms Simonyan sustained a soft tissue injury to her cervical spine as it was supported by the contemporaneous medical records. On clinical examination, there was asymmetry of cervical motion (Motor Accident Permanent Impairment Guidelines), paragraph 4.16, p 26) giving a DRE Cervicothoracic Category II or 5% whole person impairment (AMA4, 3/104).
Right shoulder
The Panel was not satisfied that there was any contemporaneous evidence of an injury to her right shoulder. Although her treating doctor documented symptoms referred to her right scapula, there was no evidence of an injury localised to her right shoulder joint. The Panel brought to her attention that her right shoulder symptoms were not documented until 19 months after the accident. In response, she indicated that her right shoulder symptoms commenced gradually several months after the motor vehicle accident without any identifiable reason.
The Panel notes the opinion of Dr Stephenson, orthopaedic surgeon, in his report dated 13 March 2020. He awarded 5% whole person impairment for her right shoulder then suggested that she should see her rheumatologist. Dr Conrad, surgeon, comments on the MRI scan of her right shoulder in his report dated 28 May 2021 but appears to dismiss the critical part of the radiology report – comment: overall appearance is suggestive of advanced right shoulder inflammatory arthritis with secondary arthritis.
View of MRI scans
Medical Assessor Stubbs was able to view the medical imaging on
21 November 2022:“135 de-identified good quality MRI images were posted in the portal (AD7). There was an accompanying radiology report from City X-Ray by Dr John Bamidele of 30 October 2018 (AD8) which matches the imaging seen.”
Medical Assessor Stubbs saw marked distension of the shoulder joint. The intensity of the imaging is less than the signal intensity of synovial fluid and has a fine granular pattern. This is consistent with synovial hyperplasia. The hyperplastic synovial expands the rotator interval and synovial tissue is seen spreading outside the shoulder capsule into the sub acromial/subscapularis bursa antero-superiorly. Similarly the tissue extends into the space below the infraspinatus posteriorly and inferiorly into the bursa of the latissimus dorsi. Directly inferiorly there is a globular enlargement of the inferior capture recess by hypertrophied synovial tissue. There are scattered irregular specks of darker material in the area of synovial hypertrophy probably fibrin deposits.
The humeral head shows extensive punched out erosions filled with hypertrophied synovial tissue at the juxta-articular margins of the humeral head and the glenoid. The erosions and humeral head multiple a large, there are three smaller erosions on the glenoid margin. This is consistent with Pannus formation and subsequent bony erosion. This is a hallmark of chronic inflammatory synovial hypertrophy. There is a moderate level of synovial hypertrophy in the subacromial/subdeltoid bursa which has the same signal intensity as the synovial hypertrophy in the rest of the shoulder.
The bone of the humeral head and the glenoid shows very little oedematous reaction. There is very little intensely bright signal on the T2 images consistent with synovial fluid. The distension of the shoulder joint is not due to an effusion. The articular cartilage of the humeral head and glenoid is variably eroded and some small posterior osteophytes seen in the inferior humeral head in the posterior inferior glenoid. There is some secondary osteoarthritis.
There is a grade 2 SLAP lesion produced by penetration of the synovial tissue under the bicipital tubercle. This does not have a traumatic appearance, rather the labrum and biceps insertion are displaced by aggressive synovial tissue. The inferior posterior fibres of the infraspinatus show a ragged disruption. Primary traumatic rotator cuff tears do not occur in the inferior infraspinatus. The cause is aggressive synovial hypertrophy.
The MRI fits the hallmarks of active rheumatoid arthritis:
(a) marked synovial hypertrophy causing distension rather than synovial fluid effusion;
(b) punched out juxta-articular erosions;
(c) minimal oedema response in the bone and surrounding soft tissues, and
(d) features of rotator cuff injury are atypical in appearance and secondary to the aggressive synovial reaction.
The differential diagnosis would include other forms of aggressive synovial hypertrophy which would include sero-negative arthritis, axial spondylitis, pigmented villonodular synovitis and atypical fungal and protozoal infections in the immune suppressed. The specific diagnosis would be made by a rheumatologist after consideration of the history, physical findings, arthritis distribution and laboratory investigation.
The delay gradual onset of right shoulder discomfort is consistent with the inflammatory arthropathy identified on radiological imaging rather than any specific trauma to her right shoulder and the radiological appearance of these injuries is very unusual for mechanical trauma. Had she sustained a significant injury to her right shoulder causing internal derangement, she would have experienced symptoms immediately after the accident that would have interfered with her ability to work as a sales assistant in a shoe shop.
Panel deliberations
The Panel adopted the findings from the examination and the scans provided after the examination.
The Panel found there was asymmetry in the cervical spine movements and found DRE category II.
The Panel noted the claimant’s submissions that Dr Conrad had found trauma in the right shoulder consistent with impact in the motor accident.
The Panel concluded that the delayed gradual onset of right shoulder discomfort is consistent with the inflammatory arthropathy identified on radiological imaging rather than any specific trauma to her right shoulder. Had she sustained a significant injury to her right shoulder causing internal derangement, she would have experienced symptoms immediately after the accident that would have interfered with her ability to work as a sales assistant in a shoe shop.
The Panel notes that the principal in Bugat v Fox[5] that the presence or absence of contemporaneous evidence of injury is relevant but not determinative when considering causation. It is understood that the absence of a contemporaneous complaint of injury will not automatically sever the link of causation. Accordingly, the Panel considered the following:
(a) the plaintiff reported a number of injuries in a personal injury claim form which was dated a day after the accident and did not refer to her right shoulder;
(b) Ms Simonyan did not complain about her right shoulder until 19 months after the accident, when it hurt after a gym session, and
(c) during the Review Panel assessment, Ms Simonyan confirmed the above history of shoulder pain;
(d) the appearance of the right shoulder in the scans taken 30 November 2018.
[5] Bugat v Fox [2014] NSWSC 888.
It appears Dr Conrad and other specialists overlooked the reported appearances in the shoulder MRI scans that were suggestive of advanced right shoulder inflammatory arthritis with secondary osteoarthritis.
Panel decision
The Review Panel found that the motor accident did not cause the following injury:
· right shoulder – soft tissue injury.
The Review Panel decided that the following injury give rise to a permanent impairment:
· cervical spine – soft tissue injury.
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine – soft tissue injury | Chapter 3, page 103 (AMA4) | Yes | 5 | 0 | 5 |
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment is not applicable.
Apportionment is not applicable.
Degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident
The motor accident caused injuries which are assessed as a total percentage permanent impairment for assessed injuries of 5%. Therefore the total whole person impairment is less than 10%.
Permanent impairment ratings take symptoms into account; however the percentage whole person permanent impairment is not a direct measure of disability. A finding of 0% whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Permanent impairment
The Review Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the motor accident are different to Medical Assessor Cameron’s Permanent Impairment certificate.
This Panel finds, the motor accident did not cause the following injury:
· right shoulder – soft tissue injury.
This Panel finds, the motor accident caused the following injury:
· cervical spine – soft tissue injury.
This is different to Medical Assessor Cameron’s certificate which assessed that the accident caused both injuries listed above and rated the right shoulder injury with permanent impairment at 2% and the cervical spine at 0%. Accordingly, the Review Panel will revoke the earlier certificate and issue a new Permanent Impairment Certificate.
Review Panel Certification
Member O’Riain, Medical Assessor Assem and Medical Assessor Stubbs have reviewed this certificate and confirmed they are in agreement.
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