Suncorp (Qld) v Jankowski
[2024] NSWPICMP 294
•13 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Suncorp (QLD) v Jankowski [2024] NSWPICMP 294 |
| CLAIMANT: | James Francis Jankowski |
| INSURER: | Suncorp (QLD) |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 13 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 29 December 2015 on the Pacific Highway near Tyndale; the claimant was riding his motorcycle which was struck in the rear by a truck; injuries to neck, back and both shoulders; medical dispute as to whole person impairment; Medical Assessor Berry found 14% whole person impairment for left shoulder and lumbar spine; Review Panel assessed left shoulder by analogy because of inconsistencies in movement; Review Panel found soft tissue injury to lumbar spine not caused by motor accident; Held – certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) 1. The Review Panel revokes the certificate dated 8 June 2023 issued by Medical Assessor Neil Berry and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairmet of 8% and IS NOT GREATER THAN 10%: • cervical spine – soft tissue injury; • thoracic spine – soft tissue injury; • right upper extremity (shoulder) – soft tissue injury; • left upper extremity (shoulder) – soft tissue injury, and • scarring – left shoulder. (b) The motor accident did not cause an injury to the lumbar spine. An assessment of the degree of impairment of the lumbar spine is therefore not required. |
STATEMENT OF REASONS
INTRODUCTION
James Francis Jankowski (the claimant) was injured in a motor accident on
29 December 2015 on the Pacific Highway near Tyndale (the accident). The claimant was riding his motorcycle on his way to Sydney. Coming into Tyndale, he reduced his speed to comply with the town limit. As he did so, he was hit from behind by a pantechnicon truck, which struck his rear wheel. The claimant was able to remain upright on his motorcycle and to bring it to a halt on the roadside. The driver of the truck stopped briefly to render assistance before leaving. A friend took the claimant to John Hunter Hospital emergency department where he was examined and subsequently discharged. The claimant suffered injuries to his neck, back, left and right shoulders. He was treated conservatively by his general practitioner. The claimant did attempt to return to work as a Trade Assistant but ceased after a few weeks, due to pain, and has not worked since.Suncorp (the insurer) insured the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages under the Motor Accident Compensation Act 1999 (the MAC Act).
The issue in dispute is the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident (including whether the degree of permanent is greater than a particular percentage).
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of the review was conducted by Medical Assessor Neil Berry on 5 June 2023. Medical Assessor Berry was to assess the degree of permanent impairment under s 58(1)(d) of the MAC Act arising from injury sustained in the motor accident. Medical Assessor Berry certified on 8 June 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 14% and is GREATER THAN 10%:
- Cervical spine – soft issue injury
- Thoracic spine – soft tissue injury
- Lumbar spine – soft tissue injury
- Right upper extremity (shoulder) – soft tissue injury
- Left upper extremity (shoulder) – soft tissue injury
- Scarring – left shoulder
THE REVIEW
The application for referral of the medical assessment of Medical Assessor Berry to the Panel was made by the insurer on 26 June 2023, within 28 days after the parties were issued with the original Certificate of the medical assessment, for which the review is sought.
The insurer submitted that there is more than a reasonable cause for suspicion that Medical Assessor Berry’s assessment was vitiated by the following material errors with respect to the assessment of the lumbar spine:
(a) failure to adequately consider the relevant material;
(b) failure to provide sufficient reasons;
(c) failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding the relevant material, and
(d) materiality of the error.
In short, the insurer submitted that the claimant did not sustain an injury to the lumbar spine in the accident. It highlights that there was no contemporaneous complaint of back injury, at the time of the accident, and no recorded complaint occurred until eight months thereafter. The insurer relied upon a report dated 19 April 2018 by Dr Robinson who opined that the claimant’s lower back pain was not causally related to the accident, and instead stemmed from a workplace injury suffered in 2000.
The insurer submitted that, in accordance with decided authority, where more than one conclusion is open, on the issue of causation, it is necessary for a Medical Assessor to give some explanation for her/his preference of one conclusion over another, particularly where the Medical Assessor has come to a different conclusion from that reached by other medical practitioners. The insurer submitted that Medical Assessor Berry provided no reasons for his opinion that the lumbar spine injury was caused by the accident, in circumstances where there was no contemporaneous evidence of complaint, and the insurer raised causation of the alleged lumbar injury as an issue in dispute.
The insurer’s review application was opposed by the claimant. The claimant submitted that the issue of causation involves both a medical decision and a non-medical informed judgement. Further, the claimant submitted that causation can be assesses by considering whether the injury was causally or materially contributed to by the accident. Those submissions are not contentious. It was submitted for the claimant that Medical Assessor Berry made a finding that the claimant sustained a blow across the back. It was noted that the claimant asserts he hurt his back in the accident. The claimant submitted that Medical Assessor Berry fulfilled his statutory obligation and disclosed the actual path of his reasoning in relation to causation.
President’s delegate Sophie Jones issued a Determination of an Application for Review of a Medical Assessment on 4 September 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Berry’s failure to provide reasons in relation to his finding that the lumbar spine injury was caused by the accident and failure to address a substantially made argument regarding causation of the lumbar spine injury.
Accordingly, the application was accepted and was referred to the Panel, which is to assess the following injuries:
(a) cervical spine – soft tissue injury;
(b) thoracic spine – soft tissue injury;
(c) lumbar spine – soft tissue injury;
(d) right upper extremity (shoulder) - soft tissue injury;
(e) left shoulder – soft tissue injury, and
(f) scarring.
The parties were invited to indicate if any of the assessments made by Medical Assessor Berry are accepted and are not required to be re-assessed. The insurer confirmed that it required all of the referred injuries to be re-assessed. The claimant did not respond. Accordingly, all of the referred injuries were re-assessed.
The Panel has not been provided with any diagnostic scans of the claimant’s spine pre-dating the accident. There must be objective evidence of impairment to make deduction for previous injuries to the cervical/thoracic/lumbar spine. The Panel can find no evidence of prior complaint of back injury in the claimant’s pre-accident clinical notes. The insurer referred to Review Panel to the records of Main Street Medical Centre (A27) and notes that, on 17 March 2014, Dr Williams referred the claimant for an MRI scan of the cervical spine due to cervical radiculopathy right-sided C7/C8 root.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. The matter is determined at first instance by a Medical Assessor pursuant to s 63 of the MAC Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables 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 Medical Assessor.[1]
[1] 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) Claimant’s submissions dated 24 November 2021 to Medical Assessor Berry and supporting documents.
These submissions focussed upon whole person impairment associated with the left shoulder. It was noted that the claimant has undergone three operative procedures since the subject accident being:
(i)an arthroscopy with subacromial decompression and mini open rotator cuff repair and bicep tenodesis on 27 March 2017;
(ii)revision arthroscopy with debridement of subacromial bursa and acromioplasty on 24 January 2018, and
(iii)left arthroscopic acromioplasty, distal clavicle extension with revision cuff repair on 25 July 2019.
(b) All three of these operations were paid for by the insurer.
(c) It was submitted that the claimant continues to experience significant symptoms in his left shoulder. In his whole person impairment assessment dated 19 April 2018, Dr Robertson assessed left shoulder upper extremity impairment (UEI) as follows:
(i)abduction 60 degrees – 6% UEI;
(ii)adduction 20 degrees – 1% UEI;
(iii)internal rotation 40 degrees – 3% UEI;
(iv)external rotation 45 degrees – 1% UEI;
(v)flexion 90 degrees – 6% UEI, and
(vi)extension 10 degrees – 2% UEI.
(d) The claimant noted that the total UEI for the left shoulder was 19% which converts to 11% whole person impairment. The claimant further noted that, in accordance with the relevant permanent impairment guidelines (particularly cl 1.51), it is impermissible to use UEI associated with the right shoulder joint as a baseline, because it was injured prior to the subject motor accident (paragraph 13 of the insurer’s submissions). In a subsequent report dated 25 May 2020, Dr Robinson confirmed his prior assessment of whole person impairment.
(e) It was submitted for the claimant that the real issue is whether the impairment of the claimant’s left shoulder is causally related to the motor accident. The claimant acknowledged the insurer’s reference to a clinical note of Dr Williams dated 19 November 2014 (just before the accident) which refers to a supraspinatus tear. The claimant referenced Dr Williams’ response to the insurer as follows:
“Certainly, his left shoulder was severely injured from the motorcycle accident that he was indeed lucky to survive. This was the first time the shoulder was scanned since 2013 (when a bursitis but no tear was noted). The loss of power and severe pain subsequent to the MBA was of a different level compared with prior to the accident and could only be attributable to the accident.”
(f) The claimant then references a medico-legal report dated 29 September 2016 by Dr Robinson who was qualified by the insurer. Dr Robinson reviewed the clinical notes and could not see evidence of any investigations showing a supraspinatus tear prior to the consultation on 19 November 2015 with Dr Williams. Dr Robinson concluded as follows:
“Thus it would be reasonable to assume that the tear as seen did occur at the time of the injury…..”
(g) The claimant acknowledges there was some complaint of left shoulder symptoms before the subject accident. However, the claimant submitted that considerable weight should be placed upon the report of Dr Williams (the treating GP) and also submits there is no data which records whether, and the extent to which, those symptoms would allow for the calculation of pre-existing whole person impairment.
Finally, it was submitted that the claimant had undergone three surgical procedures, all paid for by the insurer, resulting in surgical scarring that is not insignificant.
(h) Clinical notes of Dr Williams dated 19 November 2015 with correspondence.
(i) Certificate and reasons of Medical Assessor Berry (previously summarised).
(j) Claimant’s reply submissions dated 25 August 2023 (previously summarised).
(k) Decision of President’s delegate Sophie Jones dated 4 September 2023 (previously summarised).
The insurer relied upon the following material:
(a) Insurer’s submissions dated 21 December 2023 for review of Medical Assessor Berry’s certificate. The insurer’s primary position is that the motor accident did not cause any injury to the claimant’s cervical spine, thoracic spine, or lumbar spine, for the reasons articulated in its submissions to Medical Assessor Berry (previously summarised). The insurer noted that the claimant made previous complaints in relation to his cervical spine and thoracic spine as recorded in the clinical notes. The insurer acknowledges there are no recorded complaints of lumbar spine symptoms in the clinical notes but observes there is evidence the claimant suffered lower back pain stemming from a workplace injury suffered in 2000. The insurer highlighted the absence of complaints made in relation to the spine following the motor accident. In relation to alleged back injury, the insurer submitted there was no contemporaneous complaint of back injury, at the time of the motor accident, and no recorded complaint until 18 months after the motor accident.
(b) Certificate dated 15 December 2023 and reasons of Medical Assessor Michael Hong who found that the following injuries caused by the motor accident give rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%:
(i)relapsed of major depressive disorder, and
(ii)new Alcohol use disorder
Medical Assessor Hong found 7% whole person impairment on the Psychiatric Impairment Rating Scale which he increased by 1% for treatment effects. Medical Assessor Hong made no adjustment for pre-existing or subsequent impairment. Medical Assessor Hong’s certificate and reasons are of no relevance to the matters the subject of this review.
(c) There are three medico-legal reports of Dr Christopher Oates, occupational physician, to the claimant’s solicitors. Those reports are dated 27 October 2016, 23 November 2017, 30 November 2017 and 9 December 2018. All of those reports are served in the insurer’s case. In his most recent report, Dr Oates says there was guarding in the cervical spine with dysmetria but no radiculopathy, restricted movement in the left shoulder with marked tenderness over the acromioclavicular joint, and strongly positive impingement signs. Dr Oates gives a diagnosis of left shoulder rotator cuff tear which has been repaired and soft tissue musculo-ligamentus strain to the cervical and upper thoracic spines on the left side. Dr Oates assesses 5% whole person impairment for the cervico thoracic spine based upon guarding and dysmetria. He assesses 8% whole person impairment for the left shoulder. That results in 13% combined whole person impairment.
(d) There are five medico-legal reports by Dr Paul Robinson, orthopaedic surgeon. Those reports are as follows:
(i)dated 30 August 2016 to Suncorp;
(ii)dated 29 September 2016 to Suncorp;
(iii)dated 19 April 2018 to GIO;
(iv)impairment assessment dated 19 April 2018 to GIO;
(v)dated 8 May 2018 to GIO, and
(vi)dated 25 May 2020 to the insurer’s lawyers.
In his most recent report, Dr Robinson opined that the claimant continues to complain of problems which he relates to the motor accident. He has had 3 operative procedures which he said have not improved the symptoms and have not improved the range of movement. The ongoing problems which he has do seem to be excessive for the pathology involved. He does have a past history of symptoms and problems in the shoulder confirmed on reviewing the general practitioner notes. Any pathology or symptoms relating to the claimant’s cervical and lumbar spine are due to pre-existing conditions. This is documented in his general practitioner notes. He has a degree of permanent impairment of his shoulder but has problems with movements not being consistent. The diagnosis is chronic pain in his left shoulder with a decreased range of movement and excess of symptoms.
Dr Robinson noted that there was a significant history of injuries extending back to the claimant’s childhood. He injured his right shoulder in 2000 at work. He injured his left shoulder in March 2013 which caused classification. Cervical pathology was present in investigations performed on 26 March 2014 following a surfing injury. A further surfing injury was sustained in October 2014 to the right shoulder. The claimant sustained a fracture of his right femur in November 2014 requiring internal fixation. There was a further episode of left shoulder pain in November 2014. Examination of his right shoulder revealed a 90% range of normal movement.
Dr Robinson assessed 9% whole person impairment for the left shoulder, after deducting 10% for pre-existing condition, and 1% whole person impairment for scarring. Dr Robinson assessed 10% combined whole person impairment.(e) Vocational assessment dated 10 July 2020 by Dr Jeffrey Baron-Levi, neuropsychologist, prepared for the insurer’s lawyers. That report is not relevant to matters before the Review Panel for determination.
(f) Report dated 8 March 2021 by Dr Mathew Jones, general and forensic psychiatrist, to the insurer’s lawyers. That report is not relevant to any matter before the Review Panel for determination.
(g) Letter dated 24 April 2014 by Dr Tim Grice to Dr Cameron Williams relating to his treatment of severe right upper limb pain. Dr Grice had the impression of right dominant upper limb pain secondary to a probable ulnar nerve injury and possible right C8 neuropathy not seen on MRI scan. Dr Grice could find no radicular signs or symptoms, although these are present on the MRI, and he believes it is a major component of the claimant’s presentation. Dr Grice opined that the claimant’s shoulder problem is probably secondary to a muscle dysfunction which may be improved with physiotherapy. The referral from
Dr Williams to Dr Grice was for treatment of severe right sided C7/C8 root irritation.(h) Clinical records of various hospitals and medical practices.
The Review Panel notes the Certificate and Reasons of Medical Assessor Michael Hong concerning psychiatric condition. They are not relevant to the Review Panel’s deliberations.
RE-EXAMINATION
Medical Assessors’ Couch and Rosenthal report as follows:
“Mr Jankowski attended for re-examination by Assessor Thomas Rosenthal and Assessor Michael Couch on 29 January 2024 at the PIC rooms.
Mr Jankowski attended accompanied by his brother, Adam.
HISTORY
Mr Jankowski repeated the history that had previously been provided to Assessor Neil Berry in his certificate of 8 June 2023.
The accident occurred on 29 December 2015. He was riding a motorbike travelling to Sydney from Murwillumbah. He was coming into Tyndale on the Pacific Highway when he reduced his speed down to 80 kph and was hit from behind by a truck. The impact forced him to the other side of the road. His upper body was struck by the front of the truck. He managed, however, to stay upright on the bike and ended up in a ditch on the other side of the road. The truck driver stopped to give him assistance and he decided not to call police or ambulance. He continued on his journey to visit his sister in Sydney but by the time he got to Newcastle he had to stop.
He immediately noticed head and upper back pain and subsequently shoulder pain as well.
Mr Jankowski attended John Hunter Hospital where he had investigations for head and neck injuries. He then returned to Murwillumbah and was treated by his GP, Dr Cameron Williams. Dr Williams treated him for left shoulder pain. Investigations revealed a full thickness tear of his supraspinatus.
Details of his other injuries were sketchy as the accident occurred eight years ago. He recalls having neck and upper back pain.
A medical certificate provided by Dr Williams on 11 March 2016 noted severe left shoulder pain, full thickness tear of supraspinatus insertion. The pictogram associated with the certificate noted symptoms in his neck and upper back extending to both his shoulders.
His Personal injury claim form submitted around that time noted ‘concussion, injury to shoulders, left and right, injury to middle back and injury to the neck’.
His left shoulder required treatment by Dr Agolley, an orthopaedic surgeon in Tugan, who ended up performing two surgical procedures on his shoulder and a third shoulder operation was performed by Dr Michael Graze.
He reported ongoing spinal pain which was initially thought to emanate from his neck and upper back. He believes the lower back pain may have started after the surgical procedures on his shoulder. He was adamant that he did have spinal pain, mainly neck and upper back, following the accident.
He essentially now has been treated for chronic pain and has been unable to work since the accident. His brother is his carer. He is not on a DSP but continues to be on Jobseeker.
He could not recall having investigations on his lower back but a report of a CT of the lumbar spine dated 18 August 2022 was presented.
He noted that there were pre-existing injuries particularly in regards to his neck and shoulders. There was a surfboard incident in 2013, noting he required some treatment to his left shoulder. There was a right C8 radiculopathy diagnosed in 2014 following another surfboard accident. He fractured his right femur in November 2014 and continued having physiotherapy treatment in regards to this injury at the time of the motorbike accident in 2015.
CURRENT SYMPTOMS
He continues to have back pain which comes and goes, worse with activity. He has left shoulder pain and stiffness. He has neck pain.
He is taking various medications including Oxycodone, Diazepam, Pantoprazole, THC (medical marijuana) and Palexia.
He continues to drink 12-15 mid strength beers per day.PHYSICAL EXAMINATION
On examination, Mr Jankowski walked with a normal gait and posture.
He weighed 82kg. He was 168cm tall.
Various scars including a 7cm pale scar over his left shoulder were noted with some portal scars. There were no suture marks, no adherence. He was conscious of the scars. No scar treatment was occurring.
Examination of his neck revealed a normal cervical lordosis but he was slightly tender over the left C5/6 facet joint. There was restricted neck movement in a symmetrical pattern. Rotation was restricted by one-quarter, lateral flexion to left and right were reduced by half. Flexion and extension of the neck were also reduced to half normal. There was no asymmetry of neck movement. There was no spasm or guarding.
Neurological examination of his upper limbs was normal. Muscle power, tone and reflexes were normal and there were no sensory changes.
Upper arm measurements were 35cm on both sides, 10cm above the olecranon. Forearm measurements were 30cm on the right and 29cm on the left, 10cm below the olecranon.
At the thoracic spine, there was some paraspinal tenderness but no spasm or guarding. There was restriction of thoracic movements at the extremes, up to one-quarter loss in a symmetrical pattern. There was no evidence of any radiculopathy in relation to the thoracic spine.
At the lumbar spine, there was reduced lumbar lordosis, tenderness in the lumbar paraspinal muscles. Asymmetry of lumbar spine movements was present. Lumbar extension was reduced by three-quarters and flexion was reduced by one-third. There was some left-sided guarding. He could get up and walk on his heels and toes but could only manage to do a half squat.
Straight leg raise was 70° on the right, 50° on the left. His Lasegue’s signs were negative.
Muscle power, tone and reflexes were normal.
Thigh measurements were 49cm on the right and 48cm on the left, 10cm above the superior patellar pole. Calf measurements were 40cm on the right and 39cm on the left, 10cm below the inferior patellar pole.
There was a full range of hip, knee and ankle movements.
Shoulder movements were measured with a goniometer. The left shoulder was inconsistent and variation in abduction and flexion was particularly noted in the left shoulder on repeated testing. Range of motion is recorded in the table below:
| Shoulder Movement | Right | Left |
| Flexion | 170° | 60-80° |
| Extension | 70° | 20° |
| Abduction | 180° | 50-70° |
| Adduction | 40° | 20° |
| External rotation | 80° | 30-40° |
| Internal rotation | 70° | 60° |
The inconsistencies in his left shoulder movements were brought to his attention, particularly noting a deterioration in shoulder movement from the previous assessment and certificate of Assessor Berry. Mr Jankowski had no explanation for the variability in shoulder movement.
There was some crepitus and clicking noted within the left shoulder joint but no instability and there was tenderness over the glenohumeral joint.
INVESTIGATIONS
It was noted that there was an MRI of the cervical spine from 26 March 2014 and another MRI of the cervical spine which was taken post-accident on 23 May 2016. Both MRIs showed multilevel degenerative changes.
Numerous investigations were noted in regards to the left shoulder.
An ultrasound of the left shoulder on 7 January 2016 showed an insertional tear of the supraspinatus.
An MRI of the left shoulder on 11 October 2020 reported ‘a full thickness tear of the supraspinatus tendon in its anterior to mid substance fibres and background tendinopathy/post-surgical change involving infraspinatus and subscapularis. Mild degree of supraspinatus atrophy. Mild reactive subacromial bursal effusion. Mild to moderate glenohumeral chondromalacia’.
A CT scan of the lumbar spine dated 16 August 2022 concluded: ‘Posterior disc bulge at L4/5 causing very minor spinal canal stenosis. The traversing left L5 nerve root appears to contact the disc.’
REVIEW OF DOCUMENTATION PROVIDED FOR THE APPEAL
There was a physiotherapy report from Clare Miller of Murwillumbah Community Health dated 10 October 2016. Mr Jankowski was continuing to have treatment for his fractured femur. She noted he had started going on triathlons with his son including 3km bike rides and 1.5km runs. She noted, ‘Shoulder has been really sore. Fell on it playing football in backyard with kids several weeks ago. Also hurts when doing pushups and when holding boxing pads above head for children to punch.’ She noted, ‘Good hip range of motion with flexion to 100° and nil groin pain’. She also noted ongoing issues with the left shoulder. There were no reported issues with his lumbar spine in this report. She also noted that he had been ‘working on repairing a motor yesterday. Took 3 hours and had to take several Endone after and then again at 3 and woke up. Drove kids to Byron last week, 40 minute drive. Back was very sore. Hamstrings have been like a restless leg.’
DISCUSSION
The left shoulder is slightly inconsistent in its movements in respect to the previous assessment. The best way of determining impairment needs to be considered. Use of range of motion to assess whole person impairment of the left shoulder may not be appropriate.
The lumbar spine assessment resulted in evidence of asymmetry which is DRE II but in the Panel’s view there is no evidence of a causal connection between the lumbar spine injury and the motor vehicle accident, particularly based on the available documentation. The Review Panel notes Dr Oates’ 3 reports and Dr Robinson’s reports neither of which found a lumbar injury caused by the accident.
Lumbar injury not recorded in the PICF or certificate of Dr Williams, GP.
The thoracic spine had a pre-existing condition which was actually noted in his personal injury claim form. The thoracic spine is DRE I, 0% whole person impairment.
The cervical spine also had a pre-existing condition which has been noted in the documents. In any case, the cervical spine is DRE I, 0% whole person impairment.
There is no measurable impairment of the right shoulder which appears to have fully recovered. The minor reduction in flexion of the right shoulder would not be considered pathological and warrant an impairment.
The left shoulder impairment is determined by analogy because of inconsistency in movements. Using Table 18, there was moderate crepitation present. The glenohumeral joint is impacted (Table 18). He receives 12% UEI which converts to 7% WPI.
The scarring over the left shoulder under the TEMSKI table, would warrant 1% whole person impairment.”
The Review Panel re-convened on 1 May 2024 to discuss the re-examination report and to decide its findings and conclusions.
FINDINGS
The Review Panel has conducted a new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 63(3A) of the MAC Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment which are different to those provided by other medical specialists. The medical assessment of permanent impairment is undertaken at the time of examination. In that respect, previous assessments are outdated, and do not reflect current symptomatology.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel notes that the claimant was quite physically active following the motor accident. He confirmed the details contained in the physiotherapy report from Clare Miller of Murwillumbah Community Health dated 10 October 2016, which is referenced in the re-examination report.
The Review Panel finds that the claimant has 0% whole person impairment in the cervical and thoracic spines as a result of the accident. The Review Panel finds that the claimant has assessable whole person impairment in the left shoulder, and as a result of scarring, arising from the motor accident.
The Review Panel is not satisfied that the motor accident caused injury to the claimant’s lumbar spine, as a matter of medical determination, and as a matter of factual non-medical determination.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Berry on 8 June 2023 should be revoked. The new certificate appears at the commencement of these reasons.
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