Warke v Allianz Australia Insurance Limited
[2023] NSWPICMP 666
•8 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Warke v Allianz Australia Insurance Limited [2023] NSWPICMP 666 |
| CLAIMANT: | Mark Raymond Warke |
| INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Geoff Stubbs |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 8 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was injured when his motorcycle collided with a car turning in front of him; He received injuries to his shoulders, chest, face and throat; sometime after the accident he also claimed for treatment and care for a bilateral open carpal tunnel release surgery; on review, the Panel found a total whole person impairment of 13% for both shoulders; as a result of the accident the claimant suffered a full thickness rotator cuff tear in the left shoulder; MRI scans of the left shoulder showed the presence of an acute and chronic rotator cuff tear with a pre-existing retracted tear; regarding the right shoulder the right rotator cuff tear was asymptomatic prior to the motor vehicle accident but then became symptomatic a few weeks after the accident partly due to being aggravated by single arm use during the period of incapacity of the left shoulder; the Panel also found that the bilateral open carpal tunnel release surgery did not relate to the injury caused by the motor accident and was not reasonable and necessary; the soft tissue injury to his brachial plexus had resolved; Held – original medical certificate set aside regarding permanent impairment; original medical certificate affirmed regarding carpal tunnel surgery. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 21 February 2023 regarding permanent impairment. 1. The following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%: · cervical spine- soft tissue injury now resolved, and · brachial plexus injury – not found. 2. The following injuries were caused by the motor accident and give rise to a permanent impairment which is greater than 10%: · left shoulder – acute rotator cuff tear, and · right shoulder – pre-existing rotator cuff tear aggravated by single arm use during the period of incapacity of the left shoulder. The Review Panel affirms the certificate of Medical Assessor Clive Kenna dated 21 February 2023 regarding treatment and care. 3. The following treatment and care of a: · bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott on 17 February 2021; does not relate to the injury caused by the motor accident. 4. The following treatment and care of a: · bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott on 17 February 2021; is not reasonable and necessary in the circumstances. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 22 February 2019 Mark Raymond Warke (the claimant) was riding his motorbike on St Johns Road Bradbury when a car pulled out in front of him resulting him hitting the front and back passenger doors. Prior to the motor accident Mr Warke worked as a truck driver for over 20 years.
In his personal injury claim form Mr Warke says that as a result of the accident he sustained injuries to his left shoulder and spent three days in hospital.[1]
[1] Claimant’s Bundle p 61.
Mr Warke has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Warke under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Warke as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
The dispute as to permanent impairment and assessment of treatment and care was referred to Medical Assessor Clive Kenna. He assessed Mr Warke on 14 February 2023 and issued a certificate dated 21 February 2023.
Medical Assessor Kenna assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. He also found that the bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott on 17 February 2021 did not relate to the injury caused by the motor accident and was not reasonable and necessary.
Mr Warke has sought a review of the certificate of Medical Assessor Kenna.
REVIEW PROCEDURE
[2] Section 7.20 of the MAI Act.
An application for review of the medical assessment of Medical Assessor Kenna was lodged within 28 days of the date on which the certificate of was made available to the parties.
On 9 May 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
The grounds for review advanced by the claimant included that the Medical Assessor’s failed to consider relevant evidence relied upon by the claimant when determining that the claimant’s carpal tunnel syndrome was not caused by the accident.
The claimant also lodged an Application to Admit Late Documents form dated 18 April 2023 with additional submissions attached. Those submissions were admitted into evidence by way of a decision of a delegate of the President dated 20 April 2023 and were considered.
The claimant also lodged a further Application to Admit Late Documents Form dated 27 September 2023 without additional submissions attached. Those late documents consisted of approximately 465 pages of clinical notes from Dr Khoo. The insurer’s consent was sought to the admission of these late documents. Having considered the Application to Admit Late Documents and the insurer’s response the Panel considers that it is in the interests of justice to admit the clinical records of Dr Khoo.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3. '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:
4.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
6. This, therefore, involves a medical decision and a non-medical informed judgement.
7. 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.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[3] [2021] NSWSC 548, Norrington.
Brereton J. referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[4] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
8.“busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
[4] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[5] where the Court stated at [64]:
9.“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.”
[5] [2016] NSWCA 229, McGiffen.
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
ASSESSMENT UNDER REVIEW
[6] [2021] NSWSC 804, Kinchela.
The dispute was referred to Medical Assessor Kenna who assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. He also found that the bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott on 17 February 2021 did not relate to the injury caused by the motor accident and was not reasonable and necessary.[7]
[7] Claimant’s Bundle pp 3-18.
The injuries referred for assessment were described as follows:
· left shoulder,
· right shoulder,
· hand
· wrist
· cervical spine; and
· brachial plexus.
Medical Assessor Kenna found that the accident caused a full rotator cuff tear to the left shoulder which resulted in surgery. He found that the right shoulder had improved over time and it was considered non-causal in the motor accident. He also found bilateral carpal tunnel was non-causal from the motor accident. The claimant has undergone surgery and responded well in both wrists. Medical Assessor Kenna considered the bilateral carpal tunnel to be non- causal in view of the significant time delay.
Medical Assessor Kenna found that the following injuries were caused by the motor accident: left shoulder and cervical spine both soft tissue injury. He also found that the following injuries were not caused by the motor accident: right shoulder soft tissue injury and bilateral carpal tunnel syndrome and wrist bilateral carpal tunnel syndrome. Medical Assessor Kenna also found that the crush injury to the brachial plexus had resolved.
Medical Assessor Kenna found that in regard to his cervical spinal condition, Mr Warke has suffered a whole person impairment of 0% corresponding to DRE Cervico -Thoracic Category I, page 103 AMA 4 Guides. In regard to the claimant’s left shoulder condition, he has suffered a left upper limb impairment of 0% as a result of loss of range of movement at the joint according to Figures 38, 41 & 44 pages 43-45 AMA 4 Guides.
Regarding the right shoulder Medical Assessor Kenna found it to be non-causal. He also found no specific listing of trauma and very delayed onset which in his opinion excluded secondary use. Similarly pertaining to bilateral carpal tunnel (wrist and hand), very much delayed use which would indicate there is no causal relationship to the motor vehicle accident. Although it is listed as eight to nine months, there is some documentation to indicate that there was no onset for over 12 months.
Medical Assessor Kenna also that the bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott on 17 February 2021 did not relate to the injury caused by the motor accident and was not reasonable and necessary.
Medical Assessor Kenna assessed the claimant with a 0% of permanent impairment caused by the motor accident.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties on 11 August 2023 requiring each party to file an indexed, paginated bundle of documents. In response to these Direction the solicitors for the claimant and insurer both uploaded to the portal an index and a bundle of documents.
The solicitor for the claimant also made an application to admit late documents dated 27 September 2023 which were medical records of Dr Khoo which were admitted and considered by the Panel. In response to this application the insurer wrote to the Commission on 10 November 2023 stating: “The insurer consents to the inclusion of the records of Dr Khoo (as contained in the AALD), with the exception of the report of Dr Rastogi dated 11 December 2020, noting it is not relevant to the issues to be determined by the review panel.”
After the Panel had completed its re-examination of the claimant and commenced writing its reasons the insurer made an application to admit a late updated medical report from Dr Hyde Page is dated 9 November 2023. In an email addressed to the insurer’s solicitors the claimant’s solicitors wrote that they consented to this report being provided to the Panel.
Having considered the: Applications to Admit Late Documents; the parties indicating they consented to the Panel considering the late documentation; and the Personal Injury Commission Rules 2021 rule 67 and Procedural Direction PIC3 - Documents and late documents; the Panel admits the late documents in the interests of justice.
The claimant and insurer have filed with the Commission over 1,000 pages of hospital notes, clinical doctors notes, rehabilitation notes and medicolegal reports. The Panel has carefully reviewed and taken these notes and medical records into account but has not attempted to summarise or detail all of the medical records in these reasons. As many of these records relate to medical conditions that are not relevant to the issues before this Medical Review Panel the Panel have not summarised those records in these reasons.
The Panel also notes the insurer’s submissions that in Roger v De Gelder [2015] NSWCA 211, the Court of Appeal determined that the statutory obligation of a medical assessor is to review the evidentiary material placed before him/her in order to determine whether the degree of permanent impairment to the injured person caused by the motor accident is greater than 10%. The statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the Medical Assessor.
Pre-accident treatment medical evidence
The pre-accident medical evidence shows that Mr Warke reported no previous reported history of injury. The claimant told a number of doctors, including Dr Hyde Page, that he had good general health and had a successful right total knee replacement in 2015.
Post-accident treating medical evidence
The claimant was taken by ambulance to Liverpool Hospital shortly after the accident. The hospital notes show that he stayed in hospital for three days. The main findings were reduced range of movement in the left shoulder. A CT scan and an X-ray of the left shoulder both showed no acute fractures of the left shoulder.[8] The left shoulder was enlocated. Mild loss of acromioclavicular joint space with adjacent osteoarthritic changes suggestive of chronic rotator cuff arthropathy was found.
[8] Claimant’s Bundle pp 177-179.
A number of an allied health request dated from at least April 2019 from Mr Daniel Chiovitti summarised the claimant’s current signs and symptoms including noting that right shoulder pain increasing over the last few weeks and then noting a right rotator cuff tear.[9]
[9] Claimant’s Bundle pp 190-256.
In in an allied health request dated 19 September 2019 Mr Daniel Chiovitti summarised the claimant’s current signs and symptoms as follows:
“An Left shoulder now post op rotator cuff repair (large repair - double row)
Left thumb pain intermittent P 0-2/10 with thumb ext, abd and add manual muscle testing.
Shoulder ROM: F: (L) ROM 110 deg P 0-5/10, (R) 170 deg P1-2/10 less clunking in shoulder.
Abd: (L) 90 deg, (R) 160 deg P 0-2/10 in shoulder.
HBB (L) LI P 0-2/10, (R) T10 no pain.
The left thumb pain is 0-2/10. The right thumb is now pain free.
MRI of right shoulder: full thickness and full width tear of the supraspinatus with tendon retraction.
Partial tear to the infraspinatus
Partial tear to the subscapularis
Injury to the long head of biceps biceps pulley.Subacromial bursitis.” [10]
[10] Claimant’s Bundle pp 140 - 143.
In a report dated 17 February 2021 Dr Chris Scott wrote to the insurer that he reviewed Mark in his rooms today. Dr Scott wrote that the claimant was referred by his general practitioner (GP) with bilateral carpal tunnel syndrome which has only come on after his motor vehicle accident in 2019. Dr Scott discussed further treatment with him today and have recommended proceeding with a bilateral open carpal tunnel release. The claimant is keen to go ahead with surgery and Dr Scott sought approval to proceed at Sydney Southwest Private Hospital.[11]
[11] Claimant’s Bundle pp 284
On 17 February 2021 Dr Scott wrote to the insurer that he did not attribute the carpal tunnel syndrome to the motor accident.[12]
[12] Insurer’s Bundle p31 and 42
On 26 June 2019 Dr Chandra Dave performed on the claimant's left shoulder an arthroscopic double row repair. The operation report showed that the claimant had a large tear involving supra and infraspinatus and biceps rupture.[13]
[13] Claimant’s Bundle pp 320-347
In a report dated 12 September 2019 Dr Chandra Dave reported on the claimant's left shoulder arthroscopic double row repair. On examination the claimant showed he has virtually full range in forward flexion but does have some pain in external rotation and in extension some restriction.
Medico-legal evidence
Dr T Mastroianni, consultant occupational physician
Dr Mastroianni examined the claimant on a number of occasions and wrote a number of reports dated: 13 May 2020, 1 June and 7 August 2023.
In the report dated 7 August 2023, Dr Mastroianni reviewed the MRI report of the left shoulder dated 28 February 2019. He noted extensive tears and the intramuscular haematoma are consistent with an acute injury. The injuries to the shoulder are also consistent with the mechanism of the injury. In his opinion the motor vehicle accident caused the rotator cuff injury.
In the report dated 1 June 2023, Dr Mastroianni’s opinion was that as a result of the motor vehicle accident Mr Warke sustained injuries to the left shoulder and a consequential injury to the right shoulder. He had left rotator cuff repair. On the day of the examination he had neck pain after the accident but he can’t recall when he first had symptoms. He has had bilateral carpal tunnel release and clinically he has made a full recovery. He previously did not mention his hand problems.
Dr Mastroianni’s clinical diagnosis is: left rotator cuff repair; right shoulder rotator cuff disease, ACJ arthritis and tendonitis (consequential injury); a soft tissue injury to the neck in the subject motor vehicle accident from which he has recovered and bilateral carpal tunnel release and symptoms have resolved.
In a reported dated 13 May 2020 Dr Mastroianni’s clinical diagnosis is that as a result of the motor vehicle accident and consistent with the accident Mr Warke sustained injury to the left shoulder. He subsequently developed pain in the right shoulder as the left shoulder was immobilised in a sling and as he favoured the left shoulder after the accident and subsequently after surgery to the left shoulder, the right shoulder progressively got worse despite treatment (physiotherapy, cortisone injections and exercise program). Dr Mastroianni’s diagnosis is: left rotator cuff disruption for which he had surgery and right shoulder rotator cuff disease, AC arthritis and tendonitis aggravated whilst favouring the left arm (consequential injury).
In an impairment report also dated 13 May 2020 Dr Mastroianni’s conclusion as to the degree of whole person impairment was that Mr Warke has 8% right upper extremity impairment and 7% left upper extremity impairment (AMA 4 Guides, pages 43-45, figure 38-44).[14] This equates to 5% and 4% whole person impairment respectively. As a result of the subject motor vehicle accident Mr Warke has 9% whole person impairment. Dr Mastroianni notes that in the letter of instruction, the solicitors state there is also a suggestion of C5 nerve root involvement. Dr Mastroianni reports that he found no abnormal neurology on examination.
Dr Johnathan Herald
[14] Claimant’s Bundle pp 35-36.
There are several medical reports from Dr Herald dated: 26 October 2020, 16 October, 7 November 2021 and 19 April 2023.
In the report dated 26 October 2020 Dr Herald writes that his assessment is that the claimant has: bilateral large rotator cuff tears with left repaired and right not repaired; bilateral carpal tunnel syndrome; whiplash type injury to cervical spine.
In an impairment report also dated 26 October 2020 Dr Herald’s conclusion as to the degree of whole person impairment was that Mr Warke has 5% whole person impairment for each shoulder and 4% for each hand . Dr Herald then concludes by using the Combined Values Chart 5% combined with 5% equals 10%, 10% combined with 4% equals 14% and 14% combined with 4% equals 17% whole person impairment. Thus overall for his injuries the claimant scores 17% whole person impairment.
In the report dated 16 October 2021 Dr Herald responds to questions from the solicitors about carpal tunnel syndrome. He is asked whether carpal tunnel syndrome can be caused by high impact trauma to the wrists. Dr Herald responds by stating that trauma is a cause of carpal tunnel syndrome as is repetitive impact such as using vibrational equipment.
In the report dated 7 November 2021 Dr Herald responds to questions from the solicitors and states that in response to the previous questions which discussed whether carpal tunnel syndrome could occur as a result of a high impact or constitutionally Dr Herald did make mention in response to a question from his previous report dated 16 October 2021 that carpal tunnel can occur as a result of a trauma. In Dr Scott's report he discusses the onset of the carpal tunnel syndrome and relates it to a motorcycle accident occurring in February 2019.
In the report dated 19 April 2023 Dr Herald notes that the claimant was thoroughly investigated at Liverpool Hospital immediately after his accident with X-rays and CT scans of his neck, chest and abdomen and found to have no fractures. He did however have ongoing pain of his left shoulder and reduced range of motion of his left shoulder even after discharge. After about two weeks he also started developing right shoulder pain, he is uncertain if that pain was present from the very beginning or gradually became increasing in severity. His hands continued to have pain and swelling as well as numbness and tingling.
In the report dated 19 April 2023 Dr Herald’s assessment is that the claimant has: bilateral large rotator cuff tears with left repaired and right not repaired; bilateral carpal tunnel syndrome; whiplash type injury to cervical spine; and query radiculopathic symptoms bilaterally.[15]
Dr Murray Hyde Page , orthopaedic surgeon
[15] Claimant’s Bundle pp 38-39.
There are two reports from Dr Hyde Page dated 8 March 2021 and 9 November 2023.[16]
[16] Insurer’s Bundle pp 11-20 and late report filed 22 November 2023.
In the first report, the claimant told Dr Hyde Page that his left shoulder had settled down quite well and regained good movement. His right shoulder has significant ongoing weakness, stiffness and pain. He has night-time pins and needles and numbness in his hands from carpal tunnel syndrome. The claimant also told Dr Hyde Page that he had good general health and did have a successful right total knee replacement in 2015.
Dr Hyde Page examined the claimant's shoulders and found very good overhead movement in both shoulders but with significant restriction with internal rotation. He had normal strength in his shoulders and no muscle wasting.
His cervical spine was normal on examination with a full range of movement in all directions.
Dr Hyde Page wrote that as a consequence of the motor vehicle accident the claimant suffered injuries to both his shoulders and a soft tissue injury around the top of his sternum and oesophagus. An MRI scan of his left shoulder in February 2019 showed a full thickness rotator cuff tear which was repaired in July 2019. The claimant developed symptoms in his right shoulder and had an MRI scan in June 2019 which had a full thickness rotator cuff tear but he’s had no surgery on his right shoulder. The claimant developed carpal tunnel syndrome some eight or nine months after the motor accident appears to be unrelated to the motor accident and the treatment that is shoulders. Dr Hyde Page does not consider the claimant’s bilateral carpal tunnel can be directly or indirectly related to the motor vehicle accident. Regarding the soft tissue injury to the neck and upper sternum this is settled down uneventfully and the claimant does not appear to have suffered any significant injury to the cervical spine.
Dr Hyde Page’s WPI assessment of the claimant is 2% for each shoulder which gives a total whole person impairment of 4%.
In the second report dated 9 November 2023, the claimant told Dr Hyde Page that his shoulders have improved since Dr Hyde Page saw him last and he was able to get back to work a year ago, working as a semitrailer driver carting cement powder to cement mixing plants. He also told Dr Hyde Page that he is presently looking for similar work as a truck driver.
On examination of his cervical spine, the claimant had a full range of movement in all directions with no muscle guarding or dysmetria and he had no radicular symptoms. There was no evidence of radiculopathy in his upper limbs and he had good grip strength. On examination of his thoracolumbar spine, he had no pain or tenderness and a full range of movement in all directions. He had no symptoms down his legs.
On examining his shoulders, the claimant had the following ranges of movement:
Left shoulder right shoulder
forward flexion 180° 180°
extension 50° 50°
abduction 180° 180°
adduction 40° 40°
external rotation 80° 80°
internal rotation 60° 50°.Dr Hyde Page found no evidence of any rotator cuff tendonitis or impingement. The claimant showed no muscle wasting or weakness. Overall the examination was similar to what Dr Hyde Page found previously but the claimant still had some restriction of internal rotation of both shoulders.
Dr Hyde Page’s opinion and prognosis was that the claimant had shown further improvement in his shoulders and he still gets pain across the front and back of his shoulders and he finds it uncomfortable using his arms above chest level and certainly overhead. He has no symptoms related to his cervical, thoracic, and lumbar spine. His upper limbs are otherwise normal.
Overall Dr Hyde Page’s concluded that the claimant’s prognosis is good. He has shown further improvement since I last saw him two and half years ago and he has been able to maintain nearly a full range of movement in his shoulders with normal function and movement. He will show some further slow improvement over the next year or two. At the end of the day, he will find it uncomfortable to constantly use his shoulders and arms above chest level and do constant activities such as driving trucks.
Dr Sam Perla
In a medical report dated 7 April 2021 Dr Sam Perla wrote that Mr Warke told him that at the time of the accident, he stated he was aware of pain involving his chest and left shoulder with glass abrasions over his face. He stated he began to experience right shoulder pain, he thought within one to two weeks.
In June 2020 he had a left shoulder arthroscopic rotator cuff repair. After his surgery Mr Warke reported reasonable improvement involving his left shoulder but he still had some mild discomfort and pain on full range of movement. He reported ongoing chronic pain involving the right shoulder, with the inability to sleep on that side and likewise pain on movement of the shoulder.
After the surgery the claimant had become aware of numbness and tingling involving both hands. He was referred for nerve conduction studies and was told he had bilateral carpal tunnel syndrome.
On examination of the right shoulder Dr Perla found that the claimant experienced pain and tenderness but that the range of motion was essentially normal. For the left shoulder Dr Perla found a full range of motion. For the neck he found a full range of motion with no neurological compromise. For the right shoulder he found a decreased level of power compared to the left shoulder.
X-ray, CT Scan and MRI evidence
There is an MRI of the left shoulder on 28 February 2019 reported on by Dr Cuganesan.[17] This shows a full thickness tears of the supraspinatus tendon extending to involve the anterior insertional fibres of the infraspinatus as well as subscapularis and long head of biceps tendon. Intramuscular haematoma at the level of the subscapularis. Musculotendinous junction, undisplaced tear of the anterior labrum. Moderate osteoarthritic changes in the acromioclavicular joint and subacromial spur formation.
[17] Claimant’s Bundle pp 384-385 and 152.
There is an MRI of the right shoulder on 22 May 2019 reported on by Dr Leong. This shows a rotator cuff tear tendonitis and acromioclavicular junction degenerative changes.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors made detailed submissions dated 5 April 2023.[18] They submit that Medical Assessor Kenna failed to consider contemporaneous complaints of carpal tunnel syndrome claimant. The submissions state that Medical Assessor Kenna overlooked evidence of carpal tunnel syndrome including complaints in both the claimant’s hands which arose shortly after the motor vehicle accident. The claimant’s submissions refer to a number of references in the medical records from March 2019 through to June 2019. The submissions note that Medical Assessor Kenna did not refer to this evidence of contemporaneous complaint by the claimant of pain and numbness in his hands.
Insurer’s submissions
[18] Claimant’s Bundle pp 1-2.
The insurer’s solicitor provided two written submissions dated 4 February 2022 and 4 April 2023.[19]
[19] Insurer’s Bundle pp 7-10 and 2-6.
In the submissions dated 4 April 2023 the insurer submits that the Medical Assessor gave adequate reasons and took into account all the relevant documentation provided, as well as the clinical examination conducted in reaching the determination.
The insurer submits that the Medical Assessor Kenna concluded that most of the treating evidence determined the delayed onset of the claimant’s carpal tunnel injury was unrelated to the subject accident.
Regarding the right shoulder Medical Assessor Kenna noted the right shoulder injury was not reported at the time of the accident. The MRI of the right shoulder conducted on 22 May 2019 indicated rotator cuff tendonitis and acromioclavicular junction degenerative changes unrelated to the accident. The claimant’s treating physiotherapist, Daniel Chiovitti reported in November 2020 that there was substantial improvement in the range of motion in both shoulders. Dr Hyde Page found that the claimant had regained full range of motion by March 2021.
Medical Assessor Kenna reasoned that due to the claimant’s initial failure to report an injury to the right shoulder, the degenerative changes found within the MRI together with an old rotator cuff injury unrelated to the subject accident, that the right shoulder injury was not causally related.
As submitted by the insurer, the documentation considered by Medical Assessor Kenna demonstrate that any injury the claimant may have sustained to his right shoulder was not causally related to the subject accident and had resolved.
In the submissions dated 4 February 2022 the insurer submits that when taking a history of the claimant’s symptoms, Dr Hyde Page recorded that the claimant started developing pins and needles and numbness in the hands towards the end of 2019, eight to nine months after the accident.[20] Dr Hyde Page then explicitly opined that the onset of the carpal tunnel syndrome does not appear to relate directly or indirectly to the subject accident, or the treatment the claimant has had for his shoulders. The insurer contends that the report of Dr Mastroianni further supports the absence of any causal relationship between the subject accident and the claimant’s carpal tunnel injuries. Not only did the claimant explicitly state that he had no other problems than his shoulder symptoms, Dr Mastroianni did not diagnose carpal tunnel injuries.
[20] Insurer’s bundle pp 8-9.
The insurer then submits that with respect to the claimant’s alleged bilateral shoulder injuries, the insurer accepts causation in accordance with Dr Hyde Page’s opinion. Nonetheless the insurer urges the Medical Assessor to consider the improved range of movement in both shoulders between Dr Herald’s assessment and that of Dr Hyde Page’s such that, as at the date of the most recent assessment conducted by Dr Hyde Page, the claimant’s reduced range of motion gave rise to a 2% whole person impairment for each shoulder, on the basis of reduced internal rotation. Otherwise, the claimant “maintained very good overhead movement in both shoulders”, having made a reasonably good recovery from his arthroscopic rotator cuff repair. The insurer submits that it ultimately accepts 2% impairment attributable to each shoulder.
THE MEDICAL EXAMINATION
On 18 September 2023 Mr Warke attended for an interview and examination which was carried out by Medical Assessors Stubbs at the Commission’s rooms.
Mr Warke is 60 years old and married with one adult child living at home. He lives in a single story house and does not usually require assistance with the maintenance. He last worked five weeks ago. He was back driving trucks with rehabilitation program arranged by the insurer and working limited hours and days as part of his convalescence from the motor vehicle accident. He worked 34 hours a week but was still struggling with the sleep disturbance and using Lyrica on alternative days (when he was not driving). He drove a prime mover with a single tanker trailer to transport powdered cement for 14 months dismissed when his employer wished him to take up full-time hours. He did not feel he could do this. He returned for further physiotherapy.
Claimant’s past health
The claimant’s past health has been good. He previously worked as a delivery driver for Woolworths transferring goods from the warehouse to the stores. He was a regular member of the Police Citizens Youth Club at Campbelltown where he sparred to keep fit, he had a background of martial arts and in 2014 and had a right total knee replacement. Apart from blood pressure tablets he took no other medications and felt well. He thought the total knee replacement was a great success. This allowed him to resume activities without pain. He had a Harley-Davidson motorcycle and rode this regularly. He had ridden motorcycles of various makes for most of his life. If the weather was good, he would ride it to the depot as part of his daily transport to work. If the weather was indifferent, he drove his car.
Circumstances of the accident.
The accident occurred at 4:30 PM on 22 February 2019. He was riding his four-year-old Harley-Davidson that day. He was coasting downhill on a dual carriageway when a car made a right-hand turn into his path. He pitched forward striking his head against the rear passenger door glass. He was wearing an open face helmet and suffered lacerations from the glass together with an injury to his left shoulder. He was immediately attended by passing nurse and an off-duty policeman. The ambulance arrived and took him to Liverpool Hospital where he was admitted for suturing of facial lacerations and investigation of his painful left shoulder. He had chest and shoulder X-rays and spent three to four days in hospital before being discharged to a GP for follow-up. His left arm was in a sling but at that stage he did not have any right shoulder pain. The X-rays of chest and left shoulder were not noted to have fracture but there is a comment on the report of the left shoulder plain X-ray of some sclerosis of the greater tuberosity suggestive chronic rotator cuff injury.
Shoulders.
At about two weeks he complained to his general practitioner of right shoulder pain. A CT scan was performed and subsequently an MRI of the right shoulder. He was referred to Dr Chanda Dave who was a surgeon who had performed the right knee replacement five years previously. Rotator cuff lesions were diagnosed in both shoulders. Rotator cuff surgery on the left shoulder was performed at the Campbelltown private hospital about three months after the motor vehicle accident. Mr Warke has copies of the intraoperative arthroscopic imaging which confirms the presence of a recent full thickness left rotator cuff tear with some subacromial sclerosis suggestive of a pre-existing asymptomatic cuff pathology. The rest of the shoulder is in good condition. The rotator cuff tear has been repaired by advancement the greater tuberosity to arthroscopic anchors and sutures. Mr Warke spent the next three months in a sling undergoing physical therapy. Throughout this time his right shoulder became increasingly symptomatic. However, his general practitioner advised him to continue on with physical therapy.
Both shoulders become painful if he lies on them at night or waking from sleep. During daytime they cause only modest symptoms and he has excellent use of his arms up to about mid chest level. Above that he notices weakness, crepitus, and some increasing discomfort. However, they are fully functional to drive both car and truck. He had a long convalescence complicated by the development of bilateral carpal tunnel syndrome. The symptoms of this first became apparent about 18 months after the surgery. He has had arthroscopic carpal tunnel release in both wrists with a very good outcome. The diagnosis was confirmed by nerve conduction studies. Mr Warke funded the carpal tunnel surgery himself as the insurer denied liability. He eventually returned to the workforce three years after the motor vehicle accident on a graduated return to work program arranged by the insurer and worked for 14 months on restricted hours until a disagreement with his employer about increasing his hours and duties led to his dismissal. He has not returned to the gym to do sparring or martial arts.
Present symptoms
Apart from some occasional cramps, Mr Warke’s described his present symptoms as neither carpal tunnel causing any problems. The shoulders have a functional range of movement but he is limited in overhead use by weakness in both shoulders. His main problem is disturbed sleep as either shoulder will become painful if he lies on his side more than a few minutes. He is presently taking Lyrica for pain relief, as codeine caused considerable constipation.
Clinical examination
Mr Warke is 168cm tall presently weighs 87kg. Since he gave up regular physical activity at the gym, he has gained several kilograms weight but he still gives the appearance of an active man. He is very cooperative in the clinical examination and undertook all required tests without hesitation or complaint.
General examination – he has a normal walking gait and can tip toe and heel toe and squat to 120° of knee flexion. The total knee replacement is excellent. He shows a normal range of cervical and lumbar spine movements for a 60-year-old male. In relation to the cervical spine there was no asymmetry, muscle spasm or guarding. Upper and lower limb sensation was normal bilaterally. His upper and lower limbs reflexes are brisk and symmetrical and he has 5/5 power the arms/hands and legs/feet. There is normal sensation in the distribution of the median nerve on both sides, carpal tunnel compression is mildly uncomfortable and on the right side showed with a transitory release phenomena but is otherwise normal. There is tenderness over the median nerve of both elbows but Tinel’s sign is negative and sensation in the ulnar nerve distribution is normal. Elbows wrists and hands have normal movement as to the hips and ankles. Both knees flexed comfortably beyond 130° though that total knee replacement on the right shows marginally less range of flexion and extension. This would be expected to the nature of surgery.
Shoulders: range of motion is given in the following table:
Right left Flexion 160° – 1% UEI 160° – 1% Extension 40° – 1% 40° – 1% Abduction 125° – 3% 140° – 2% Adduction 35° – 1% 35° – 1% External rotation 50° – 1% 50° – 1% Internal rotation in abduction 35° – 4% 35° – 4% Internal rotation by spinal level L2 L2
When testing the range of motion the average of three goniometer movements were used. Testing found the presence of crepitus on abduction in both shoulders. The left side has a stepping on crushed gravel sensation which can be both felt and heard. The right has dull clicking in mid arc. Impingement signs are positive and there is some wasting of both the supraspinatous and to a lesser extent spine notice fossa. Adduction against resistance is painfully in mid arc and is only 4/5 power suggesting that the limitation of overhead use in both shoulders is from lack of stability the glenohumeral joint. Deltoid has excellent power on both sides.
Range of motion is rounded down for the purposes of determining upper extremity impairment.
There is 11% upper extremity impairment in the right shoulder (7% whole person impairment), there is 10% upper extremity impairment (6% whole person impairment) on the left shoulder combined 21% which in table 63 equates to a 13% whole person impairment. There was no assessable whole person impairment with respect to either shoulder prior to the subject accident, and therefore no deduction can be made.
Diagnosis balanced rotator cuff tears right and left. The right rotator cuff tear was asymptomatic prior to the motor vehicle accident and for a few weeks afterwards. Asymptomatic rotator cuff tears are common in the mid-50s with an incidence of about 25% and most of them are asymptomatic. There is a clear history of acute injury to the left shoulder, the plain X-ray report taken on assessment at the hospital suggest possible pre-existing rotator cuff problems. The arthroscopic surgery shows evidence of recent full tear. This is caused by the accident.
The right shoulder become symptomatic in the convalescent phase when his left arm was in a sling and remained symptomatic it is marginally the worst of the shoulders. Activities of daily living can be stressful if one has to rely on only one arm and led to otherwise balanced rotator cuff tears becoming symptomatic. The symptoms may persist. The right shoulder is therefore also causally related. Mr Warke can be taken as being at the point of maximum medical improvement for impairment assessment. However, the presence of crepitus and the mid arc weakness indicates that Mr Warke relies on some impingement between the humeral head and the acromion to perform active abduction and that the existing rotator cuff is not strong enough to fully stabilise either shoulder without this occurring. Mr Warke may possibly need further surgery at some indeterminate time in the future.
Previous MRI scans of the left shoulder show the presence of an acute onchronic rotator cuff tear with the pre-existing retracted tear of the supraspinatous with fatty atrophy (a long-standing change) of parts of the supraspinatous muscle. Also seen are the presence of a large bony spur involving the origin of the coracoacromial ligament in combination with moderate to severe pre-existing osteoarthritis of the acromioclavicular joint. Such findings are common in manual workers but providing the rotator cuff tear is small and confined to the superior portion of the rotator cuff (a balanced tear) leaving good strength in the anterior and posterior components function is often normal. Mr Warke’s tear shows anterior extension in the upper fibres of the sub- scapularis with some lateral subluxation of the long head of the biceps tendon. His tear has become unbalanced and weakness and pain result. Though there is no radiological imaging of the right shoulder prior to the motorcycle accident it is very probable the left and right shoulders were similar.
The clinical records of MacArthur Sports Focus document complaints of numbness in the hand on 26 March 2019. The site is not specified. In April 2019 symptoms of carpal tunnel are recorded in the left hand and later in June there is pain in both hands. However, the symptoms do not become sufficient to warrant investigation until September 2020, 18 months after the motor vehicle accident. A nerve conduction study performed by Dr Ho Chong on 1 September 2020 found severe right carpal tunnel syndrome present on the right, moderate to severe right carpal tunnel syndrome present on the left and moderate right-sided cubital tunnel (ulnar nerve compression at the elbow) and mild cubital tunnel syndrome on the left.
Carpal tunnel syndrome is also common after the age of 40. Whilst there are number of endocrine and other conditions, including repetitious use of vibrating tools in cold conditions, that contribute to the formation of carpal tunnel most cases are idiopathic, they have no apparent cause. Carpal tunnel is very occasionally seen after wrist fractures requiring treatment. The incidence is very low, less than 5% of all distal radial fractures are complicated by immediate onset carpal tunnel symptoms and these often resolve. The Panel does not agree with Dr Jonathan Herald in his report supplementary report of 16 October 2021. In question two and three he replies “Yes trauma is a cause of carpal tunnel syndrome… Sprain or a fracture”. With a carpal tunnel syndrome caused by the accident one would have expected not only immediate onset of symptoms but clear evidence of significant wrist injury in the form of a fracture/dislocation. The diagnosis of carpal tunnel bilaterally 18 months after the motor vehicle accident is coincidental. The carpal tunnel problem is not caused by the motor accident.
There are no clinical or nerve conduction findings consistent with brachial plexus injury. Traction injuries may occur in motorcycle accidents but involve the upper trunk of the brachial plexus, C4-5.
The findings for disputes listed for assessment are these:
cervical spine – soft tissue injury now resolved.
left shoulder – acute chronic rotator cuff tear.
right shoulder – pre-existing rotator cuff tear aggravated by single arm use during the period of incapacity of the left shoulder.
right and left carpal tunnel syndrome – not related to the motor vehicle accident noting that the surgery performed is appropriate.
Brachial plexus injury – not found.
WHOLE PERSON IMPAIRMENT
Permanent Impairment Table
Body Part or System AMA Guides/ The 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
DRE Ich3, pgs 102-107, AMA4
Tables 7 & 8
The GuidelinesYes 0 0 0 2 Left shoulder ch3, 3.1, pgs15-74
T 1-32
The GuidelinesYes 6 0 6 3 Right shoulder ch3, 3.1, pgs 15-74
T 1-32
The GuidelinesYes 7 0 7 13%WPI = percentage whole person impairment
The degree of permanent impairment caused by the motor vehicle accident is 13% which is greater than 10%.
“Cervical spine:
Stable: yes
Reference: AMA Guide 4th edition
Relevant chapters and Table: ch 3, pge 103, Section 3.3h, Table 70, pge 108, Table 73, pge 110
Assessment : DRE Category 1
Whole Person Impairment: 0%
Reason for assessment: A 0% WPI has been assigned as there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injuryLeft shoulder:
Stable: Yes
Reference: AMA 4TH EDITION
Relevant chapters and Table: ch3, pge 41, Section3.1j, figures 38,41,44, pgs 43-45 and Table 3-20
Whole Person Impairment: 6%WPI
Right shoulder:
Stable: Yes
Reference: AMA 4TH EDITION
Relevant chapters and Table: ch3, pge 41, Section3.1j, figures 38,41,44, pgs 43-45 and Table 3-20 ---7% WPI”
Proposed treatment and care
The Panel’s conclusion is that the bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott is not reasonable and necessary in the circumstances of the claimant’s case and does not relate to the injury caused by the motor accident. The Panel notes the insurers submission that Dr Scott wrote to the insurer that he did not attribute the carpal tunnel syndrome to the motor accident.[21] The Panel notes that the clinical records of MacArthur Sports Focus document complaints of numbness in the hand on 26 March 2019. The site is not specified. In April 2019 symptoms of carpal tunnel are recorded in the left hand and later in June there is pain in both hands. However, the symptoms do not become sufficient to warrant investigation until September 2020, 18 months after the motor vehicle accident. The Panel does not agree with Dr Jonathan Herald where he states that trauma is a cause of carpal tunnel syndrome. With a carpal tunnel syndrome caused by the accident one would have expected not only immediate onset of symptoms but clear evidence of significant wrist injury in the form of a fracture/dislocation. The diagnosis of carpal tunnel bilaterally 18 months after the motor vehicle accident is coincidental. In this claimant’s case the carpal tunnel problem is not caused by the motor accident.
[21] Insurer’s Bundle pp 31 and 42.
In this claimant’s case, the Panel is not satisfied that the proposed treatment and care relates to the injury caused by the motor accident. As discussed in paragraph 101 above.
Reasonable and necessary in the circumstances
In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[22] Grove J stated:[23]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[22] [2003] NSWCA 52 (Clampett).
[23] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[24]
[24] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[25] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[25] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[26] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[26] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[27] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[27] [2018] NSWSC 1710 at [29] (Phillips).
We do not accept that there was any injury to the claimant’s hands and wrists caused by the motor accident including whether by way of aggravation of pathology or exacerbation of any symptoms. Accordingly, the Panel does not accept that the treatment relates to the injury caused by the motor accident.
SUMMARY OF PANELS OPINION AND CONCLUSIONS
The Panel’s opinion is that the accident caused a soft tissue injury to the claimant’s cervical spine and injuries to both shoulders.
The Panel accepts that Mr Warke had sustained soft tissue injury to his cervical spine as a result of the accident. At the re-examination and medical assessment the Panel found no asymmetry, dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for her cervical spine was DRE Cervicothoracic Category I, resulting in 0% whole person impairment.
The Panel also accepts that Mr Warke had sustained soft tissue injury to his brachial plexus but this resolved soon after he left Liverpool Hospital and there is no ongoing sign of any injury in this region.
The Panel also accepts that as a result of the motor vehicle accident the claimant suffered injuries to both his shoulders. An MRI scan of his left shoulder in February 2019 showed a full thickness rotator cuff tear which was repaired in July 2019. Within a few weeks of the accident the claimant developed symptoms in his right shoulder. He had an MRI scan in June 2019 which showed a full thickness rotator cuff tear.
Regarding the left shoulder MRI scans of the left shoulder show the presence of an acute and chronic rotator cuff tear with the pre-existing retracted tear of the supraspinatous with fatty atrophy (a long-standing change) of parts of the supraspinatous muscle.
Regarding the right shoulder the right rotator cuff tear was asymptomatic prior to the motor vehicle accident and for a few weeks afterwards but them became symptomatic a few weeks after the accident partly due to being aggravated by single arm use during the period of incapacity of the left shoulder.
The Panel notes that in its re-examination of Mr Warke the range of motion demonstrated in both shoulders was less than that recorded by Dr Herald and Dr Hyde Page. The Panel also notes that in Dr Hyde Page’s recent examination of Mr Warke on 3 November 2023 found a good range of motion demonstrated in both his shoulders but there was still some restriction of internal rotation of both shoulders. The Panel believe this is due to improvement with time and found Mr Warke to be co-operative and consistent in his presentation.
In reaching its conclusions about the causation of the claimant’s left and right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident materially contributed to the claimant’s left and right shoulder injury or exacerbated any such injury.
In conclusion the Panel found that there was 6% whole person impairment of the left shoulder and 7% whole person impairment for the right shoulder caused or exacerbated by the accident.
CONCLUSION AND CERTIFICATION
As a result of the above findings the Panel revokes the certificate of Medical Assessor Kenna dated 21 February 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
As a result of the above findings the Panel affirms the certificate of Medical Assessor Kenna dated 21 February 2023 regarding the bilateral open carpal tunnel release surgery as proposed by Dr Chris Scott. The proposed treatment and care does not relate to the injury caused by the motor accident.
The new certificates are attached at the commencement of these Reasons.
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