Wells v Insurance Australia Limited t/as NRMA Insurance

[2023] NSWPICMP 440

DETERMINATION OF REVIEW PANEL

CITATION:

Wells v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 440

CLAIMANT:

Nathan Wells

INSURER:

Insurance Australia Ltd t/as NRMA

REVIEW PANEL

PRINCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Tai Tak Wan

DATE OF DECISION:

6 September 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 4 October 2019; claimant riding bike and collided with insured vehicle falling to the ground; the dispute concerned the assessment of permanent impairment; repeated Glasgow Coma Scale (GCS) scores of 14 following motor accident with brief loss of consciousness; neuropsychological testing by both Dr Falcon and Medical Assessor Wan showed less than optimal performance; claimant sustained closed head injury which recovered; other body parts examined; no assessable impairment; Held – claimant assessed at 0% permanent impairment; medial assessment confirmed.

DETERMINATIONS MADE:  

Medical Assessment – Permanent Impairment

Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%

The assessment made by the review panel under s 7.23(1) of the Motor Accident Injuries Act 2017 is as follows:

The Panel confirms the certificate dated 7 July 2022.

REASONS

BACKGROUND

1. Mr Nathan Wells (the claimant) suffered injury on 4 October 2019 whilst riding his motor bike when the insured vehicle pulled out from the kerb striking the motor bike and causing the claimant to be thrown onto the ground.

2. Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Wells any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).

3. The present dispute is whether Mr Wells “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]

   [1] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.

4. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).

5. The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 6.2 of the Guidelines.

6. This is a review of a medical assessment pursuant to s 7.26 of the MAI Act.  The medical assessment the subject of this review was conducted by Medical Assessor Cameron and dated 7 July 2022. The Medical Assessor assessed the degree of permanent impairment at 0%.  The details of that assessment are set out later in these Reasons.

THE REVIEW

1. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]

   [3] Section 7.26(10) of the MAI Act.

2. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 7.26(5) of the MAI Act.

3. Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).

4. Part 5 of 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 Merit Reviewer or a Medical Assessor.[5]

   [5] Section 41(2) of the PIC Act.

5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[6]

   [6] Rule 128 of the PIC Rules.

6. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]

   [7] Section 7.26(6) of the MAI Act.

7. The parties provided bundles of documents in accordance with the Panel’s Direction.

8. On 16 February 2023 the Panel issued the following Direction:

   “The Panel notes the following:

   A.    There is prima facie evidence of head injury caused by the motor accident from the following sources which satisfies cl 6.164 of the Guidelines:

   (a)Nature of the motor accident when the claimant fell off the motor bike resulting in at least “minimal damage” to the helmet (ambulance report); and

   (b)Repeated GCS scores of 14 recorded by the ambulance officers and hospital staff.

   B.    The absence of damage shown on the MRI scans of the brain (insurer’s submission) does not negate the prima facie satisfaction of cl 6.164(b) of the Guidelines from the abnormal GCS scores.

   C.    No neuropsychological (or psychometric) testing has been submitted by the parties. The testing is only considered if it “is available” (cl 6.165 of the Guidelines).

   D.    The issue of the extent of any impairment of the head injury is in dispute. 

   The Panel issues the following directions:

   1.    There is reference to “AWPTAS” testing, undertaken at hospital on 4 October 2019 (see Dr Drane’s note – claimant’s bundle, p 275). The testing is likely to be a one-page document. The Panel cannot locate the document in the filed bundles.

   2.    The parties are invited to arrange and file a joint neuropsychological report.

   3.    The parties are to file a joint response to matters 1 and 2 by close of business, 24 February 2023.

   4.    In the absence of a proper response, the matter will be listed for a telephone conference with the Principal Member.”

9. On 24 February 2023 the claimant advised that the insurer had previously rejected its suggestion that a joint neuropsychological assessment be undertaken. The claimant’s solicitor had then arranged an assessment which had taken place on 16 February 2023. He also advised that the “AWPTAS” testing had been requested from Gosford Hospital.

10. The claimant filed further documents and a neuropsychological assessment of Dr Alex Falcon dated 25 February 2023.

11. On 7 June 2023 the insurer advised the Panel that it “does not intend to arrange a further independent neuropsychological assessment”.

ASSESSMENT UNDER REVIEW

1. The Medical Assessor provided a medical assessment dated 7 July 2022 determining that the permanent impairment of the injuries was not greater than 10%.[8] The Medical Assessor found that the claimant sustained soft tissue injuries to the spine and head and a fractured right ankle with associated soft tissue injury.

   [8] Insurer’s bundle, p 6.

2. The Medical Assessor found that the head injury had resolved and there was no loss of range of movement of the right ankle. There were otherwise no assessable impairments of the cervical, thoracic and lumbar spine resulting in an overall impairment of 0%.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel requested and were provided with separate bundle of documents provided by the parties.

PRE-ACCIDENT RECORDS

1. The records from the general practitioner for the three-year period prior to the motor accident refer to generalised body pain and repeated complaints of lumbar spine pain. The claimant was suffering from depression and otherwise prescribed Endone.[9]

   [9] Claimant’s bundle, pp 359-379.

2. A CT scan of the whole spine dated 7 January 2015 was normal with only minor degenerative changes.[10]

   [10] Claimant’s bundle, p 437.

3. On 28 May 2016, Dr Rebecca Martin, pain specialist stated that there was no objective explanation for the neurological status and opined that the claimant suffered from a conversion disorder with an associated adjustment disorder.[11]

   [11] Claimant’s bundle, p 425.

4. A patient registration form completed by the claimant dated 6 June 2016 referred to various symptoms including in the back, sciatica, legs, and various psychological conditions.[12]

   [12] Claimant’s bundle, p 441.

5. The bone and Spect CT scan in July 2016 referred to a clinical history of severe pain in the thoracic and the lumbar spine.[13] The scan showed mild to moderate disease at L1/2.[14]

   [13] Claimant’s bundle, p 407.

   [14] Claimant’s bundle, p 547.

6. In late 2016 an occupational therapist noted the claimant had a long-term physical disability, ambulated with a walking stick, and suffered from psychological symptoms.[15]

   [15] Claimant’s bundle, p 472.

7. Wyong Hospital discharge notes dated May 2017 noted psychological symptoms associated with suicidal ideation and chronic back pain.[16] Similar symptoms were reported in
   

   [16] Claimant’s bundle, p 476.

   [17] Claimant’s bundle, p 492.

   July 2017.[17]

8. In October 2017 Dr Roberts referred the claimant to a different psychologist for treatment of depression disorder and intrusive thoughts.[18]

   [18] Insurer’s bundle, p 409.

9. In a referral to a psychologist dated 12 July 2019 Dr Roberts noted that the claimant was doing well compared to 12 months previously but “still finds it a struggle every day” and poor motivation had meant that further psychological appointments had not been scheduled.[19]

   [19] Insurer’s bundle, p 430.

10. In September 2018, Mr Ball noted the recent resolution of the Court case with no admissions for psychiatric reasons since July 2017. Pain was reported to have improved over the last two years. The claimant was now more independent and was ambulant having purchased a car and motor bike and was collecting his children from school.[20]

    [20] Claimant’s bundle, p 506.

11. A referral from Dr Roberts dated 15 June 2019 noted chronic pain and psychological symptoms. The claimant was on various medication including oxycodone, 10 mg, twice daily.[21] The doctor recorded that the claimant had hallucinations which were associated with lower moods.[22] Depression was otherwise noted in the consultations with the general practitioner in the months preceding the motor accident.[23]

POST MOTOR ACCIDENT

[21] Claimant’s bundle, p 541.

[22] Insurer’s bundle, p 219.

[23] Insurer’s bundle, pp 219 – 220.

Ambulance record

1. The ambulance report notes referred to the claimant being thrown approximately 3m with a suspected “brief LOC post landing”.[24] The bicycle helmet was described as having “minimal damage”.

   [24] Claimant’s bundle, p 225.

2. Complaints of pain were noted to the back, pelvis and right foot with right buttock pain. The GCS was 14 on three occasions (10:55, 1:10 and 11:25).[25]

   [25] Claimant’s bundle, p 228.

Hospital records

1. The hospital notes are extensive and cover the period from 4 to 8 October 2019. The following is a brief summary of these records.

2. On 4 October 2019 at 5 pm the GCS was 14 based on “disorientated but factually conversive”. There was nil cervical spine pain with tenderness noted in the thoracic and lumbar spines.

3. The abbreviated Westmead Post traumatic amnesia scale (A-WPTAS)[26] noted errors with respect to month (correctly identified on the last test) and the year.

   [26] Claimant’s late bundle, p 3.

4. On 5 October 2019 the GCS was recorded at 14 due to “vagueness in responding to questions” and was unable to state the correct year.[27] The claimant was reported as saying that he felt a “bit weird” and “not like my usual self”.[28]

   [27] The error with respect to the year was repeated at other parts in the hospital stay such as “1920” or “1966”.

   [28] Claimant’s bundle, p 325.

5. On 6 October 2019 there was tenderness over L4/5 with reduced sensation distal to right knee. The claimant denied any cervical spine tenderness which was non-tender to palpation.[29] GCS was 14 due to disorientation as to the year which the claimant stated was “1996”.[30]

   [29] Claimant’s bundle, p 277.

   [30] Claimant’s bundle, p 286.

6. On 8 October 2019, Dr Drane noted:[31]

   “Patient failed AWPTAS (scoring 17/18 in ED on 04/10/19)

   Not commenced on WPTA over the weekend

   Provisionally told commence WPTA today given likelihood of further delay.”

   [31] Claimant’s bundle, p 275.

7. The CT scan of the cervical spine dated 4 October 2019 showed no fracture and a small osseous structure adjacent to the C4 vertebra.[32]

   [32] Claimant’s bundle, p 210.

8. Discharge referral notes pain in the lumbar and thoracic spine, right hip and right ankle. It was noted that the claimant remembers the accident and then waking up on the ground. Loss of consciousness was unknown.[33] CT scan of the head showed no acute intracranial haemorrhage or skull fracture.[34]

   [33] Claimant’s bundle, p 231.

   [34] Claimant’s bundle, p 234.

General practitioner

1. The claimant attended his general practitioner, Dr Paul Roberts on 12 October 2019 referring to the motor accident. A flare up of low back pain and right ankle fracture was referenced in the notes.[35] Subsequent clinical notes refer to right arm pain.

   [35] Claimant’s bundle, p 379.

2. A certificate completed by Dr Roberts dated 23 October 2019 noted back and right ankle pain.[36]

   [36] Claimant’s bundle, p 512.

3. A report by Dr Paul Roberts dated 7 November 2019 noted a “long history of lower back pain” which the claimant was “up until the accident was doing very well”.[37]

   [37] Claimant’s bundle, p 206.

4. In a referral to a psychologist dated 26 February 2020, Dr Roberts noted the motor accident and a complex psychiatric history with somatization.[38]

   [38] Claimant’s bundle, p 657.

Physiotherapy

1. A report from Allied health recovery request dated 18 December 2019 noted pain in the low back, thoracic back, right ankle and right wrist. The previous back injury “had recovered”.[39]  A physiotherapy record dated 18 December 2019 referred to low back, thoracic and right wrist pain and right ankle fracture.[40]

   [39] Claimant’s bundle, p 176.

   [40] Claimant’s bundle, p 194.

Radiology

1. An X-ray of the right wrist dated 22 November 2019 was reported as normal.[41]

   [41] Claimant’s bundle, p 418.

2. An MRI scan of the right ankle dated 17 January 2020 showed an undisplaced Weber A fibular fracture with oedema present over the lateral malleolus.[42]

   [42] Claimant’s bundle, p 208.

3. An MRI scan of the right ankle dated 19 April 2021 showed small tibiotalar and subtalar joint effusions. No ligament tear or tendon pathology was identified.[43]

   [43] Claimant’s bundle, p 779.

4. An MRI scan of the brain dated 6 August 2021 showed no intracranial pathology.[44]

   [44] Claimant’s bundle, p 614.

5. A CT scan of the lumbar spine dated 23 December 2021 showed degenerative changes without marked neural compromise.[45]

   [45] Claimant’s bundle, p 781.

Specialist treating records

1. In a report dated 27 July 2022, Associate Professor Russo, pain specialist, noted the claimant showed diffuse pain. The doctor opined that the widespread pain was due to physical deconditioning and central sensitisation and recommended Pain Clinic therapy.[46]

   [46] Claimant’s bundle, p 788.

Statement – claimant

1. Mr Wells provided a statement dated 6 September 2022.[47] He stated that he remembered the motor accident and was knocked off his bike. The helmet he wore was damaged and not useable after the motor accident. Mr Wells stated that he did “not have a clear memory of the events after I was injured”.[48]

   [47] Claimant’s bundle, p 15.

   [48] Claimant’s bundle, p 16.

2. Mr Wells referred to the accident in 2015 when he sustained physical injuries and psychological injuries.  He said that he wore a cam boot for months after the motor accident and continues to suffer from neck and back pain with numbness in the buttocks and pain in the right leg and ankle. 

3. Mr Wells completed a claim form dated 18 October 2019. He referred to injuries to the neck, back, head, arms and legs and a fractured ankle caused by the motor accident.[49] Mr Wells stated that he was suffering from “mental illness” at the time of the motor accident.

   [49] Claimant’s bundle, p 24.

Police officer

1. The police officer attended the scene and noted that Mr Wells was receiving medical treatment. The officer subsequently obtained the following version of the accident:[50]

   “I was riding. I remember a car pulling out and it knocked me off my bike. I remember hitting the gutter, coming off my bike and then hitting the ground. I then remember waking up and some guy by my side. I remember trying to get up but I couldn’t.”

Insured

[50] Claimant’s bundle, p 42.

1. The insured provided a statement concerning the motor accident and his observations of the claimant. He stated:[51]

   “Um, when i got to him he, he was ah, sort of dazed. I wouldn’t say he was, I wouldn’t say he was wide awake. Um, he ah, didn’t appear to be in pain, I couldn’t see any pain on him. He was just laying flat but when he went to get up that’s when he was complaining about his leg.”

   [51] Claimant’s bundle, p 53.

Qualified opinions

1. Dr Davis was qualified by the claimant and provided a report dated 7 December 2021.[52] The doctor described “variable” cervical spine pain which moves from side to side. He assessed impairments of the cervical and lumbar spine and right ankle due to the motor accident.

   [52] Claimant’s bundle, p 791.

2. Dr Morris, psychiatrist, was qualified by the claimant and provided a report dated
   

   [53] Claimant’s bundle, p 802.

   3 September 2022.[53]  The doctor opined that the claimant suffered from numerous psychotic symptoms, diagnosed schizophrenia which was unrelated to the motor accident and required treatment. No assessment of the effects of the motor accident could be made until this treatment had occurred.

3. Dr Rickard-Bell, psychiatrist, was qualified by the claimant and provided a report dated
   

   [54] Insurer’s bundle, p 496.

   11 August 2022.[54] The doctor accepted that the claimant sustained an acute stress reaction following the accident but otherwise continued to suffer from the effects of the pre-existing post-traumatic stress disorder and major depression which were not aggravated by the motor accident. Accordingly, Dr Rickard-Bell opined that there was no diagnosable psychiatric injury caused by the motor accident.

Medical Assessor Samuell

1. Medical Assessor Samuell issued a Medical Assessment dated 3 August 2022.[55]

   [55] Insurer’s bundle, p 15.

2. The Medical Assessor noted:

   “His narrative was implausibly vague. His difficulty with recall of ordinary autobiographical details was inconsistent with his claimed injuries. He had difficulty answering follow-up questions with experiential detail. He conveyed a low level of functioning.

   His affect was reactive and observed within a normal range.

   It was consistent with his narrative. His cognitive functioning was abnormal at a clinical level. He could not recall many relevant autobiographical details. It was difficult to know whether his cognitive functioning was genuinely impaired.

   He described pseudo-hallucinatory and pseudo-delusional phenomena that were highly atypical of true psychosis.”

3. The Medical Assessor concluded that the motor accident aggravated the pre-existing post-traumatic stress disorder and major depression but that the motor accident did not cause any further impairment.

4. Dr Alex Falcon, neuropsychologist, was qualified by the claimant and provided a report dated 25 February 2023.[56] The doctor noted that the claimant performed extremely poorly on testing indicating that he was not applying himself. The doctor stated:

   “Based on these performances, the current assessment cannot be taken as a valid and reliable indicator of Mr Wells’ actual cognitive abilities. These findings reflect suboptimal performances and indicate that he can certainly perform much better than currently demonstrated. Performances are nevertheless reported in the following sections, in view of supporting opinion formulation.”

   [56] Claimant’s late bundle, p 25.

1. Dr Falcon concluded that the motor accident likely caused a concussion. The doctor concluded that the “there would not be any expected cognitive impairments that would functionally limit his abilities resulting from the severity level of his head injury”.

SUBMISSIONS

Claimant’s submissions dated 22 December 2022[57]

[57] Claimant’s bundle, p 4.

1. These submissions sought a review of the assessment provided by Medical Assessor Cameron. He submitted that the Gosford Hospital Progress Notes show an altered Glasgow Coma Scale (GCS) and failed PTA testing. The claimant submitted the notes show:

   ·        disorientation from 4 to 6 October 2019;

   ·        loss of consciousness for 30 minutes or less on 4 October 2019;

   ·        PTA for less than 24 hours on 4 October 2019, and

   ·        GCS of 14 from 4 to 6 October 2019.

2. Loss of consciousness was recorded by the ambulance officer and reference was made to the statements by the insured driver and the claimant’s version to the police officer.

3. The clinical notes of 4, 5 and 6 October 2019 record disorientation to date, month and year.

4. Progress notes on 4 October 2019 refer to a treatment plan including “AWPTAS” but this was not undertaken and the length of PTA was not assessed.

5. Progress notes on 4, 5 and 6 October 2019 show altered GCS. Nursing notes on
   6 October 2019 record decreased levels of alertness.

6. The claimant referred to “Guidelines” which note the importance of differentiating between uncomplicated mild TBI and a complicated mild TBA. In the latter, neuropsychological performance in the early days and weeks may be poorer and longer-term cognitive outcome may be worse.  It was noted that most mild TBI are not characterised by gross structural brain changes and that “axons are stretched or twisted without being sheared or torn and most axons recover over time”.

7. The claimant submitted that there were medically verified abnormalities including abnormal GCS and failed PTE testing. The severity of the claimant’s brain injury was not made known to him after his discharge from Gosford Hospital and therefore his injuries were not fully treated. Further, the insurer did not agree to fund an initial consultation with a neurologist and a recovery plan was not organised in accordance with the Motor Accidents Guidelines.

8. The claimant referred to the neuropsychological assessment which must be considered (cl 6.165 of the Guidelines).

9. The claimant noted his pre-accident health which included an accident in 2015 when he fell into an open telecommunications lid. It was submitted that his health was improving as he was looking for work, renovating a property and preparing to travel to Tasmania.

Claimant’s submissions dated 13 April 2021[58]

[58] Claimant’s bundle, p 75.

1. These submissions note the mechanism of the motor accident. It was submitted that the claimant had a number of pre-existing physical and psychological injuries. With respect to the low back, the general practitioner stated that the claimant was doing very well up to the motor accident. 

Claimant’s submissions dated 1 August 2022[59]

[59] Claimant’s bundle, p 79.

1. These submissions addressed error by the Medical Assessor including a failure to consider the lowered GCS scores registered by the ambulance officer and at hospital.

Claimant’s submissions dated 16 September 2022[60]

[60] Claimant’s bundle, p 83

1. These submissions addressed error by the Medical Assessor including a failure to consider the lowered GCS scores recorded at the hospital. It was also noted that the claimant failed AWPTAS in the emergency department on 4 October 2019. On 8 October 2019 Dr Drane recommended the need for WPTA. The plan was not followed.

Insurer’s submission undated[61]

[61] Insurer’s bundle, p 519.

1. The insurer referred to the hospital records and noted that imaging did not support a brain injury. It submitted that any injury to the lumbar spine, in light of the significant pre-existing history, resolved and does not result in any permanent impairment.

2. The insurer submitted that there was no injury to the cervical spine based on the absence of complaint in the hospital, physiotherapy and rehabilitation records. It also submitted that there were no specific injuries to the right arm, left arm, right leg and left leg (apart from the right ankle).

3. The insurer accepted that there was a soft tissue injury to the right hip which resolved within a short period.

4. The insurer accepted that the motor accident caused a right ankle fracture which healed with conservative treatment. A report from AHRR dated 18 December 2019 indicated “loss of 10 degrees plantar flexion”. No further treatment was required. 

5. In respect of the right-hand injury, the insurer noted that there was mention of injury “a number of weeks after the subject accident”. No specific records evidence any injury which would attract any permanent impairment.

Insurer’s submissions dated 25 August 2022

1. These submissions were filed opposing the application to review the Medical Assessment.[62] Apart from submitting that there was no error in the Medical Assessment, the insurer referred to the following objective evidence:

   (a)    the NSW Ambulance report noted that the claimant was wearing a helmet “with minimal damage”. The claimant denied cervical pain, abdominal pain, nausea or headache;

   (b)    the claimant underwent a CT scan of his brain, pelvis, femur, cervical spine, chest and abdomen whilst at Gosford Hospital, on 4 October 2019. That scan detected no head fracture, no haemorrhage, mild mucosal thickening the right maxillary sinus opacification of the anterior ethmoid air cells;

   (c)    an MRI brain scan dated 6 August 2020 revealed no definite intracranial abnormality. An air fluid level in the right maxillary antra is in keeping with acute sinusitis, and

   (d)    an MRI brain scan dated 6 August 2021 revealed no intra or extra axial mass lesion, collection or haemorrhage.

   [62] Insurer’s bundle, p 2.

2. The insurer submitted that despite the GCS scores, brain imaging did not evidence any brain injury and there was no abnormal post traumatic amnesia. Whilst the Medical Assessor did not explain the why the Mini Mental State Examination (MMSE) was, invalid, he considered the claimant’s cognitive status and his response to questions to be inconsistent. Medical Assessor Cameron noted that the claimant was not able to provide a reason for this apart from the fact that he was concentrating to the best of his ability. This conclusion was consistent with the opinion of Medical Assessor Samuell concerning the claimant’s inability to recall ordinary autobiographical details.

3. The insurer referred to the claimant’s long history of psychological issues which included, post-traumatic stress disorder, significant depression and hallucinations.

4. The insurer submitted:

   “Taking into consideration of the above, the insurer submits that the claimant had significant issues with major depression, possible psychosis and somatisation disorder prior to the subject accident. The insurer submits that even if the MMSE score of 17/30 is valid, the claimant’s current symptoms and functioning are wholly attributable to his pre-existing psychological condition.”

RE-EXAMINATION

1. Mr Wells was examined by Medical Assessor Tai Tak Wan of the Review Panel. The examination report is as follows:

   “The claimant attended the assessment with a Support Social Worker, Meyrick Harris (from Neami National). The assessment, including history taking, cognitive functions assessment and physical examination, lasted for 2 hours.

   The Panel is to review the certificate of Ian Cameron dated 7/7/2022 for WPI disputes. The Panel decided that we have to do a de novo examination for all the injuries.

   Date of birth: The claimant insisted that his birthday was XXXXX . However, all the supporting documents show that his birth date should be a different year. I checked his driving licence, which states his birthdate should be the latter. The claimant could not explain the discrepancy. However, he said he is 43 years old.

   Date of accident: 4/10/2019 (~2 ½  years ago)

   The following injuries were referred by the Personal Injury Commission for assessment:

   ·     Head - closed head injury causing loss of consciousness

   ·     Cervical spine – mechanical injury

   ·     Lumbar spine - musculo-ligamentous injury

   ·     Hip - musculo-ligamentous injury

   ·     Right arm - musculo-ligamentous injury

   ·     Left arm - musculo-ligamentous injury

   ·     Right leg – peripheral nerve injury

   ·     Left leg – peripheral nerve injury

   ·     Ankle - Fractured, undisplaced lateral malleolus fracture, tibiotalar and subtalar joint effusions

   ·     Hand - musculo-ligamentous injury

   ·     Thoracic spine - musculo-ligamentous injury

History as Given by the Injured person

Pre-Accident Medical History and Relevant Personal Details

Mr Nathan Wells 42 years old, and unemployed. He said he was renovating his house at the time of the subject motor vehicle accident (MVA), but he had stopped that since the subject MVA.

Past Health

Mr Wells initially denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject MVA.

He denied any history of allergy to medications.

However according to the certificate of Assessor Cameron, Mr Wells received disability pension on two occasions: ‘… The first was from age 17 and he could not give a clear reason for this.  The second occasion was after he fell down a hole in 2016.  He said there was a prolonged period of recovery from this and he said that after three years, he was able to stop medication. The clinical records show that Mr Wells has had significant past mental health problems…’. Mr Wells said he could not remember them and could not give further details on the matter.

According to his statement dated 6 September 2022 [‘Documents for review panel, p.13], he was injured on 5 January 2015 when he felt into an open pit on the footpath and had physical and psychological injury. He also received treatment for his mental health prior to the subject MVA.

Social History

Mr Wells was born in NSW, Australia. He said he received education up to high school but could not tell me which year he achieved. He could not whether his academic performance was above or below average. It seems his best subject in school was woodwork, but he could not tell me which was the worst subject.

He said he did different odd jobs, but he could not remember details. He does not have any recognizable qualification and trade licences.

According to his statement dated 6 September 2022, after he left school he did a number of jobs, including barman, tradesmen, welding, tyre fitting and on a production line at McCains. He also self-employed in fabrication, repairs and restoration. He did not work between January 2015 and December 2019 but was looking for job at the time of subject MVA. He said he lost the opportunity to take up the work offered by Paul Stewart because of subject MVA.

According to his statement dated 6 September 2022 [‘Documents for review panel, p.12], he was sexually abused by close relations, but he did not want to discuss that.

He lives with his mother (77 years old) in a single storey house with 3 steps. He complained that sometimes he has pain in the knees when he walks down the steps.

According to his written statement he has 2 sons, but he did not want to talk about his sons or his previous partner.

He has 2 daughters (aged 31, 33) who live separately.

He is a chronic smoker 20 cigarettes a day, and a drinks alcohol 10 units 3 times a week.

He drives a manual car without problems.

He said he does not go to gym or does other sports regularly. He likes driving a motorbike, but he stopped riding because of the flashbacks.

History of the Motor Accident (from the claimant)

Mr Wells said he could not remember the date of accident but knew that it was in 2019. He could not recall the time of the accident, even whether it was in the morning or afternoon. He believed the accident occurred in Killarney Vale, but he could not name the road. He was riding his motorbike, with his usual helmet and ‘normal clothes’ and a jean at a speed around 40 km/hr. He said suddenly a car pulled out from the kerb and came in front of him, and his motorbike collided with the car. He believed he had ‘black-out’ for 15 seconds and felt to the ground. The last thing he could remember before unconscious was that he was thrown into the air after the collision. The next thing he could remember when regained consciousness was that he lied on the ground and a man came to help him. That suggested that the retrograde amnesia was around several seconds and anterograde amnesia was in term of seconds to minutes. He remembered that both police and ambulance came to the scene, and he was taken to Gosford Hospital. He was discharged few days later. He was sure whether his motorbike was written off or repaired. It was unclear from him whether anyone else was injured in the accident. However, it seems that he remembered most details of the accident.

History of Symptoms and Treatment Following the Motor Accident

Mr Wells said he complained of pain the head, neck, back, Right wrist and right ankle soon after the accident. He believed he has sustained the following injuries from the accident:

·     Fracture right ankle

·     Head injury - headache

·     Injury to the back

·     Injury to arms and legs

·     Depression

·     Injury to the neck.

He was seen by his GP after discharge from the hospital. He attended the fracture clinic of Gosford Hospital 2 weeks after discharge, and for 4 to 5 times. He was given a ‘camboot’ for the right foot. He was seen by physiotherapist of the hospital, but it was taken off because of ulcer in the right foot. He did not have any surgical treatment for the fracture.

He could not remember whether he did any memory tests in ED or in the ward. However, he may have seen a neuropsychologist, in January 2023 but could not recall seeing any brain injury specialist or any rehabilitation physician.

He was referred to a pain specialist, Dr Russo, who gave him some pain patch. He attended a ‘pain program’ by telehealth only. He did not find the program helpful.

He recalled he has seen an occupational therapist, referred by his solicitor.

He said he was referred by his solicitor to a neurologist, who ordered an MRI, which apparently showed no abnormality. He could not name the neurologist and could not tell when he saw the neurologist.

He said he have been seeing a psychologist since 2020, and still seeing him once a month ongoing. However, he could not give any details about the treatment of his mental illness prior to the subject MVA.

He said no one has ever helping regarding his return to work (RTW).

Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident

Mr Wells denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA. However later he admitted that he has a bicycle accident in 2019 while he was in Melbourne, causing fracture right scapula. He could not give further details.

Current Symptoms  

Her current complaints are as follows:

·     He complained that his memory is not good since the accident. He said he might get loss and cannot find his way home. He has a mobile phone with GPS, but he said he does not know how to use it. He said he cannot cook now although previously he could. He said he does not go to gym now, but he went to gym twice a week. He spends most of the day at home doing nothing, He now loses confidence in doing anything. He broke up with his girlfriend 9 months ago, but he did not want to talk about it. He just feels that his brain is not alright and cannot solve problems. He has no strategy to tackle the problems and has never seen any therapist or specialist for that.

·     Low back pain, 6/10 in visual analogue scale (VAS). It is a constant sharp pain and sometimes goes to the right leg. It is aggravated by prolonged walking or picking up from the ground.

·     Upper back pain, 7/10 in VAS. It is a constant ‘sharp pressure’.

·     Right ankle pain, 6/10 in VAS. It is a intermittent ‘pressure’ pain. It is aggravated by walking.

·     Right wrist pain, 5/10 in VAS. It is an intermittent dull ache, affecting the whole wrist. It is worse if the weather is cold.

·     Sleep is not good, mainly due to late sleeping and early wakening. He snores significantly at night but he has never checked about sleep apnoea.

·     He said he has problems with anxiety, depression and PTSD. Sometime he may get confused.

He reported no problem in the bowel function but complained he has urine incontinence (‘unable to control’) for a long time.

He said at most he can sit for 3 hours, stand for 40 minutes and walk for 5 minutes. He can drive for 3 hours.

He is independent in the personal hygiene care and most activities of daily living (ADL). He said his mother does most of the housework although he sometimes helps the housework.

Current and Proposed Treatment

Mr Wells stated that He has been taking the following medication:

·     Pristiq 150 mg 2 tab mane (anti-depressant)

·     Olanzapine 5 mg daily (anti-psychotic)

·     Aspirin 100 mg daily

·     Panadeine forte 1- 2 tab bd when necessary

·     Valium 5 mg 1 tab when necessary (benzodiazepine, sedative)

He said he once received physiotherapy but has ceased them now.

He said he saw an occupational therapist once. He sees a psychologist once a month.

Findings on Clinical Examination

Clinical Examination

Examination on 31 July 2023 showed that Mr Wells looked tidy and alert. He said he is 6 ft (82 cm) tall, and weighs 118 Kg, which gave a BMI of 35.6. in the ‘obese’ range. Significant pain behaviours were observed during the interview. He spoke with a low volume voice slowly and looked a bit depressed. He was not cooperatively in answering questions and did the tests, saying he did not want to do it. The mental status screening was aborted as requested by the support social worker, saying the tests were too stressful.

He walked independently without walking aid in a normal symmetrical gait. He could walk on tiptoes, on heels, and in tandem (heel-toes) way. However, He refused to squat, complaining pain in the hips and the knees. He could dress and undress independently. He could get on the examination couch independently.

He is right hand dominant.

Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was reported normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia found. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no obvious difficulty in communication, both in expression and comprehension, but from time to time the claimant paused the conversation and assessment because of ‘being stressed’. There were no cerebellar signs found. Romberg test was normal.

Mental State Screening

Mr Wells did not complete Folstein Mini Mental test (MMSE). He said he could not tell the year, date, month or day of the week, and only tell the season. He could name the Country but could not name the state, City, Suburb or the floor of the building. He could not spell ‘World’ and refused to attend the serial 7 test. He could read and write a sentence, copy the interlocking pentagons, repeat a simple phase, and follow a 3 steps command but refused to do short term verbal memory tests, saying it was too stressful. The supportive social worker then requested to stop the test. Therefore, MMSE could not be completed. After a rest of 10 minutes the claimant agreed to continue other tests.

He could copy figures including 3-dimensional cubes and had no problem in alternating sequences. However, He drew a clock with number 1 to 15 but skipping 9 to 11. He refused to do any written arithmetic tests. He refused to give answers to the questions of 3 differences and 3 similarities between an apple and orange.

In summary, the claimant did not complete with the mental state screening and even for the tests he did, it was quite obvious that maximum efforts had not been given, or significantly affected by his psychological condition, or severely brain damaged (which is unlikely considering the history, his current condition, and other clinical observation).

CERVICAL SPINE (Cervicothoracic)

Examination of the neck showed mild tenderness diffusely but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. There was ‘slight’ numbness in the right upper and lower limbs which did not follow any dermatomal distribution or peripheral distribution and could not even classified as non-verifiable radicular complaints. Active movements of the neck were normal with no evidence of dysmetria (asymmetrical loss of motion).

[All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer]:

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	normal	normal	normal	normal	normal	normal

THORACIC SPINE (Thoracolumbar)

Examination of the upper back showed mild tenderness over left scapula region but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

LUMBAR SPINE (Lumbosacral)

Examination of the lower back showed very mild tenderness in the lumber region, but no muscle spasm or guarding. There was ‘slight’ numbness in the right upper and lower limbs which did not follow any dermatomal distribution or peripheral distribution and could not even classified as non-verifiable radicular complaints. There were mild restrictions in active movements of the lumbar spine, but there was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	2/5 normal	2/5 normal	Normal	Normal	3/5 normal	3/5 normal

Straight leg raising was 80° in on both sides, in supine position.

UPPER EXTREMITY

Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5 cm larger than the left side, which was within the normal limits, given that he is right hand dominant. Measurement of mid-forearm circumferences showed that the right side was 0.5 cm larger than the left side, which was also within the normal limits. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. There was ‘slight’ numbness in the right upper and lower limbs which did not follow any dermatomal distribution or peripheral distribution, otherwise sensation was normal in both upper limbs.

[All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:

Shoulder	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right /°	175	50	175	50	85	85
Left /°	175	50	175	50	85	85

Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.

Elbow	Flexion	Extension	Pronation	Supination
Right /°	140	0	80	80
Left /°	140	0	80	80

Examination of the wrists showed no deformity or swelling. Active movements of the wrists were all symmetrical and within normal limits.

Elbow	Flexion	Extension	Pronation	Supination
Right /°	60	60	20	20
Left /°	60	60	20	20

Examination of the hands showed no deformity or swelling. Active movements of the hands and fingers were all symmetrical and within normal limits.

LOWER EXTREMITY

Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-calf circumference showed that the right side was 0.5 cm larger than the right side, which was within normal limits. Measurement of mid-thigh circumference were equal on both sides. Measurement of the ankle showed that the right side was 0.5 cm larger than the left side which was still within normal limits.

Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was ‘slight’ numbness in the right upper and lower limbs which did not follow any dermatomal distribution or peripheral distribution, otherwise sensation was normal in both upper limbs.

Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was reduced on both sides, limited by the pain in the back. Active movements of the hips were normal and symmetrical.

Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive antero-posterior laxity or mediolateral laxity, suggesting the cruciate and collateral ligaments were intact. McMurray’s test. McMurray’s test was normal on both knees, suggesting the menisci were intact. Active movements of knees were within normal limits.

Knee	Flexion	Extension
Right /°	140	0
Left /°	140	0

Examination of the ankles showed no deformity or swelling. Active movements of the right ankle were mildly restricted. The claimant complained of pain when moving the right ankle. Movements of the left ankle were normal. Clinically no effusion of the ankle joints could be detected.

Ankle	Plantarflexion	Dorsiflexion	Inversion	Eversion
Right /°	40	20	25	15
Left /°	50	25	25	15

Examination of the chest showed that there was some tenderness over the sternum. However, there was no crepitation found on breathing, with no significant ‘steps’ or mass of sternum or ribs to suggest nonhealing. Air entry was normal and symmetrical.

Examination of the abdomen was unremarkable.

Consistency of Presentation

I have already mentioned above the inconsistency in the mental status examinations.

Regarding physical injuries, the complaints of numbness of both right upper limb and right lower limbs were subjective and did not follow any peripheral nerves distribution or dermatomal distribution. Otherwise in general the physical findings and consistent with the complaints.

5. Review of Documentation

Relevant Imaging Studies and Other Investigations

The claimant did not bring any X-ray films or reports to the assessment, because ‘he forgot’.

The following radiological investigations were done in Royal North Shore Hospital (RNSH) and enclosed in a Discharge Referral for a pre-existing injury:

o   CT whole spine, CT abdomen & pelvis, of 7-1-2015, reported by Dr K Lederer – which showed no intra-abdominal abnormality. No CT evidence of post traumatic intra-abdominal injury. CT spine did not show any evidence of fracture or subluxation of cervical, thoracic and lumbar spine. There was a small chronic bony bridge/spur posterior to the thecal sac at T4-5 level mildly encroaches on the thecal sac and results in mild short segment spinal canal stenosis but narrowing of the thecal sac only up to 10 mm AP diameter. Similar, but much smaller bony focus also segment T3-4 was also seen.

o   MRI whole spine of 8-1-2015, reported by Dr David Kang – showed no evidence of spinal cord injury, epidural haematoma or vertebral fracture. There was calcification at T4-5 posterior epidural apace partially indents the thecal sac but did not impress upon the cord. There was disc-osteophyte complex at C5-6 causing moderate central canal stenosis and impression upon the anterior thecal sac. There was probable impingement of the exiting right L5 nerve root secondary to disc protrusion.

o   MRI Brain of 19-1-2015, reported by Dr Nancy Jang – which showed no sequelae of intracranial trauma.

·     CT thoracolumbar spine of 24/6/2016, reported by Dr Nath Ganesh Iyer – which showed moderate bilateral facet arthropathy at T6/7 and T7/8. There was mild L1/2 and L5/S1 spondylosis without focal disc protrusion or nerve root compression. Moderate bilateral facet osteoarthritis (OA) at L5/S1 was seen.

·     Bone scan with Spect/CT of 11-7-2016, reported by Dr Sandeep Sharma – which showed Mild to moderate discovertebral disease at L1/L2 level. There was Low grade facet arthropathy at (R) T6/T7, (R) T7/T8 and (R) L5/S1 levels. The scan was done 18 months after the fall in 2015, and the ‘Clinical Assessment’ stated that, '…. Severe pain in thoracic and lumbar spine post-fall 18 months ago. Degenerative changes in bilateral T6/T7 and T7/T8 facet joints and bilateral L5/S1 facet joints on recent CT…’

·     CT Brain of 12/11/2022, taken at Gosford Hospital, reported by Gemma Sheehan-Dare – which showed no acute intracranial abnormality.

·     CT Angiogram Cardiac of 14/11/2022 taken at Gosford Hospital, reported by Karin Lederer – which showed No coronary artery calcification. Tiny foci suggestive of non-calcified atheroma in the pLAD and at the origin of the first diagonal branch, minimally obstructing (much less than 25%).

·     The following radiological investigations were done in Gosford Hospital and enclosed in a Discharge Referral for the subject MVA:

o   CT Chest, Abdomen & Pelvis, CT Brain of 04-OCT-2019, reported by Dr Mina Chung – CT brain was normal, apart from mild mucosal thickening of the right maxillary sinus opacification of the anterior ethmoid air cells, which were pre-existing and causally unrelated to the subject MVA. There was no acute intracranial haemorrhage or acute skull or cervical spine fracture. There was no acute soft tissue or bony injury of the thorax, abdomen or pelvis.

·     MRI right ankle of 17/01/2020, taken at Gosford Hospital, reported by Dr Nath G Iyer – which should undisplaced Weber A fibular fracture, the lateral ankle ligament appeared intact. Ligaments of the the tibiofibular syndesmosis were intact. There was mild retrocalcaneal bursitis.

·     MRI Right Ankle of 19/4/2021, taken at Central Cost Radiology, reported by
Dr Andrew van den Heever – which showed small tibiotalar and subtalar joint effusions. No ligament tear or tendon pathology was present.

The MRI was done 1 ½ years after the subject MVA, and approximately 2 ½ years ago.

·     CT lumbar spine of 23/12/2021, taken at Life Medical Imaging Bateau Bay, reported by Dr Mark Cooper – which showed lumbar spine degenerative changes but without marked neural compromise at this stage. There was only minor annular disc bulge at L3/4, L4/5 levels but clinically they were insignificant.

Summary of Relevant Documentation Provided for the Initial Assessment

The ambulance report showed that the subject MVA occurred on 4 October 2019 at Warratta Road, Killarney Vale NSW. It was stated that, '… 38 yr old male rider in car vs motorcycle MVA. Pt was riding approx. 40kh/hr, when struck on l side by car leaving driveway. Pts motorcycle immediately jolted sideways, throwing pt approx. 2-3m to grass sidewalk, onto posterior with suspected brief loc post landing. Pt wearing helmet with minimal damage, c/o immediately of back, pelvis and r foot pain. O/A pt alert and orientated, well perfused, supine roadside with police. O/E pt GCS 14 (4+4+6)… lungs clear bi-laterally, nil chest pain or sob. denies cervical pain, abdo pain, nausea or headache. C/O midline lumbar pain, r buttock pain, and r ankle pain. decreased sensation to bi-lateral legs distal to lumbar region. Nil visible deformity, crepitus or swelling to regions. spinal precautions taken, hard collar with pelvic binder applied. … 10mg morphine iv to good effect. ice applied to r ankle. code 3 passed to Gosford hospital, …’. GCS score was 14 [4(spontaneous)+4(confused)+6(obey command)] on 3 observations.

Discharge summary of Gosford Hospital showed that the claimant was admitted on 4/10/2019 and discharged on 8/10/2019. Dr Callum Gin, JMO of Dr MoloneyColorectal stated that, ‘…38 year old male … presented to this facility with Motor vehicle accident (MVA). He was admitted under Dr Moloney (Colorectal). … MBA Driving at approx 40KPH on motorbike and struck car which was coming out of driveway… thrown approx 3M from bike… Remembers accident but then just remembers waking up on ground - LOC for ? how long at scene …CO lumbar back pain Midline and pain In right hip and right ankle … BIBA with Cervical collar in situ … pelvic splint in situ…

‘no anterior neck pain - nil focal tenderness to cervical spine …Chest clear, no bruising or external signs of trauma - No chest wall tenderness and no obvious crepitus or clinical rib fractures …  GCS 14 - confused speech - disoriented to time and place … Decreased sensation over lower legs from thighs down R>L, Normal perianal sensation,  NO priapism… mildly tender mild thoracic spine (T6-7), and ++tender Lumbar spine LI-3 … Right ankle slightly swollen but no obvious bony tenderness Mild right thigh pain but no obvious clinical femoral fracture…

‘Past medical history: PTSD, Major Depression, Conversion disorder (as reported by patient)…

‘Undisplaced lateral malleolus fracture right ankle.. Reviewed on admission by Orthopaedics…  Placed in Camboot… For conservative management with follow-up in orthopaedics outpatients clinic… Take simple analgesia (paracetamol +/- ibuprofen) as needed as first line for pain… Take Endone for breakthrough pain…Take aperients (movicol) as needed for constipation, especially while taking endone…’.

In the progress notes of Gosford Hospital, dated 4/10/2019, Dr Andrew Thompson Drane, JMO of General Surgery, stated that on Examination, ‘ …GCS 14 – disoriented but appropriately conversive… Helmet appears undamaged. No scalp injury / laceration, No facial injury / laceration. No facial bone tenderness, no oral injury, loose or damage teeth. Neck FROM [full ranges of motion], C-spine cleared radiologically and clinically by ED prior to my preview…. No thoracic or abdominal /flank bruising…. Upper limb ROM intact, no joint or bony pain, Abrasion right ring finder…Right greater trochanter tenderness. Nil left. Left lower limb preserved ROM and power 5/5 throughout, flexion at hip causing discomfort to lower back. Altered sensation (numbness) lateral foot and calf to knee. Right lower limb preserved ROMM and power at hip, knee. Unable to assess ankle due to presence of camboot. Sensation above knee normal, unable to assess below…Plan:… Admit ASU -  Dr Moloney… AWPTAS for concussion injury…’.

In an ‘Addendum’ entry dated 8 October 2019, Dr Drane stated, ‘Discussion with OT re: need for WPTA – Patient failed AWPTAS (scoring 17/18) in ED on 04/10/19… not commenced on WPTA over the weekend,,,, provisionally told commence WPTA today, given likelihood of further day delay due to clinical load if not started at current opportunity while chase formal response from registrar/ consultant. Provisional yes in line with above by Dr Clayton while awaiting Dr Moloney input. Dr Maloney indicating no current requirement for formal testing… OT informed of above...’.

In an entry dated 8/10/2019, Diane Ives, and occupational therapist, stated that, ‘OT note failed Abbreviated Post Traumatic Amnesia test in ED 4/10/19 (A-WPTAS – score 17/18). OT therefore liased with team (Andrew RMO) re ?need for full Westmead PTA testing. Initially advised by RMO to commence Full PTA testing although later advised following RMO further d/w Dr Moloney formal PTA not required therefore NFA. Please refer if any other OT issues identified…’.

In the Abbreviated Westmead Post Traumatic Amnesia Scale (A-WPTAS) score sheet, the scores were not recorded properly. The first assessment was done on 4/10 (presumably 2019, probably done in ED) at 19:27. Eye opening was spontaneously (4), ‘Obey commands’ scored 6. but the orientation questions were not recorded apart from a ‘-‘ for Year. However, the best motor response was confused (4), and total GCS score was 14/15, suggesting the scores for ‘person, place, reason for admission and month’ were probably 1 each, and 0 for ‘year’. The 2^nd assessment was done at 20:30. There was a tick at ‘person’, ‘place’ and ‘reason for admission’ but a ‘-‘ for month and year. The best response however was confused (4), eye open spontaneously (4), obey command 6, and total GCS however was 14/15. The picture recognition all had a tick, but there is not ‘Total picture recognition score’ but presumably it should be 3. There was no ‘total A-WPTAS score’, but if we added the sub scores, it should be 17/18.

The 3^rd assessment was done at 11:10. Eye open spontaneously (4), There was a tick for person, place, reason for admission and month but a ‘-‘ for ‘Year’, and the bestveral response score was confused (4). Apparently the claimant could not give the correct Year. Total CGS score was 14/15. There was no score for picture recognition, and no Total AWPTAS score recorded.

[It was unfortunate that the no formal full PTA assessment was done subsequently.]

In a nursing notes dated 6/10/2019, it was stated that, ‘… Pt was alert and orientated but not orientated to year. Pt stated it was 1996…’

The panel noted that when the claimant was seen by Assessor Wan, he still could not tell the current month or year and insisted that he was born in 1977. It seems that it could be a long term problem.

In a report dated 25 February 2023, Dr Alex Falcon, a senior neuropsychologist, stated he assessed the claimant on 16 February 2023 at the request of the claimant’s solicitor. He stated that, ‘… Mr Wells reported that he thought he had attended Primary school in Colyton, though he had difficulties in reporting his academic history and progress throughout schooling. He repeatedly stated that he had a ‘mind blank’ and was unable to recall his general grades and whether there were any difficulties throughout his early Primary education. Mr Wells reported that he thought that he progressed to Colyton High school, again having difficulties in recalling specifics regarding his grades and overall level of performances. Generally, he reported that he thought that he was in the middle of hisclass, and that he was an overall average level student. He reported that he completed to Year 10, though again appeared vague in his recollection,..’.

Dr Falcon administered a common battery of tests, including Weschler Adult Intelligence Scale-IV, Wechsler Memory scale-IV, TOMM, and Depression, stress and anxiety scale -21 item version (DASS).

Regarding pre-existing intellectual function, he opined that, ‘Based on pre-accident educational and occupational history, and performance on word knowledge measures, Mr Wells was generally estimated to have been within the Low Average ranges of general intellectual function…’

Regarding the effort to do the tests, Dr Falcon reported that, ‘… Mr Wells performed extremely poorly on various tasks formally assessing motivation and effort on current assessment. He performed to well below expected thresholds indicating that he was not applying himself with adequate and reasonable effort throughout testing. These are research validated measures that are known to be easily performed by patients that have suffered even extremely severe TBI with documented extensive intracranial pathology1. These measures are also known to be unaffected by a variety of other psychological, psychiatric and neurological conditions1. Given this, Mr Wells’ ongoing psychological difficulties cannot explain such poor performances on current testing. Within test indicators were also invalidly performed.

‘Based on these performances, the current assessment cannot be taken as a valid and reliable indicator of Mr Wells’ actual cognitive abilities. These findings reflect suboptimal performances and indicate that he can certainly perform much better than currently demonstrated …’.

He concluded that, ‘…Based on records, and Mr Wells descriptions, it would appear as though he suffered a brief loss of consciousness as a result of the accident. There is no retrograde amnesia, though Glasgow Coma Scale (GCS) scored at 14/15 at the scene. It is however noted that Ambulance officers reported that he was alert and orientated at the scene. It is also noted that he does have reasonable recollection of events at the scene, and that he received narcotic analgesia at the scene for other injuries. Narcotic based pain relief continued in hospital, and in my opinion, likely resulted in ongoing episodes of fluctuations in orientation at times. There were also no other noted behavioural difficulties (e.g. agitation, disinhibition, or frustration control) or general cognitive deficits (e.g. amnesia, repetitive questioning etc) throughout hospital or nursing records typical of someone in a prolonged state of post-traumatic amnesia (PTA), as one would normally expect to see (despite initial abbreviated testing was noted to score 17/18). There was also no evidence on any cerebral imaging studies (CT/MRI) post-accident that supported any intracranial abnormalities.

‘Further, Mr Wells did not report any ongoing common TBI related cognitive deficits on any follow up in the months post-injury, which is when these impairments would be at their worst. A highly complex (life-long) psychological/psychiatric history, including conversion disorder and somatisation disorder is also noted…

‘Considering all the above, it is my opinion that Mr Wells suffered a likely concussion as a result of the subject accident, with no consistent evidence of any definite posttraumatic amnesia…’.

He opined that ‘The current cognitive assessment is not consistent with the level of Mr Wells’ injury, and demonstrates significant symptom exaggeration given well below expectation performances on specific malingering/effort measures. Regardless, there would not be any expected cognitive impairments that would functionally limit his abilities resulting from the severity level of his head injury (and certainly not to the levels that he is currently performing at on cognitive testing). It is difficult to assess any additional exacerbations in psychological or psychiatric domains specifically relating to the subject injury, given the extensive and highly complex pre-injury psychological history including chronic pain, depression, anxiety, stress, PTSD, conversion disorder, somatisation disorder, and noted lifelong difficulties relating to childhood sexual abuse…

‘… I would consider his capacity to work to be the same as it was prior to his injury…’ .

There was also discharge summary of Gosford Hospital and investigations dated November 2022, related to an admission on 12/11/2022 and discharged on 15/11/2022, because of chest pain due to cardiac causes, and were totally unrelated to the subject MVA.

The Panel has reviewed the ‘Barringtons’ report, including the record of interviews with Senior Constable Vanden-Berth (dated 23 January 2020), Larry Poulton (dated 30 January 2020) and the claimant (dated 23 January 2020).

In a ‘Patient Subpoena Export’ dated 13 October 2021, apparently the clinical notes of Bay Village Medical Centre, the earliest medical entry was dated 6/6/2016. Dr Paul Roberts stated that, ‘… previously seeing Tuggerah Medical Centre,,, linked into PTSD – social phobia…. Seen psychologist in hospital. Doesn’t see anyone regularly…. Previously been seen by RNSH. Getting 60% of pain – over body ?Fibromyalgia… Lives with Partner – Melissa …. And their 2 kids – 15-16 years… previously on DSP. Patient then worked – had 3 jobs Bar man, welding and fabrication, and trailer spares. Then job at Lisarow Sara Lee – had accident then and unable to get back to work. Fell down a hole – 12 months ago…PTSD, Chronic pain…Endone,.. Lyrica… Ocycontin…. SSitalopram… Somac…’.

In next entry dated 7/6/2016, Dr Abdul Muthalib Usham stated, ‘… PTSD, back pain, leg pain, lost job and his house, separated from his wife... Seroquel...’.

Then the claimant attended the clinic regularly but might be seen by different doctors, mainly for pain, mental issues, and scripts. It seems that the claimant was also seen by a psychologist and a psychiatrist (Dr Grund).

In an entry dated 13/2/2019, Dr Roberts stated, ‘…Melissa and Nathan have split up couple of months ago. Now living at Mums. Back pain flared and leg pain flared. Difficult living at Mum’s… with NSW health – psychology… weight 109 Kg…’

Then in next entry dated 27/2/2019, Dr Roberts state, ‘Getting visual hallucinations- … birds, dinosaurs…? Partial complex seizures? …Referral for EEG given…’.

In an entry dated 24/9/2019 (approximately 10 days before the subject MVA),

Dr Usham stated, ‘…. Gets hallucinations, aches and pain, has to lie down a lot,,, depression…’

In an entry dated 12/10/2019 (8 days after the subject MVA), Dr Sarah Ashby stated, ‘Involved in MVA… flare of lower back pain, fracture right ankle… seeing fracture clinic next week…’. There was no mention about brain injury symptoms or memory problems.

In an entry dated 23/10/2019 Dr Roberts stated, ‘In car accident 4-5 days. Riding motor bike 40 km/h, Hit head – unconscious. Car pulled out on him. Injury has caused additional back pain and right ankle pain. Also left ankle pain. Rx with Mobic. Has been seen by orthopaedic clinic… Discussed chronic pain issues. Endone tends to sensitize him….’.

Then the claimant consulted Dr Roberts regularly. There was flare up of back pain and PTSD, and later pain in right wrist and foot/ankle. Zyprexa was added. There was problem with motivation, weird dreams and sometimes hallucinations. He was referred to physiotherapist. Diazepam, Temazepam and other antidepressants had been tried.

The claimant was seen by Robyn Winchester, probably a psychologist.

In the last entry of this printout, dated 24/9/2021, Dr Roberts stated, ‘Depressed and in pain. Problems solving issues. Asking for referral to neurologist…letter to Dr Yun Hwang printed… ‘.

In a ‘Discharge Referral notes of RNSH dated 30/1/2015, it was stated Mr Wells was admitted on 8/1/2015 and discharged on 30/1/2015, under the care of orthopaedic surgeon Dr Con Veslli. It was stated that, ‘… 34 year male… fall into manhole while walking along footpath – approx. 80 cm-1metere in depth… ? hit head ?LOC. Unable to move legs post injury. Only right foot went into hole, left leg remained out on the pavement. Immediate pain to lower back and cervical spine. Had to pull his right leg out of the hole with his arm as he felt he had no power to move it. Then lay on the rouadside on his side until the ambulance arrived… Transferred to RNS from Gosford Hospital… Depression – long psych hx – past inpatient treatment at Nepean. Prev IVDU (intravenous drug user) stopped 12 years ago. Smoker. Drinker (Binge drinks 203 times per week) Caasual shift worker at Sara Lee factory. Currently rents room in house with couple- behind in payments at present…’.  On examination, pwer was 0/5 in Right hip, knees, ankle but 4/5 in right toes, nd decreased sensation right lower limb and periannal. He was seen by neurologist and spinal rehab who advised, ‘…. Nil obvious organic cause, ?functional’. ..’. Also seen by mental health team who advised that, ‘neurological deficits likely functional, likely to improve and would benefit from rehab…’.  Also complained right calf pain due a right peroneal vein DVT. He was seen by acute pain team who prescribed MS Contin 30 mgtds, Pregablin 150 mg bd and increased serredol to 60 mg max per day.

In a report dated 28 May 2018, Dr Rebecca Martin, a pain medicine specialist of RNSH reviewed Mr Wells 4 ½ months after the fall because of the complaint of ‘lumbar back pain radiating to the legs and headaches…’. She opined that, ‘…There was no organic explanation… for his neurological status and a presumptive diagnosis of conversion disorder with associated adjustment disorder with depressive features…’. She suggested ADAPT pain management program.

Then in a report dated 23 July 2015, Dr Martin stated that she reviewed Mr Wells on the day with his partner Melissa. His pain was much the same and he presented using a rollator frame that day. The MS Contin had been increased to Targin 40mg BD. He also took Diazepam 5 mg Bd, Pregabin 75 mg bd, Duloxetine 90 mg, Endone 5-10 mg per day, and others.

In a medicolegal report dated 7 December 2021, Dr John Davis, an occupational physician, stated he assessed the claimant on that date at request of claimant’s solicitor. He diagnosed cervical spine injury, aggravation of pre-existing symptoms in lumbar spine, soft tissue injury to the right knee, undisplaced fracture of the right distal fibula, and psychological injury. In another report of the same date, Dr Davis assessed 5% WPI for cervical spine, 3.75% WPI for lumbar spine, and 6%WPI for right ankletotal WPI as 14 %, but the way he apportioned pre-existing impairment for lumbar spine was wrong.

Summary of Other Relevant Documentation

In a PIC certificate dated 7/7/2022, Assessor Ian Cameron stated he assessed the claimant on 1/4/2022. He opined that, ‘… Mr Wells sustained an undisplaced fracture at the right ankle and multiple soft tissue injuries. It is unclear whether he sustained a traumatic brain injury. On balance it is unlikely because he was wearing a helmet, there was a low velocity crash, and there was significant past history of psychiatric illness and somatisation disorder which is likely to influence his presentation immediately after the injury and his status at the time of his assessment for the Personal Injury Commission …’. He reported that, ‘…He scored 17/30 on Mini Mental State Examination, which is not a valid score because at that score, a person could drive safely or live independently in the community…’. He assessed the soft tissue injuries to the Head, Cervical spine, thoracic spine, lumbar spine and fracture right ankle were causally related to the subject accident, but the Musculo-ligamentous injuries to the hip, right arm, left arm and hand, peripheral nerve injury to right and left legs, were causally unrelated to the subject MBA.

He assessed 0% WPI for head-soft tissue injury, cervical spine, thoracic spine, lumbar spine and right ankle, total 0% WPI.

In a PIC certificate dated 3/8/2022, Assessor Doron Samuell, a psychiatrist, stated that she assessed the claimant on 7/7/2022. He observed that, ‘… His narrative was implausibly vague. His difficulty with recall of ordinary autobiographical details was inconsistent with his claimed injuries. He had difficulty answering follow-up questions with experiential detail… His cognitive functioning was abnormal at a clinical level. He could not recall many relevant autobiographical details. It was difficult to know whether his cognitive functioning was genuinely impaired. He described pseudo-hallucinatory and pseudo-delusional phenomena that were highly atypical of true psychosis… He said he last went out to a café with friends a year before his accident…’. He concluded that, ‘Mr Wells suffers from a chronic Posttraumatic Stress Disorder. He was subject to serious, lengthy childhood sexual assaults for which he has required extensive treatment. He has also suffered from chronic Depression, characterised by a protracted depressed mood of clinical significance over a lengthy period. He has a Polysubstance Use Disorder in remission….’

In a report dated 27 July 2022, Dr Marc Russo, a pain specialist, stated that he reviewed the claimant at the request of his GP Dr Brits. He reported that, ‘… Extremely severe for anxiety, depression and stress on the DASS21 …Pain self-efficacy was significantly low (2 SD) on the Pain Self Efficacy Questionnaire … moderate fear of exercise/re-injury to predict disability as being present on the Tampa Kinesiophobia Scale …. severe catastrophising present on the Pain Catastrophising Scale…’. He opined that, ‘… Nathan presents with widespread pain that essentially consists of a mixture of physical deconditioning and central sensitisation. He may, or may not, have a component of post traumatic arthritis of the right ankle…’. He advised antidepressant, Valdoxan, weaning off Diazepam and Panadeine Forte, Cognitive therapy pain program, avoid opioids such as morphine, oxycodone, hydromorphone, fentanyl or methadone.

In a report dated 11 August 2022, Dr Christopher Rikard-Bell, a psychiatrist, stated he examine the claimant on the 11 February 2022 via video conference, as requested by the insurer. He opined that, ‘… Mr Wells most likely suffered an Acute Stress Reaction after the accident… he was suffering from Post-Traumatic Stress Disorder and Major Depression with psychotic like symptoms prior to the accident… there is unlikely to be a diagnosable psychiatric condition attributable to the motor vehicle accident of 4 October 2019 and there was no serious psychiatric or psychological injury that I could determine as causally related to the motor vehicle accident….’

In a medicolegal report dated 2 September 2022, Dr Patrick Morris, a psychiatrist, stated that he assessed the claimant on 31 August 2022 as referred by his solicitor, by video link. He opined that, ‘… Mr Wells has the psychiatric condition of Schizophrenia according to DSM–5 diagnostic criteria. He has numerous psychotic symptoms including auditory and visual hallucinations, paranoid delusions and ideas of reference. He also has negative symptoms of Schizophrenia including poor concentration, emotional blunting and amotivational syndrome. … Mr Well’s psychiatric condition of Schizophrenia is not related to the subject motor accident on 4 October 2019 and from the documentation provided to me was likely present before that motor accident. Mr Wells is acutely psychotic and needs much more intensive psychiatric treatment including involvement from his local community mental health team...’.

6. Conclusions  

Diagnosis and Causation

Head injury/Brain injury and Head-soft tissue injury

It is a complex case for the assessment of Head injury / brain injury, mainly because of pre-existing condition and inadequate efforts in examination. The claimant reported a blackout for about 15 seconds, but there was very brief retrograde amnesia (few seconds) and brief anterograde amnesia (up to few minutes), and with normal brain scan. He was wearing a helmet at the time of accident, which according to hospital notes, was undamaged. The accident was relatively low speed, and there was no fracture in face or skull. All these features suggest no significant traumatic brain injury or mild TBI. On the other hand the GCS was 14 at the scene due a confused speech, probably failure to repeat the time and year. The ED AWPTAS score was 17/18, although not properly recorded in the AWPTAS score sheet, suggesting a mild TBI. However, the slightly reduced AWPTAS score was due to reduced GCS score (14/15) which was due to difficulty in answering the ‘year’. The nursing notes also reported that the claimant had difficultly in the year. The Panel note that the claimant also could not tell the current year and the year of his birthdate correctly when Assessor Wan assessed him (and he did not complete the full mental screening). Assessor Cameron found MMSE 17/30 but the score was invalid, and the Panel agreed with that as that score could only occurred in severe TBI which was not consistent with other clinical features. There the Panel opined that both GCS score of 14 and AWPTAS of 17 (which included GCS score) were probably invalid, as apparently Mr Wells has long term problem with the year. (He can tell the day and month of his birthdate correctly).

Unfortunately, there was no formal full PTA assessment at the time of the accident.

The neuropsychologist report of Dr Alex Falcon is very informative and provides a useful opinion on cognitive assessment. He estimated the previous intellectual function was within low average range, and Mr Wells performed extremely poorly on tasks formally assessing motivation and effort on assessment, therefore the assessment could not be taken as a valid and reliable indicator of his actual cognitive abilities. The suboptimal performance indicates that he can certainly perform much better than currently demonstrated. Dr Falcon opined that Mr Wells might have a concussion in the subject accident but no consistent evidence of any definite post-traumatic amnesia. He concluded that there would not be any expected cognitive impairment from the accident that would functionally limit his abilities, and his capacity to ooowork would be the same as it was prior to the injury.

However, he might have soft tissue injury to the head but that have resolved when he was seen by Assessor Cameron and Assessor Wan.

Although the Panel does not think the claimant had any significant TBI for the reasons mentioned about, technically a slight abnormal GCS and AWPTAS scores with a car vs Motorbike accident, giving the benefit of doubt to the claimant, it could be argued that the pre-requisite criteria of assessment of mental status impairment and emotional and behavioural impairment have been satisfied: ‘ high speed injury’ , and medically verified abnormalities such as abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia.

Then using the CDR method (Table 6.9, Motor Accident Guideline v 9.1), the WPI would be assessed as 0%, as follows:

Memory score will be questionable, as although the claimant complains of memory problem, it is not confirmed by mental status assessment, M=0.5.

He complained difficulty in time and year, but could not be confirmed in mental screening test, Orientation score is questionable, O=0.5 (however it is likely it is a chronic problem)

Judgement and problem solving score is none, as the there is no evidence it has changed after the subject accident, JPS =0

Community affairs score is none, as he apparently functions as usual, CA=0

Home and hobbies score is none, as there is no evidence it has changed significantly, HH=0

Personal care score is none, as he is fully capable of self-care, and most of the other secondary scores are also 0, PC=0.

Since all secondary categories are scored less than M score (primary category), therefore the CDR score = secondary scores =0.

According to Table 6.10, CDR=0 would be assessed as 0% WPI.

The claimant has depressive features. However, it is likely this is pre-existing although it may have been aggravated as a reaction to the accident. There is no evidence that it is secondary to organic brain damage as TBI is mild or none. Therefore, there is no assessable emotional or behaviour impairment.

Even if the Panel assessed using the Emotional and behavioural impairment, using Table 3, p.142, AMA4, it will be assessed as mild limitation, corresponding to 0-14% WPI. Considering the absence of cognitive impairment, it would be assessed as 0% WPI.

Right ankle- fracture and soft tissue injury

The fracture has healed satisfactorily clinically. There were slight restriction movement of the right ankle compared with the left ankle. The best way of assessment is using ROM method, Table 42-44, P.78, AMA4, the WPI as follow:

o   Plantar flexion of 40°, dorsiflexion (extension) 20° - 0% WPI

o   Inversion 25°, eversion 15°- 0% WPI

Therefore, the right ankle impairment is 0%. WPI

Lumbar spine injury

There is no evidence lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence non-verifiable radicular complaint. There are symmetrical restriction in movement of the lumbar spine, but there is no dysmetria.

However, considering the history and complaint, it is possible there was soft tissue injury to lumbar spine, but clinically it has resolved.

Therefore, the Panel assessed the lumbar spine injury as DRE I (0%).

Cervical spine injury

There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

There is also no evidence non-verifiable radicular complaint. There is no muscle spasm, guarding or wasting.

Active movements of cervical spine are normal, and there was no asymmetrical restriction (dysmetria)

However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine, but clinically it has resolved.

Therefore, the Panel assessed the cervical spine is DRE I, corresponding to 0% WPI.

Thoracic spine injury

There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

There is also no evidence non-verifiable radicular complaint. There is no muscle spasm, guarding or wasting.

Active movements of thoracic spine are normal, and there was no asymmetrical restriction (dysmetria)

However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine, but clinically it has resolved.

Therefore, the Panel assessed the cervical spine is DRE I, corresponding to 0% WPI.

Hip - musculo-ligamentous injury

There is no evidence of injury to hip. Active movements of the hips are normal.

Right arm - musculo-ligamentous injury

There is no evidence of injury to right arm. It was not mentioned in the Ambulance report, ED notes or hospital notes.

Active movements of the shoulders and elbows are normal.

Left arm - musculo-ligamentous injury

There is no evidence of injury to left arm. It was not mentioned in the Ambulance report, ED notes or hospital notes.

Active movements of the shoulders and elbows are normal.

Right leg – peripheral nerve injury

There is no evidence of injury to the right leg. It was not mentioned in the Ambulance report, ED notes or hospital notes.

Active movements of the shoulders and elbows are normal.

Left leg – peripheral nerve injury

There is no evidence of injury to the left leg. It was not mentioned in the Ambulance report, ED notes or hospital notes.

Active movements of the shoulders and elbows are normal.

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing or subsequent causes	%WPI* due to motor accident
Head / brain injury	Sectioins 6.160- 6.170, MAG ver 8.2	yes	0	0	0
Cervical spine	Table 73, page 110, AMA4	Yes	0	0	0
Lumbar spine	Table 72, page 110, AMA4	Yes	0	0	0
Thoracic spine	Table 74, page 111, AMA4	Yes	0	0	0
Right ankle – fracture	Table 42-44, P.78, AMA4	Yes	0	0	0

Total WPI = 0%

Summary of Injuries Listed by the Parties and Caused by the Accident

The following injuries WERE caused by the motor accident:

·     Head- closed head injury, soft tissue injury

·     Cervical spine – soft tissue injury

·     lumbar spine – soft tissue injury

·     Thoracic spine – soft tissue injury

·     right ankle – fracture and soft tissue injury

Summary of Injuries Listed by the Parties and Not Caused by the Accident

The following injuries WERE NOT caused by the motor accident:

·     Hip - musculo-ligamentous injury

·     Left arm - musculo-ligamentous injury

·     Right leg – peripheral nerve injury

·     Left leg – peripheral nerve injury

Pre-existing / subsequent impairment

The claimant has significant injuries in pre-existing accident. However, since the current WPI is 0% therefore there is no need for pre-existing injury apportionment.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[63] The Panel adopts the examination findings of Medical Assessor Wan subject to and adding the following reasons.

   [63] Section 7.26(6) of the Act.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion:  Insurance Australia Group Ltd v Keen[64]  and Insurance Australia Ltd v Marsh.[65]

   [64] [2021] NSWCA 287 at [40], [41] and [45].

   [65] [2022] NSWCA 31 at [11], [21], [64].

Head injury

1. It is unclear what “Guidelines” the claimant referenced in his submissions on the definition of mild traumatic brain injury.

2. The paragraphs referenced by the claimant in his submissions appear in the State Insurance Regulatory Authority paper on the “Neuropsychological assessment of children and adults with traumatic brain injury”. The relevant portion is set out in full.

   “Mild traumatic brain injury

   The operational definition of mild TBI (Carroll et al, 2004) is defined by the World Health Organisation (WHO) Collaborating Centre for Neurotrauma Task Force on Mild TBI as follows:

   'Mild TBI is an acute brain injury resulting from mechanical energy to the head from external physical forces. Operational criteria for clinical identification include:

   One or more of the following: confusion or disorientation, loss of consciousness for 30 minutes or less, post- traumatic amnesia for less than 24 hours, and/or other transient neurological abnormalities such as focal signs, seizure, and intracranial lesion not requiring surgery;

   Glasgow Coma Scale score of 13–15 after 30 minutes post-injury or later upon presentation for healthcare.

   These manifestations of mild TBI must not be due to drugs, alcohol, medications, caused by other injuries or treatment for other injuries (eg systemic injuries, facial injuries or intubation), caused by other problems (eg psychological trauma, language barrier or coexisting medical conditions) or caused by penetrating craniocerebral injury.'

   Most mild TBIs are not characterised by gross structural brain changes (Giza & Hovda, 2004). Axons are stretched or twisted without being sheared or torn, and most axons recover over time (Iverson, 2005). Cellular and vascular mechanisms such as ionic shifts, abnormal energy metabolism, diminished cerebral blood flow and impaired neurotransmission have been implicated in the acute cognitive and behavioural symptoms reported following a mild TBI (Barkhoudarian et al., 2011; Giza & Hovda, 2004).

   It is important to differentiate between individuals with uncomplicated mild TBI and those with a complicated mild TBI. A complicated mild TBI has been defined as meeting diagnostic criteria for mild TBI, with a trauma related abnormality – eg contusion that does not require surgery, present on the day-of-injury brain CT scan (Carroll et al, 2004). In individuals with mild complicated TBI neuropsychological performance in the early days and weeks after injury may be poorer, and longer-term cognitive outcome may be worse (Iverson, 2005) than for individuals with uncomplicated mild TBI.”

3. The insurer repeated in its submissions that the MRI scan showed no objective signs of brain injury. That submission, in the absence of medical evidence, is inconsistent with the above passage.

4. However, neuropsychological testing was undertaken on behalf of the claimant by Dr Falcon. That opinion which we accept accords with the findings made by Medical Assessor Wan. The claimant’s results on testing accord with being severely brain damaged which is unlikely considering the history, the nature of the motor accident, his current condition, and the clinical observations of Medical Assessor Wan.

5. For the detailed reasons provided by the Medical Assessor, the impairment due to the closed head injury is assessed at 0%.

6. We note that there is reference to right arm injury in the clinical records following the accident. Despite the absence of early complaint to the emergency personnel, it is plausible that the motor accident caused a soft tissue injury to the right arm, particularly the wrist when the claimant fell to the ground. The claimant’s right arm problems, probably soft tissue in nature, are referenced in subsequent clinical notes of the GP.

7. The recent examination findings show that there was no assessable impairment of any part of the right arm.

8. Medical Assessor Wan has detailed his examination findings concerning the other body parts. For the reasons provided, these body parts have no assessable impairment.

CONCLUSIONS

1. The medical assessment certificate is confirmed.