When will a medical assessor accept causation in whole person impairment disputes? Gray v Allianz Australia Insurance Limited [2023] NSWPICMP 481

In Brief

• The medical assessors must determine the degree of the Claimant’s permanent impairment occurring as a result of the injury caused by the motor vehicle accident.
• The test of causation is whether the motor vehicle accident caused or contributed to the Claimant’s condition.

Facts

Pursuant to section 131 of the Motor Accidents Compensation Act (NSW), a Claimant is only entitled to damages for non-economic loss where the permanent impairment is greater than 10% and results from an injury caused by a motor vehicle accident.

In Gray v Allianz Australia Insurance Limited [2023] NSWPICMP 481, the Motor Accident Permanent Impairment Guidelines apply because the motor accident occurred between 5 October 1999 and 30 November 2017.

The Personal Injury Commission was required to assess whether the Claimant’s alleged injuries were caused by the accident and whether the Claimant’s permanent impairment is greater than 10%.

At first instance, the Medical Assessor determined that none of the injuries referred for assessment were related to the accident because:

• The Claimant did not report any injury to his hips, shoulders or arms.
• The Claimant advised he had referred pain to his left shoulder from his cervical spine.
• The Claimant reported that he had continued to experience intermittent neck discomfort – but at the time of the assessment the Claimant had not experienced any neck discomfort.
• The Claimant reported he did not know whether his back pain was related to the motor vehicle accident, as his back symptoms had not occurred until several years after the accident.
• There was a break in the chain of causation because there were no contemporaneous records demonstrating ongoing complaints.

As none of the injuries were related to the accident, the Medical Assessor was not required to assess the Claimant’s whole person impairment.

The Claimant successfully applied for the dispute to be referred to the Medical Review Panel.

Review Panel Reasons

The medical members of the Review Panel found that:

• From July 2004 until mid-2018, neither the medical or radiological evidence, nor the medical reports demonstrated evidence of radiculopathy in the cervical spine. The first documented reference to cervical spine and left arm tingling occurred in May 2018, at least 11 years after the Claimant initially received treatment for the accident. The cervical spine symptoms which later required a fusion were not caused by the subject accident.
• The medical evidence demonstrated that the Claimant had injured himself using an abdominal strengthening device in October 2012 and continued to complain of both lower back pain and right foot numbness (as well as tingling) which had persisted since 2012. The lumbar spine symptoms which arose in 2012 required lumbar fusion surgery in 2015, which was not caused by the subject accident.

The Review Panel concluded that:

• The Claimant had sustained a soft tissue injury to the cervical spine, thoracic spine and lumbar spine, which resolved approximately 12 months after the subject accident.
• The Claimant may have sustained a soft tissue injury to his both arms and both shoulders at the time of the subject accident, but any of these injuries had resolved.
• The Claimant had not sustained injuries to either of his hips or lower limbs as a result of the subject accident.

Key Learnings

This decision reminds us that in order for causation to be accepted by a medical assessor in whole person impairment disputes, there must be contemporaneous evidence of consistent and similar complaints from the time of the accident until the time of the assessment.

If there is a break in causation in the medical evidence, the medical assessor may not accept that the injury was caused by the subject accident.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.