Written by Peter CarterJuly 29, 2017
A week after the July 2015 motor accident in Padstow Road, Eight Mile Plains, Jay Thuong saw his GP for treatment of the gradual onset of neck and shoulder pain.
Thirty-four sessions of physiotherapy followed and took painkillers to deal with headaches, nausea, pain and reduced range of motion in his neck all of which featured in the medical records.
He had in fact returned to casual work at BWS liquor store in Richlands just 4 days after the accident for much the same number of hours that he had previously done, prompting the insurer to contend the facts could not sustain any income loss claim.
In reality, Jay was – after the accident – selective in his shifts, avoiding those on days with incoming stock arrivals so as not to be required to perform repetitive lifting of more than 200 liquor cartons on each occasion.
Allianz’s suspicions were further provoked by his supervisor’s questionnaire responses indicating Jay had returned to “full duties” and was working satisfactorily.
In the witness box, the supervisor Steve Wilmott explained he knew the plaintiff from high school and later employed him at BWS. Jay reported his accident to him as he did the pain in his lower back and neck – requesting not to be rostered for heavy duty days where possible.
Disappointed with that turn in the testimony, the insurer pressed Wilmott who explained he gave a “satisfactory” description because Jay was adequately performing the less arduous jobs assigned, not the jobs that he had previously been able to do prior to the accident.
Unaware whether BWS had any formal modified duties scheme, Wilmott had changed the roster to accommodate Jay’s reduced capacity to work on heavy delivery days.
Allianz’s assault on that front firmly rejected, the insurer then launched an attack on neurosurgeon Scott Campbell and orthopaedist Malcolm Wallace for their failure to painstakingly follow every recommendation in the AMA guides relating to their medico-legal assessments.
District Court judge David Searles was unimpressed by their colleague surgeon Prue Fitzpatrick who attacked the pair for failing to use an inclinometer and failing to mandate warmup exercises prior to their clinical examinations of the claimant.
Fitzpatrick agreed the device is not used in clinical practice and that experienced practitioners can assess range of motion impairments without an inclinometer. She insisted though, its use was valuable for standardising motion impairment assessments and ranges from one practitioner to the next.
“A complete waste of time,” was how Campbell considered the device “because it cannot measure anything in the spine.” He also observed that the author of that section of the AMA guides was not a spinal surgeon.
Drs Campbell and Wallace also considered the recommendation that assessment candidates be required to perform repetitions of extension, flexion, lateral venting and rotational exercise would probably make patients worse than better by the time they leave the examination.
They found that a decreased range of movement of 20% to 30% in all directions.
They also allowed an uplift in the ISV by application of chapter 18 “by default”, because no other section of the AMA guides was applicable to cover the patient’s additional deficits.
Judge Searles noted schedule 3 of the Civil Liability Regulation section 12, requires a court to “give greater weight to a medical assessment of whole person impairment specifically based on the criteria for the assessment of whole person impairment provided under AMA 5 than to a medical assessment not based on that criteria”.
Ruling against Allianz’s criticism launched at the pair in respect of the method of assessment, he concluded: “their assessments were substantially in compliance with the criteria set out in the AMA guides”.
Damages were assessed at $128k including $100k for impairment of earning capacity in the future as submitted for by the plaintiff.