AAI Limited t/as AAMI v Barkho

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Barkho [2024] NSWPICMP 759
CLAIMANT:	Violet Dawood Barkho
INSURER:	AAI Limited trading as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Rhys Gray
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	6 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 25 April 2022; Medical Assessor Home determined the claimant’s permanent impairment at 11%; the Medical Review Panel (Panel) conducted its own examination and considered the claimant’s pre-existing impairment; the Panel confirmed the injuries caused by the accident gave rise to a 7% whole person impairment; the certificate of Medical Assessor Home was revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 20 February 2024 and substitutes the determination to certify that the injuries caused by the accident gave rise to whole person impairment of 7%.

STATEMENT OF REASONS

INTRODUCTION

Violet Dawood Barkho (Ms Barkho), the claimant, was born in 1963.
On 25 April 2022, Ms Barkho was injured in a motor vehicle accident (the accident).
Ms Barkho has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited ABN 48 005 297 807 trading as AAMI (AAMI) is the relevant insurer.
A medical dispute about the degree of Ms Barkho’s whole person impairment (WPI) and treatment has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and assigned to Medical Assessor Alan Home for assessment.
On 20 February 2024, Medical Assessor Home issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

AAMI sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.
The Review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
In the directions of 17 May 2024, the Panel informed the parties that it considered a re-examination of Ms Barkho was required. Arrangements were made for Ms Barkho to be re-examined by Medical Assessor Gray.

LEGISLATIVE FRAMEWORK

General provisions

15.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

Ms Barkho’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Alan Home examined Ms Barkho on 14 February 2024 and issued a certificate under s 7.23 of the MAI Act.
The following injuries were referred by the Commission for assessment:
(a)    left shoulder: STI, tendon tears, referred pain from left shoulder; 3mm bursal surface partial tear involving the anterior fibres of the supraspinatus tendon of the left shoulder; 4mm articular surface tear to subscapularis with associated tendinopathy to the left shoulder;
(b)    cervical spine/neck: STI, referred pain to left shoulder/cervical radiculopathy/moderate spondylitic changes at C5/6 and C6/7 with central disc herniation at C5/6 and C6/7 compressing the thecal sac and the canal in the midline/multilevel cervical spondylosis/severe bilateral C3/4 foraminal stenosis with compression on the C4 nerve roots/discovertebral degenerative arthritis at C3/4 and C6/7 minor foraminal stenosis on the right with irritation on the right C6 nerve;
(c)    thoracic spine: central disc protrusion at T5/6 and T7/8 indenting the thecal sac anteriorly/discovertebral degenerative arthritis at T8/9 soft tissue injury;
(d)    lumbar spine: STI multilevel lumbar spondylosis with nerve root irritation/radiculopathy L5/S1 disc protrusion with compression of the S1 nerve root/canal stenosis at L1/2 and L5/S1 with bilateral L4/5 lateral recess stenosis with compression on both L5 nerve roots;
(e)    chest: STI rib fractures to left 5th and 6th ribs anteriorly, and
(f)    left arm: soft tissue Injury; Referred pain from cervical spine and neurological symptoms.
Medical Assessor Home took note of Ms Barkho’s past history at [7]:
“Ms Barkho confirms a past history of chronic low back pain associated with referred pain to the left leg prior to the subject accident. She confirms previous surgery under the care of Dr Sheridan in 2007 and 2008. She attended Dr Darwish in 2010 and was offered a third operation, which she declined. She confirmed that she received a Disability Pension as a consequence of her back condition.
To enquiry, she confirms pre-accident symptoms of low back pain of an intensity of 5 out of 10. Prior to the accident she was also experiencing intermittent radiation of pain to the left leg.
She recalls constant numbness in the last two toes of her left foot before the subject accident. These symptoms have persisted since the previous operation.
She recalls occasional neck pain prior to the subject accident.”
Medical Assessor Home took a history of the accident at [8] and noted Ms Barkho’s “current symptoms” at [9].
He completed a clinical examination, the findings set out in paragraph [11] of his Certificate.
Medical Assessor Home made the following determination on “diagnosis, causation and reasons”:
“The claimant, Violet Barkho was involved in a motor vehicle accident in which she was a front-seat passenger in a car struck on the passenger side by a car travelling from the left through an intersection. There is early documentation of neck, left chest wall pain and low back pain in the hospital Discharge Summary and the general practitioner’s notes. There is documentation the claimant suffered an aggravation of pre-existing chronic low back pain with development of new symptoms in the neck, left shoulder, midback and chest. There is no separate discrete injury to the left arm. Referred symptoms extending to the left arm have been considered as part of the neck condition. I have considered causation in accordance with Section 6.6 and 6.7 of the SIRA Guidelines. I am satisfied that the motor vehicle accident has caused the injuries diagnosed.”
He concluded that the following injuries were caused by the accident:
(a)    chest: left-sided fractures to the 5th and 6th ribs – healed;
(b)    cervical spine: soft tissue injury; underlying degenerative change. Restricted shoulder motion due to the neck complaint (Nguyen case principle);
(c)    lumbar spine: soft tissue injury; temporary exacerbation of chronic low back condition, and
(d)    thoracic spine: soft tissue injury; underlying degenerative change.
He determined that the following injuries were not caused by the accident:
(a) left arm: there is no separate injury to the left arm.
He further determined that the degree of permanent impairment caused by the accident was 11%.

SUBMISSIONS
AAMI’s decisions dated 4 March 2024

The Panel summarises AAMI’s submissions by reference to paragraph number:
[1.2] It was submitted that Medical Assessor Home erred on interrelated grounds, as follows:
(a)    the Medical Assessor’s determinations as to causation and pre-existing impairment in the cervical spine and shoulders were erroneous and/or inaccurate and inconsistent with the material before him;
(b)    the Medical Assessor failed to consider relevant evidence that was before him in determining causation and pre-existing impairment in the cervical spine and shoulders;
(c)    the Medical Assessor failed to provide adequate reasons or outline with sufficient clarity his finding that the injuries to Ms Barkho’s impairment in the cervical spine and shoulders was caused by the motor accident and that there was no pre-existing impairment;
(d)    the Medical Assessor failed to afford AAMI procedural fairness by failing to consider arguments put to him as to causation of injury and pre-existing impairment, and
(e)    the Medical Assessor failed to apply the Guidelines in respect of his findings on causation and pre-existing impairment.
[1.3] AAMI submits that the minor injury dispute ought to be referred to the Review Panel.
Part A: Causation and pre-existing impairment
[1.4] The relevant portion of Medical Assessor Home’s Certificate which made a determination on causation reads as follows (paragraph 15, pg. 9):
“The claimant, Violet Barkho was involved in a motor vehicle accident in which she was a front-seat passenger in a car struck on the passenger side by a car travelling from the left through an intersection. There is early documentation of neck, left chest wall pain and low back pain in the hospital discharge summary and the general practitioner’s notes. There is documentation the claimant suffered an aggravation of pre-existing chronic low back pain with development of new symptoms in the neck, left shoulder, midback and chest. There is no separate discrete injury to the left arm. Referred symptoms extending to the left arm have been considered as part of the neck condition. I have considered causation in accordance with Section 6.6 and 6.7 of the SIRA Guidelines. I am satisfied that the motor vehicle accident has caused the injuries diagnosed.”
[1.5] The Medical Assessor recorded the following relevant history given by Ms Barkho as to pre-existing issues (para 7, pg. 4):
“She recalls occasional neck pain prior to the subject accident”.
[1.6] Notably, Ms Barkho made no reference to the symptoms in her shoulders and radiating down the arms.
[1.7] AAMI referred to its reply submissions dated 23 August 2023 which raised various issues with respect to causation to be considered by the Medical Assessor, including (inter alia) the following:
(a)    In April and May 2018 Ms Barkho reported to Dr Teychenne, neurologist that she had pain in the neck and across the shoulders for the past three to four years which also radiated down both arms – though the treating evidence disclosed that Ms Barkho had reported all of these symptoms to Dr Teychenne some five years prior;
(b)    This same history was also reported to Mr Wong, physiotherapist in October 2018, and in June 2019 Mr Wong also took a history of discomfort in both shoulders;
(c)    An MRI undertaken of the whole of the spine in June 2018 disclosed extensive pathology and degeneration at all levels of the spine;
(d)    In February 2020 Ms Barkho reported to Dr Shafransky, cardiologist that she had experienced “discomfort in neck which radiates to her left arm” and presented to Fairfield Hospital. Dr Shafransky confirmed that he was of the view that her symptoms were “neurological”;
(e)    There is insufficient evidence for the Medical Assessor to conclude that Ms Barkho sustained tendon tears to the left shoulder in the motor accident. Dr Sundaraj, orthopaedic surgeon considered in his October 2022 that the ultrasound was “unreliable” and was “unlikely” to disclose the cause of her left neck and shoulder symptoms.
[1.8] There was no attempt made by Medical Assessor Home to address any of these causation or pre-existing impairment issues at all. Moreover, he did not question Ms Barkho as to her history given on examination as to pre-accident issues, which was entirely inconsistent with the treating evidence. This was a failure to afford procedural fairness to AAMI and gives rise to material errors.
[1.9] Regarding the cervical spine and shoulders, as submitted by AAMI, there was clear evidence before Medical Assessor Home that Ms Barkho had an extensive history of complaints in the neck and both shoulders commencing in at least 2013. The material suggests those complaints were ongoing, neurological in nature, and significant enough for the claimant to have attended Hospital. In his Certificate, Medical Assessor Home makes no reference at all to the documents outlined above.
[1.10] AAMI submitted that Medical Assessor Home’s failure to address these critical causation and pre-existing impairment issues at all in his Certificate gave rise to material errors in several respects as outlined above. Further, it was evident from the Certificate that Medical Assessor Home gave no consideration to AAMI’s submissions that there was evidence that Ms Barkho’s cervical spine and shoulder complaints were pre-existing. This was clearly an issue that should have been dealt with by the Medical Assessor as it was a finding squarely open to him to make.
[1.11] The failure to give any consideration to same – which is consistent with the approach set out by the Guidelines in considering causation – or even to outline whether there was any consideration given to same in the Medical Assessor’s reasons, again gave rise to material errors as outlined 2 above.

Ms Barkho’s submissions dated 25 March 2024

Part A: Failed to consider relevant evidence that was before him in determining causation and pre-existing impairment in the cervical spine and shoulders

AAMI’s submission that "Medical Assessor Home makes no reference at all to the documents outlined above”, was incorrect.
It was noted that on Page 3, Paragraph 4 and 5 of his Certificate, Medical Assessor Alan Home has outlined the material before him which he had considered:
"SUMMARY OF DOCUMENTS CONSIDERED
4. Documents
I have considered the documents provided in the application and reply
5. Additional late documents
Any additional/late documents have been considered ... "
Ms Barkho submitted that the reason for Medical Assessor Home outlining the
above was to make one aware that he had read and noted them in reaching his conclusion.
Medical Assessor Home has provided a detailed Certificate consisting of some 12 pages.
Consequently, it was submitted that Medical Assessor Home had considered all the evidence, which was before him, for this assessment.

Part B: Failed to provide adequate reasons his finding that the injuries to Ms Barkho's impairment in the cervical spine and shoulders was caused by the motor accident and that there was no pre-existing impairment

Ms Barkho submitted that Medical Assessor Home did consider her pre-existing impairment issues during the examination.
Furthermore, Medical Assessor Home also provided a full deduction for pre-existing impairment to Ms Barkho's lower back injury. Again, evidence that Medical Assessor Home did consider pre-existing impairment.
The fact that Medical Assessor Home stated "new symptoms in the neck and left shoulder" would indicate that these symptoms were different to any injuries that Ms Barkho had suffered prior to the accident.
Medical Assessor Home discounted the entire impairment which related to Ms Barkho's lower back due to her pre-existing condition.

It was submitted that if there was any pre-exiting impairment to Ms Barkho's neck and shoulders, then Medical Assessor Home would have taken that into account.
Consequently, Medical Assessor Home did provide adequate reasons for his finding that the injuries to Ms Barkho's impairment in the cervical spine and shoulders was caused by the motor accident and that there was no pre-existing impairment.

Part C: Failed to afford AAMI procedural fairness by failing to consider arguments put to him as to causation of injury and pre-existing impairment

It was submitted that the reason for Medical Assessor Home outlining AAMI’s submissions, was to make one aware that he has read and noted them in reaching his conclusion.
Consequently, Medical Assessor Home had not failed to afford AAMI procedural fairness by failing to consider arguments put to him as to causation of injury and pre-existing impairment.

Part D: Failed to apply Guidelines in respect of his findings on causation and pre-existing impairment

Ms Barkho referred to paragraph 9 and pages 10 and 11 of Medical Assessor Home’s Certificate and submitted that Medical Assessor Home has a sound knowledge of the Guidelines and had applied the guidelines in his assessment of Ms Barkho's WPI.

DOCUMENTS FOR CONSIDERATION
Dr Paul Teychenne, neurologist – pre-accident history

On 3 October 2013, Dr Teychenne reviewed Ms Barkho and reported:
“Mrs Barko over the past six months has noted numbness in the whole of the left and right hand more marked in the left hand associated with pain extending up the ventral aspect of the left and right lower arm. The episodes of pain and numbness will last from ten minutes to thirty minutes. She wakes up every morning with numbness and pain within the left and right hand and lower arms. She wakes up every night at least two to three times per night with the numbness in the whole of both hands associated with the pain up the left and right lower arm. She has noted some weakness in the left grip and left pinch. EMG muscle sampling within the left and right supraspinatus muscle and left and right deltoid muscles
indicated a normal recruitment pattern. She had a moderate decrease in recruitment pattern within the right and left APB muscle. I did not find marked evidence of a compressive neuropathy on EMG muscle sampling. Her history is consistent with a bilateral carpal tunnel syndrome.
I will do some EMG muscle sampling within the distal muscles of the upper limb looking for evidence of ulnar nerve compression.”
On 20 April 2018, Dr Teychenne wrote:
“Ms Barkho notes pain extending from the left and right mastoid region behind the left and right ear into the anterior aspect of the left and right neck extending down the lateral port of the neck and then around anteriorly as well as extending down the left and right lower jaw, to the left and right third division of the trigeminal nerve supply. The pain extends down the dorsal left and right arm into all fingers extending across the left and right suprascapular region.
She describes constant pain down the left arm and episodic pain down the right arm. The pain down the right arm occurs about twice a week lasting two to three hours. He states the pain extends down the dorsal aspect or the arms into all fingers. He also notes pain down the central vertebral column from around T10 down to L5 extending across the tell and right lower posterior chest and lower left and right loin into the lateral aspect of the left and right bullock and down the lateral aspect: of the left and right leg into the dorsal aspect of the left and right foot.
He notes numbness within the sole of the left and right loot and cramps in the left coif with numbness down the lateral aspect of the left lower leg into the dorsal and lateral aspect of the left fool extending into the left third to fifth toes. On the right side the pain extends into the sole of the right foot.
She describes a dull pain over the central lower vertebral column down the legs at intensity 7-8/10. She wakes up with the-headache waking up every morning with the headache which can lost two to three hours. The headache consists of pain extending from the left and right paracervical region over the top of 1he head to the left and right forehead.”

ED Discharge Referral, Liverpool Health Service, dated 25 April 2022

Ms Barkho was taken to Liverpool Hospital by ambulance. The following visit summary was provided:
“Front seat passenger in MVA
…
CT brain/ c-spine/ chest/ abdomen all normal
Xray L shoulder nad
…
IMP – soft tissue injury only
DC home on regular paracetamol, Endone 5mg 4hrly prn, script for 10 tablets only
…
Restrained front passenger in MVA

Driving approx. 50km/hr through a round about
A car entered the round about from the left and t-boned the car
…
No airbags deployed
Unable to self extricate – door had to be cut open on scene
Has not ambulated since
Pain in lower/ L neck
Some numbness in L hand (long standing)
L shoulder
Nil head strike, has a headache
Pain in L anterior/ lateral chest – worse on deep inspiration”

Personal Injury Claim Form dated 3 June 2022

In the Personal Injury Claim form, Ms Barko said she sustained injuries to her neck, left shoulder, chest, mid back, lower back and left arm.
When asked whether she was suffering an illness or injury at the time of the accident, she reported:
“On 20 February 2006 I sustained injury to my lower back whilst in the employ of Bexley Press Pty Ltd. For this injury I was treated by my family doctors... At the time of the accident, I was suffering from occasional pain to my lower back.”

Report of Dr David Crocker, dated 16 January 2024

Dr Crocker made the following diagnosis:
“With respect to the region of the cervical spine, multilevel degenerative changes/spondylosis
have been reported upon radiological investigation. This is particularly evident to the region of the lower cervical spine with potential for nerve root irritation/impingement. It is considered that Ms Barkho has suffered an aggravation of this previously asymptomatic condition as a consequence of the subject motor vehicle accident.
It is evident that there is somatic referred pain from the region of the cervical spine to both shoulder girdles/left upper arm as a consequence of the cervical spine condition.
With respect to the region of the left shoulder girdle, referred pain from the cervical spine is contributory to her complaints to this region. I have noted that an MRI examination has been undertaken pertaining to this region with tendinosis being reported pertaining to the supraspinatus tendon. Nil rotator cuff tears have been reported. It is considered that Ms Barkho's complaints referable to the left shoulder girdle is contributed to by a supraspinatus tendonitis arising from the subject motor vehicle accident.
I have noted that bone scan examination had demonstrated the presence of left-sided 5th and 6th rib fractures. She reports residual discomfort to this region.
With respect to the region of the lumbar spine, it is evident that a previous work-related injury was sustained in 2006. She subsequently underwent multiple surgeries to this region.
It is apparent that CT scan examination was attended of the lumbar spine on 25.5.22.
Multilevel degenerative changes/spondylosis have been reported with potential compromise of exiting nerve roots at lower lumbar spinous levels. Similar changes have been reported on MRI examinations that followed the earlier workplace Injury.
It is considered that Ms Barkho has suffered an aggravation of these pre-existing changes as a consequence of the subject motor vehicle accident. Her pre-existing complaints have been reported as becoming more prominent following this incident.
Based upon the medical documentation and earlier radiological findings, it is likely that a left sided lumbar radiculopathy had been present. The current clinical presentation is also indicative of a likely residual radiculopathy with similar clinical and radiological features.
It is considered that there have been negative psychological impacts upon Ms Barkho as a consequence of the subject motor vehicle accident, however, conditions of this type are outside my particular expertise and, therefore, I will not expand upon this.”

Report of Dr Chris Harrington, orthopaedic surgeon

In his report of 31 May 2023, Dr Harrington documented complaints of neck, back and left shoulder pain. Dr Harrington opined a DRE Category II, a 5% WPI for the left shoulder and a 4% WPI. He opined the aggravation of the lumbar spine had resolved and was not causing additional impairment from the subject accident. Although there was a finding of restricted right shoulder motion due to neck pain, this was not further considered.

Dr Wilian Menashi, general practitioner

Dr Menashi, reviewed Ms Barkho on 27 April 2022 and reported:
“was involved in MVA
25/4
In round about
Front passenger seat
Wearing seat belt
Was taken to LDH
X rays and brain CT scans nad
No acute fracture or bleedings
In pain
Distressed
Anxious
Car severely damaged her side
Pain and tenderness
Left kneck
Left arm
And lower left ribs
Chest clear
Hs dual
Advised endone one daily pm”

Report of Dr Keran Sundaraj, orthopaedic surgeon, dated 7 October 2022

Dr Sundaraj wrote the following report:
“…Violet was involved in a motor vehicle accident on 24 April 2022. She was the passenger when a side impact occurred. She was admitted to Liverpool Hospital overnight for a tertiary survey. There were no radiographic limb injuries found at the time.
Violet has ongoing left shoulder pain that states in her neck and radiates over the anterior aspect into the lateral elbow. She also complains of numbness in all digits. In addition, she had difficulty with vacuuming and lifting heavy objects.
…
Impression
It would appear that Violet’s left shoulder pathology is likely arising from her neck or c-spine. However, I will leave this to Dr Shiva to further diagnose. The findings of the left ultrasound are unlikely to be the cause of her left neck/ shoulder symptoms.”

THE PANEL’S EXAMINATION

Ms Barkho was re-examined at the Commission’s rooms on Wednesday 2 October 2024 by Medical Assessor Gray.
An Arabic interpreter, Claudia El Brihi (59150) was present throughout the assessment, and it was confirmed that the interpreter and Ms Barkho understood each other readily.
Ms Barkho was 61 years of age, born in Iraq and had migrated to Australia in 2004 under a spouse’s visa. She now had full citizenship.
Ms Barkho was married and lived with her husband. They had no children. Her husband was on the aged pension.
Ms Barkho was not working, having been on a disability pension long term, subsequent to low back surgeries in 2007 and 2008 in Liverpool Hospital. She said that she had a back injury at work in 2006, which caused pain in the low back and radiation of pain into the left leg with numbness.
She described further surgery for gynaecological reasons in 2010/2011, with no other history of surgery.
Ms Barkho acknowledged that her general health was compromised by diabetes, hypertension and hypercholesterolaemia, plus recurrent infection of the gums. She said that she had taken Palexia PRN ever since the original back surgery.
On reviewing her lumbar symptoms in 2006/2007, Ms Barkho said that she had experienced back pain with significant left leg pain and numbness. After the surgery she said the pain aspect had improved and she was then able to walk, having been severely limited before surgery.
Post-surgery, she recalled that the left leg pain had improved but she had continued to have constant numbness, particularly in the lesser toes on the left side. She acknowledged that this pattern of constant left toe numbness had continued from 2008 until now.
She said there had been no other workers compensation claims apart from the 2006 incident, and no other injury in a motor accident apart from April 2022.

History of the motor accident

Ms Barkho said that she was involved in a motor accident on 25 April 2022, being the front seat-belted passenger with her husband driving, on their way to church. They were travelling straight through a roundabout on Smart St. Fairfield, when a car coming into the roundabout from the left side, initially hit their passenger door, that spun their vehicle and then apparently secondarily hit the left rear panel of their vehicle.
She recalled that the passenger door was pushed in and had impacted the left side of her body, including the left shoulder, the left side of the neck and the left side of the pelvic area. She recalled a big noise and being thrown forward and back, saying she immediately felt that the whole of the left side of her body was affected. She was unable to recall whether there was any other injury apart from the left side.
Ms Barkho said that when she, “came to” she felt the left side of her head and the left shoulder were affected and she recalled difficulty breathing because of pain in the left of her chest. Her door was not able to be opened, so Fire Rescue cut through the door to allow her to exit the vehicle. The police and ambulance were present, and she was taken by ambulance to Liverpool Hospital.
When at hospital she remembered it was, “the whole of my left side” which was affected. She said she can still recall the sound of the impact in her head.
Ms Barkho said there was no obvious injury to the right side of her body. She recalled staying in hospital overnight and then being able to walk out of hospital the next day.
She said that with time, the whole left side of her body was sore, without being able to localise specifically, apart from the left side of her chest. The next day and she said attended Dr Menashi GP (and her own GP after a few days). X-rays and scans were completed and finally a referral to Dr Sheridan, neurosurgeon was organised, but apparently Dr Shiva was available to assess her earlier.
Ms Barkho said MRIs and a bone scan were completed and the issues of back surgery and injections/physiotherapy were raised, with no subsequent surgery having been undertaken. She said initially she was not keen to have any injections, particularly as she had a marked flaring of symptoms after a trial of injections in 2007/2008.
Ms Barkho said that she was using the right arm too much and that she had the onset of right shoulder pain at a later date, that she thought was either from her neck or from overuse.
Before the accident, she had been on a disability pension long term. She said that she had completed a formal pain management program apparently under Dr Solomon about 10 years before the motor accident, with continuing medications for, “pain management”. Subsequently, before the accident, she had continued a home exercise program and medications, plus physiotherapy under Medicare five times per year, particularly when her back was sore. She attributed disc problems in her low back causing back pain if she overdid things or walked too much. She said the back pain varied but the numbness in the left foot had been constant since before the original operation in 2007.
In summary, Ms Barkho said that the low back pain, before the motor accident, came on if she did too much activity, and the left leg pain if she walked too much. She constantly had numbness in the two lesser toes on the left.
After the accident, she said she had a feeling of numbness in, “all the toes” on the left.
With regard to her neck, Ms Barkho said she had had physiotherapy and scans. She had been referred by Dr Shiva to see Dr Sunderaj, orthopaedic surgeon who assessed her left shoulder and also advised of two rib fractures on the left from the accident. Dr Sunderaj advised continuing physiotherapy and medication. She was advised to return for review if the situation deteriorated.
She was also referred to Dr Darwish, neurosurgeon and she had further X-ray investigations and injections into the neck and the issue of operation for the cervical spine was raised by

Dr Darwish about one year ago. She continued medication. She recalled seeing Dr Darwish a few times but a second opinion from Dr Van Gelder, neurosurgeon was suggested by her GP, particularly with regard to a decision on surgery. She said she saw Dr Van Gelder’s assistant, with recommendation for a further injection into the neck plus an apparent instruction to modify the physiotherapy program to a gym exercise program.
Ms Barkho said with the gym exercises there was increased pain in the shoulders, from the neck into the elbow particularly on the left side, with mild pain on the right side. She said the left side was severe day and night and had become, “too painful”. She stopped the exercises in 2023.

Current symptoms

At present, with regard to the neck, Ms Barkho said that she felt a pressure in the neck with pain on both sides and a severe headache, “all the time”. She described the neck pain radiating to the proximal suprascapular area of both the right and left sides, but not specifically to either shoulder/deltoid region. She said that any movement of the head caused pain with particular restriction in the mornings, with dizziness with the pain and numbness in the upper limbs.
When Medical Assessor Gray asked Ms Barkho to be more specific, she said the pain in the neck goes to the elbows of both right and left sides and with constant numbness generally in both hands and this pattern is constant. She said that Dr C Mylordi, neurosurgeon, had undertaken two injections with the second injection helping her left elbow pain.
There was documentation that Dr Mylordi organised a left shoulder ultrasound, CT cervical spine and felt the C6/7 area was affected, the C7 nerve root being implicated. Also, she felt that she had a C4 and C7 radiculopathy.
Ms Barkho said the left shoulder had always been a problem since the accident, associated with numbness in the left hand.
She said right shoulder pain came on about one year ago after the exercise/gym program, saying she believed it was an overuse situation that caused right shoulder problems.
Overall, she felt that the rib symptoms on the left had improved but she still had some difficulty sleeping on the left side because of local soreness on the left side of the chest. She said that because of the left-sided chest pain she had attended a cardiologist at one stage and had been told her heart was okay but that the pain was from her muscles.
She said that the low back pain had been aggravated after the accident. She said that before the accident the pain was on the left side of the low back, but now it was on both sides; the two lesser toes of the left foot continued to be numb but now with numbness in the left foot affecting all the toes, and the suggestion of mild global numbness in the left lower limb. She described intermittent cramping in both calves and intermittent numbness in the right toes.
In terms of treatment, she said that in 2023 that she had hydrotherapy and physiotherapy once a week but this year she was limited to one hydrotherapy session per week. She also said that Dr Mylordi had recommended swimming/hydrotherapy on a daily basis.
She said she was awaiting an upcoming appointment with Dr Van Gelder to discuss surgery, and some nerve conduction tests are being arranged.

Examination

On examination, Ms Barkho was cooperative but there were difficulties in eliciting a consistent detailed history via the interpreter, despite a good interpreter service.

Cervical spine

In the cervical spine, the range of movement was symmetrical with rotation three-quarters range right and left; flexion and extension three-quarters range; and tilt to the right and left at three-quarter range. There was no dysmetria. To palpation there was overreaction to light palpation generally about both the cervical spine and the shoulder girdles. There was no localised tenderness in the cervical spine and no guarding. There were no specific radicular symptoms.

Shoulders

With regard to the shoulders, there were complaints of pain, “everywhere” on attempted active movements.

On passive movements, there was irritability with equivocal evidence of impingement. The range of active movements of the shoulders was as follows.

Right (degrees)	Left (degrees)
Abduction	130, 115, 90, 120	90, 90, 80 5% UEI
Adduction	45, 35, 50	30, 30, 40 1% UEI
Flexion	115, 110, 130	90, 95, 100 6% UEI
Extension	70, 70, 70	50, 50, 50 0%
Internal Rotation	90, 90, 90	90, 90 0%
External Rotation	90, 90, 90	90, 90 0%

About the shoulders there was no localising tenderness but there was general overreaction to light palpation.
In assessing range of movement of the shoulders, Ms Barkho was advised, via the interpreter, of the importance of consistency and the requirement for repeat clinical examinations in assessment. Further examination was precluded when she became obviously upset at the repeat examinations. (Any movement of shoulder caused pain everywhere).
Inconsistency of active range of movements, on the right side, was outlined to her but she said that the movements were variable because of variable pain, particularly on the right side.
The clinical assessment was that the left side active shoulder movements were consistent and could be used for impairment assessment. No associated specific cervical spine symptoms/signs limiting left shoulder movements.
On the right side there was asymptomatic normal range of active internal rotation, external rotation and extension; however, there was tentative and inconsistent abduction, adduction and flexion with complaints of pain, “everywhere”; Ms Barkho said that variable pain about the right shoulder caused variable ranges of movement; she pointed to multiple areas that were causing pain that she believed were variably limiting her right shoulder movements. The right shoulder movements were inconsistent and could not be used for impairment assessment.
The ranges of right and left shoulder active movements were not affected by specific cervical pain or impairment.

Upper limbs

In the upper limbs, the circumference of the right upper arm was the same as the left upper arm, both measuring 32.5cm; the circumference of the right forearm was 26cm and the left forearm was 26.5cm.
Upper limb power was equivalent right and left with no obvious deficits.
Ms Barkho described a subjective global reduction in sensation on the left side but there was no objective sensory loss in the upper limbs, with no evidence of a radicular pattern to her complaints of sensory loss.

Thoracic spine

In the thoracic spine, there was no localising tenderness in the parathoracic musculature with generalised overreaction to light palpation over the thoracic and lumbar spine. There was more definite localising tenderness over the left lateral ribs.
There were no specific radicular symptoms or signs in the thoracic spine. Movements of the thoracic spine in flexion, extension and rotation were within normal limits, without dysmetria and with no chest wall deformity.

Lumbar spine

In the lumbar spine, there was a 7cm well-healed surgical scar in the midline lower lumbar spine. There was general lumbar tenderness without localising tenderness. The range of movement of the lumbar spine in flexion was one-third normal and extension was two-thirds normal, with negligible tilt to the right and left.

Lower limbs

In the lower limbs, there was no limitation of straight leg raising.
There was no particular irritability of hip movements.
The circumference of both thighs was equal measuring 47.0cm (10cm above each suprapatellar border.) The maximal circumference of the right calf measured 37cm and 36cm on the left.
Lower limb reflexes were normal except for an absent left ankle jerk.
Testing of sensation showed a subjective global reduction in sensation in the whole of the left lower limb with some localised hyperaesthesia/allodynia over the lateral aspect of the left foot and the lesser two toes on the left. There was no objective sensory loss on the right.
No consistent power deficit was elicited.

Investigations

CT chest, cervical spine, ultrasound shoulder, upper arm left side, 12 May 2022, Dr Z Gacs

Two-three weeks post motor accident.
Clinical notes: “Pain around the left side of the neck and the left chest and the left shoulder”.
CT chest: no evidence of pulmonary mass or consolidation. No evidence of rib fracture, thoracic vertebrae intact. Degenerative changes.
Cervical spine CT: no report available
Ultrasound left shoulder: no evidence of full-thickness rotator cuff tendon tear.
Small partial tear of the supraspinatus and subscapularis tendons. A full range of movement is noted.
Panel comment: US report - probably within normal range for Ms Barkho’s age. Full range of movement noted.

CT lumbar spine, Dr S Pillay dated 25 May 2022

History: Increasing pain radiating to left leg, radiculopathy. MVA a few weeks ago.
Comment: Multilevel lumbar spondylosis. Potential for nerve root irritation at some levels. No signs of acute fracture.? potential of descending left S1 nerve root compromise.

Spinal MRI, Dr S Pillay, 16 July 2022

Comment: There is multilevel cervicothoracic and lumbar spondylosis. Some potential for exiting nerve root impingement in the cervical region and there is canal stenosis at the L1-L2 and L5-S1 levels mainly.

Bone scan, 22 August 2022, Dr I Brittain

Clinical indications: “Pain in neck, both shoulders, low back and both knees following MVA in April 2022”. Discovertebral degenerative arthritis at C3-4 and C6-7 levels also the T8-9 level and the L1-2 and L5-S1 levels.
Recent fractures of the left fifth and sixth ribs anteriorly.

Ultrasound left shoulder, Dr P Leong, 30 April 2024

Noted to have some evidence of subacromial impingement and mild subacromial subdeltoid bursitis.
There was a question of C4 and C7 radiculopathy with CT cervical spine, 30 April 2024, however, in the report it noted that there was no definite contact on the exiting left C4 or C7 nerve root.

Ultrasound right shoulder and X-ray, 24 April 2024, Dr S Pillay

No rotator cuff tear. ‘Tendinosis’ present.

MRI left shoulder, Dr G Hazan, 11 October 2023.

No abnormality detected and in particular no tendon tear and the biceps was reported as normal. No pathology to explain the constant pain in the left shoulder.

MRI cervical spine, 16 February 2024 SPECT and medical imaging

Multilevel degenerative change noted. No significant impingement of the exiting nerve roots is seen.

Consideration of AAMI’s submissions

AAMI made the following submissions to the Panel:
(a) the Medical Assessor failed to provide adequate reasons or outline with sufficient clarity his finding that the injuries to Ms Barkho’s impairment in the cervical spine and shoulders was caused by the motor accident and that there was no pre-existing impairment, and
(b) the Medical Assessor failed to afford AAMI procedural fairness by failing to consider arguments put to him as to causation of injury and pre-existing impairment.

Causation- left shoulder

AAMI further submitted that there was insufficient evidence for the Medical Assessor to conclude that Ms Barkho sustained tendon tears to the left shoulder in the accident.
The Panel notes the history given by Ms Barkho to Medical Assessor Gray, that soon after the accident, the whole left side of her body was sore, without her being able to localise specifically.
The Panel considers as significant that there was no radiographic limb injuries found at the time of the accident, as confirmed by the Discharge Referral from Liverpool Hospital.
The CT of Ms Barkho’s cervical spine and left shoulder dated 12 May 2022 indicated mild foraminal stenosis at C5/6 and degenerative changes at the levels above and below. There was a degenerative tear of the rotator cuff and mild bursitis.
The Panel notes the report of Dr Sundaraj, orthopaedic surgeon, in October 2022, who opined that the ultrasound was “unreliable” and was “unlikely” to disclose the cause of her left neck and shoulder symptoms. It is notable that Ms Barkho did not present with X-rays of her left shoulder to the appointment with Dr Sundaraj. He opined:
“…The ultrasound demonstrates a partial tear of the supraspinatus, though I find this generally an unreliable investigation.”
The Panel also notes the report of Cassie Tsz Yan Chan on 8 February 2023:
“Since the accident, she was suffering from left shoulder pain, left sided chest pain, lower back, right sided hip pain. She had 2 surgeries to her lower back in 2007 and 2008. After the operation, she manages to walk with less pain. However, she still could not walk for long time and bend her back because of her pain. She never has any previous injuries to her neck, left shoulder and ribs prior to this accident.”
The Panel noted the report of Dr Ganesh Shiva, neurosurgeon, of 11 August 2022. It noted that Dr Shiva was well qualified, being a neuro fellow at Liverpool Hospital, and was seeing patients as locum for a neurosurgeon, Professor Mark Sheridan. Dr Shiva noted that

Ms Barkho had had a left sided shoulder ultrasound which had demonstrated the small partial tear of the supraspinatus and the subscapularis tendon.
The Panel noted the history, that the vehicle in which Ms Barkho was a passenger, had been struct on the passenger side, and from that time, she had been complaining of neck pain, reported then as radiating into the shoulder bilaterally.
The Panel notes that in the report of the same date, Dr Shiva says:
“The pain in her neck radiates into the shoulders bilaterally and is worse on the left side, but also now involves the right side (suggesting a change since he first saw her a week earlier).”
The Panel also notes that in his report of 13 July 2022, Dr Shiva says:
“She has had since that time neck pain that radiates into her shoulder and down into her hand on the left side…” (i.e. there is no mention of the right-hand side).”
The Panel notes that the accident would appear to have involved significant forces. The other vehicle initially hit the passenger door of the vehicle and spun it around with a secondary hit to the left- rear panel. The passenger door was pushed in and had impacted on the left side of Ms Barkho’s body, including her left shoulder, the left side of her neck and the left side of the pelvis. The Panel notes that there was no mention of any impact on the right-hand side.
The Panel addresses the question of whether the accident could have caused the injury to the supraspinatus, shown on the ultrasound, and on the balance of probabilities, concludes that it could have caused that injury, given that the impact was to the left-hand side, and was one of significant force.
The Panel further considers that on the balance of probabilities, the small partial tear of the supraspinatus and the injury to the subscapularis tendon, was likely to have been traumatic and consistent with the subject motor vehicle accident.

Pre-existing impairment

Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the currentWPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10:
“For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
The Panel is satisfied and finds that there is not sufficient objective medical evidence that
Ms Barko suffered from a cervical spine or left shoulder condition prior to the accident which would have attracted an impairment rating.

Conclusion

The Panel adopts the re-examination findings, diagnosis and conclusions of Medical Assessor Gray and adds the following brief reasons.
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[2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh[2022] NSWCA 31 at [11], [21], [64].
Cervical Spine: soft tissue injury caused by the motor accident; currently DRE category I = 0% WPI.
Right shoulder: no injury caused by the motor accident. No documentation of injury and long term before definite onset of symptoms:
(a) examination inconsistent. No relationship between cervical spine and apparent limitation of right shoulder movements, with no Nguyen consideration.
Left shoulder: soft tissue injury caused by the motor accident. Early documentation, and mechanism of motor accident consistent. Limited range of movement with no Nguyen consideration. 7% WPI (12% UEI).
Rib fractures: caused by the motor accident. Early documentation of symptoms, consistent with the mechanism of injury. Confirmed on bone scan. WPI = 0%.
Thoracic spine: soft tissue injury. Early documentation. DRE category I = 0% WPI.
Lumbar spine: early documentation of symptoms. Dysmetria, reflex loss left and calf wasting 1cm on left; lateral left foot sensory change DRE category III. The Panel notes Ms Barkho’s history that she was symptomatic, underwent two previous surgeries for radiculopathy and had pre-existing radicular sensory change with intermittent leg pain and probable accompanying left calf reduction. Pre-existing symptomatic DRE category III. Lumbar spine = 0% WPI.
Left arm: no documentation of specific injury.

Determination

The Panel revokes the certificate of Medical Assessor Alan Home dated 20 February 2024 and substitutes the determination to certify that the injuries caused by the accident gave rise to WPI of 7%.

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Citations

AAI Limited t/as AAMI v Barkho [2024] NSWPICMP 759

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

Insurance Australia Ltd v Marsh [2022] NSWCA 31

[2024] NSWPICMP 759

6 November 2024