AAI Limited t/as AAMI v Carr
[2024] NSWPICMP 762
•7 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as AAMI v Carr [2024] NSWPICMP 762 |
CLAIMANT: | Dianne Carr |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 7 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor (MA) Kuru’s assessment of 14% whole person impairment (WPI); claimant involved in rear-end collision and thrust her arms out to protect her terminally ill partner in the passenger seat and reached behind her to protect her daughter; claimant alleged injuries to the left shoulder for which she had surgery and right shoulder, neck, lower back, both knees and scarring; pre-accident records revealed complaints in all the injured body areas including tears of tendons in the shoulder and diagnosis of osteoarthritis in the knees; Medical Review Panel accepted claimant sustained soft tissue aggravations or exacerbations of previous conditions; Held – WPI assessed at 6%; certificate of MA Kuru revoked; no matter of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Kuru dated 14 March 2024. 2. Certifies that the degree of Dianne Carr’s permanent impairment as a result of the injuries caused by the motor accident on 27 November 2020 is 6% which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Dianne Carr was involved in a motor accident on 27 November 2020.
Ms Carr says she injured her shoulders, spine and knees in the accident and made a claim for statutory benefits with AAMI, the third-party insurer of the vehicle that caused her accident. She then made a claim for damages, also against AAMI.
A medical dispute about the degree of the Ms Carr’s whole person impairment (WPI) has arisen in connection with Ms Carr’s damages claim and that dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 14 March 2024, Medical Assessor Kuru determined Ms Carr had a WPI of 14% which is of course greater than 10%.
AAMI lodged an application with the Commission seeking a review of Medical Assessor Kuru’s decision. On 18 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the decision and allowed the Review, and on 19 July 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review of the assessment.
LEGISLATIVE FRAMEWORK
General
Ms Carr’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant as is Chapter 13, the skin chapter.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Kuru’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President’s delegate arranges for the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Kuru examined the claimant on 23 November 2023 and completed his certificate on 14 March 2024. The certificate was issued to the parties on 27 May 2024.
At [2], the Medical Assessor lists the injuries he was asked to assess:
(a) left shoulder – left shoulder rotator cuff, hi-grade partial-thickness to probable small full-thickness delaminating tear at the anterior to mid left supraspinatus, bursitis, tendinopathy. Surgical repair January 2023; Ultrasound May 2023: bursitis with impingement;
(b) right shoulder – right shoulder small full-thickness non-retracted delaminating tear the right anterior supraspinatus tendon; tendinopathy, bursitis. MRI May 2023: full-thickness tears, moderate rotator cuff tendinopathy, capsulitis, posterior de-centring of the humeral head;
(c) skin – scarring – left shoulder post-surgical shoulder scarring;
(d) cervical spine – soft tissue injury and ongoing pain, discomfort and guarding;
(e) lumbar spine – disc injury at L4/5, L5/S1 and ongoing pain and discomfort and guarding;
(f) right knee – right knee meniscus tear, Anterior Knee Pain Syndrome, and significant bruising and ongoing pain and discomfort and guarding, and
(g) left knee – left knee soft tissue injury, Anterior Knee Pain Syndrome and ongoing pain and discomfort and guarding.
At [3] and [4], Medical Assessor Kuru notes the claimant’s reliance on a report of Dr Poplawski who had assessed 4% for chondromalacia patella in accordance with AMA 4 Guides page 83 (Table 62) and says that this requires crepitation to be present and there was no crepitation when he examined the claimant. Medical Assessor Kuru also notes the report of Dr Bentivoglio relied on by the insurer.
Medical Assessor Kuru records at [8] the clamant was 64 years of age at the time he assessed her and that in 2021 she had been diagnosed with lung cancer and had a right sided lobectomy.
Medical Assessor Kuru has a history of the car accident at [9] noting the claimant was on her way home after her mother-in-law’s funeral. She was with her partner, and he had terminal cancer (he died less than a week after the accident). She was rear ended by two cars and said she had turned around to stabilise her husband and daughter before the impact. She said a month after the accident her back “collapsed” and she was referred to a physiotherapist and developed pain in her shoulders with restricted movement.
At [10] Medical Assessor Kuru documents some of the investigations and treatment the claimant has had.
In terms of her current symptoms, Medical Assessor Kuru records at [12]:
(a) restricted left shoulder movement but no pain;
(b) pain in the right shoulder with restricted movement;
(c) tightness around the base of the cervical spine with headaches;
(d) low back pain which commended a month after the accident which is in the middle of the lower back but does not radiate, and
(e) right knee and left knee – the claimant struck her knees, and they became sore over time.
On examination at [14], Medical Assessor Kuru records:
(a) arthroscopic scars over the left shoulder;
(b) restriction in both the left and right shoulders (left more so than the right);
(c) neurological normality in the upper limbs;
(d) symmetrical movement in the neck, no neural tension signs, normal reflexes and power in the upper limbs;
(e) symmetrical motion in the lower back with symmetrical reflexes, normal power and no tension signs, and
(f) no effusion in the knees, no crepitus and normal range of motion.
Medical Assessor Kuru noted at [16] that a “review of the General Practitioner’s clinical records pre-dating the accident detailed multiple presentations with pain in the lumbar spine, cervical spine, right shoulder and knees pre-dating the accident.”
He finds at [18] and [19] the following injuries caused by the accident:
(a) aggravation of a pre-existing asymptomatic rotator cuff condition in the left shoulder;
(b) aggravation of a pre-existing symptomatic right shoulder condition;
(c) aggravation of neck pain;
(d) aggravation of back pain;
(e) right knee meniscus tear further aggravated in the accident, and
(f) left knee soft tissue injury aggravating degenerative pathology in her knee.
He assessed the impairment arising from those injuries at [25] as follows:
(a) left shoulder – 8%;
(b) right shoulder – 5% less one third for a pre-existing condition;
(c) cervical spine – 0%;
(d) lumbar spine - 0%;
(e) left knee and right knee – 0%, and
(f) scarring 1%.
At [26] he discusses pre-existing impairment of the right shoulder (but not the left), the spine and the knees.
His final WPI figure was 14%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer says that the Medical Assessor did not engage with its submissions and failed to consider the evidence that shows the claimant had pre-existing issues in the knees, lower back and both shoulders. The insurer notes in particular right and left shoulder ultrasound investigations in the months leading up to the accident.
The insurer says the Medical Assessor was wrong when he said that the documentary evidence suggests the claimant was asymptomatic in the left shoulder before the accident.
The insurer says the Medical Assessor did not follow cl 6.31 of the Guidelines correctly and erred in his assessment of the pre-existing impairment.
The insurer also submits that the Medical Assessor failed to address inconsistencies in the degree of shoulder movement and put these to the claimant in accordance with cl 6.41. The insurer notes the significant differences in the claimant’s range of motion between Dr Bentivoglio’s examination in January 2024 and Medical Assessor Kuru’s in March 2024.
The insurer is also critical of the Medical Assessors assessment of scarring noting that the Medical Assessor did not address the 10 criteria of the Table for the Evaluation of Minor Skin Impairment (TEMSKI).
Claimant’s submissions
The claimant says the Medical Assessor was not bound by the insurer’s submissions or Dr Bentivoglio’s opinion but was required to form his own opinion.
The claimant also says that the Medical Assessor noted that the general practitioner’s (GP) records from before the accident determined previous conditions and therefore, he did engage with the issue of causation.
The claimant says there has to be objective evidence of a pre-existing symptomatic impairment in order for cl 6.31-33 to apply. The claimant says the records indicate the claimant had been treatment for a left shoulder problem before the accident but there is no evidence of an impairment before the accident.
The claimant says there was no inconsistency in the clinical findings of the Medical Assessor but that different clinical findings were made by another doctor. The claimant says Dr Poplawski measured a range of motion that was also different which suggests the claimant’s range of motion was not static. The claimant says the Medical Assessor was to assess the claimant as she presented on the day.
Finally, the claimant says that the TEMSKI requires an assessment of “best fit” suggesting the Medical Assessor was not required to address each of the 10 criteria.
Procedural matters
On 23 July 2024 the Panel issued directions to the parties for bundles of documents they were relying on in this review. The insurer was directed to provide its bundle by 9 August 2024 and the claimant was to file her bundle by 23 August 2024.
The insurer’s bundle of almost 800 pages was received on 6 August 2024 and the claimant’s bundle of 71 pages was received on 27 August 2024.
The Panel met on 13 September 2024 and reported to the parties on 16 September 2024.
The Panel noted the Medical Assessor was asked to assess seven injuries and directed the parties to confer:
“With a view to determining whether the insurer concedes causation of any injuries and the WPI of any of those injuries and whether the claimant concedes a 0% WPI in respect of any injuries assessed by Medical Assessor Kuru as having a 0% WPI.”
The Panel requested dated documents from the Taylor Square Private Clinic (Taylor Square) and clinical notes from Martin Doyle and/or Brett Andrews physiotherapists that the claimant may have been referred to before the car accident.
The parties were advised of the medical examination and were given the opportunity to respond to the Panel’s report.
The insurer provided dated notes from Taylor Square from 19 January 2021. The insurer advised it had no records form Martin Doyle or Brett Andrew. The insurer also conceded causation of soft tissue injuries to the lumbar spine, knees and shoulders in the subject accident but said that any such injuries had resolved leaving the claimant with ongoing symptoms referable to pre-existing degenerative changes.
The claimant responded on 22 October 2024 advising that the claimant had been unable to obtain physiotherapy notes. The claimant did not respond to any of the other matters raised in the report.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form[5] was signed as true and correct by the claimant on 6 January 2021. She described the accident as follows:
“3 car accident. I slowed down at intersection. Third car hit the second car which hit me. I jerked forward with my hand not leaving the steering wheel.”
[5] Page 54 of the claimant’s bundle.
She said she sustained a “lower back injury, shoulder injury.” The Panel notes there is no mention of any injury to the neck or the knees in her claimant form.
There is a Certificate of capacity dated 1 April 2024 from Dr Ramlochun[6] diagnosing back pain and shoulder pain from the motor vehicle accident “as well as a knee injury”. The claimant was certified as unfit for any form of work.
GP NOTES
[6] Page 57 of the claimant’s bundle.
Taylor Square Private Clinic
There are over 450 pages of records from this practice in two bundles.[7] They commence well before the accident with these documents and notes:
[7] Page 49 of the insurer’s bundle.
(a) 24 May 2004 the claimant attended on Dr Price[8] for “pain – shoulder” and excess weight and was prescribed Tramal. Tramal was prescribed again in 2005 and 2006 but there is no explanation recorded for what condition it was prescribed;
[8] Page 96 of the insurer’s bundle.
(b) report from Dr Bye dated 19 September 2005 concerning abdominal issues;
(c) in 2006 and 2007 the claimant was prescribed Stilnox and then Temaze with no explanation recorded. In 2008 the claimant was prescribed Imovane;
(d) in 2008 the claimant reported stress with her daughter and counselling was provided and on 2 December 2008 a referral for physiotherapy was given to address neck and shoulder symptoms;
(e) on 9 January 2009 the claimant was complaining of back pain and was prescribed Tramal and physiotherapy was recommended. Right shoulder and right lower rib pain was the subject of a consultation in March 2009;
(f) on 30 June 2009 the claimant attended for neck pain, and she was advised to resume physiotherapy, and Tramal was prescribed. There were attendances in July, August and September 2009 for ongoing neck pain;
(g) on 26 February 2010 the claimant attended for persisting shoulder pain and was referred for physiotherapy and Tramal was prescribed. On 6 April 2010 right arm pain was said to persist, and a scan of the cervical spine was requested;
(h) the claimant attended on 4 June 2010 complaining of persisting neck pain. Tramal and Imovane scripts were provided. A CT scan of the cervical spine dated 7 June 2010 with a clinical history of “pain in the neck radiating to the right shoulder” was done and it was reported there was a small disc protrusion at C6/7 but no nerve root or canal compression;
(i) a letter from Mr Laver, physiotherapist regarding a presentation on 22 June 2010 following a “six month increase in her chronic right-sided neck pain with intermittent paraesthesia into her middle fingers. The symptoms were worst during washing, driving, housework and cold weather.” The claimant had full range of movement and no neurological signs and attended for one treatment only;
(j) neck pain persisted in June and July 2010 and on 4 August 2010 it was “severe” and on 27 August 2010 Panadol Osteo was prescribed. On 31 December 2010 shoulder pain was ongoing, and physiotherapy was recommended;
(k) in February 2011 and then in March persisting shoulder and worsening neck pain were the subject of complaints. Increasing the frequency of physiotherapy was suggested and a higher dose of Tramal was prescribed. Physiotherapy was continuing in April and in May with the neck pain said to be on and off. Hip pain emerged in August and September 2011 and Panadol osteo was prescribed;
(l) on 22 November 2011 the claimant had a fall on the wet floor at home and had bruising over her coccyx with pain and limited movement in her right shoulder. Physiotherapy was suggested. On 14 December 2011 the right shoulder pain was said to be exacerbated and a short course of Voltaren prescribed;
(m) the claimant saw Dr Byrne for neck pain and a referral to Dr Darveniza, neurologist was given, “for opinion and management. She has had severe pain neck down [right] arm with some response to physio”;
(n) on 8 August 2012 the claimant came in for pain in her shoulder and foot and Panadol Osteo, Tramal, Voltaren were given;
(o) on 9 July 2013 the claimant was given approval for a transcutaneous electrical nerve stimulation (TENS) machine which was repeated on 20 August 2013;
(p) in 2018 cardiac investigations were undertaken due to two episodes of jaw pain and concern over a skin lesion on her right hand;
(q) a referral for psychological counselling was given on 28 July 2020 due to the stress of “a friend who is dying” and she had a lot of stress in her life. A depression scale rating was given – extremely severe for depression and stress and severe for anxiety. A GP mental health plan was drawn up on 8 September 2020, and
(r) on 13 October 2010 a plan was drawn up to reduce and cease the claimant’s Imovane medication.
After 1 May 2013 the clinical notes do not include dates which is somewhat problematic but there are complaints of hip pain, a pinched nerve in the neck, ongoing issues with the claimant’s daughter and continued scripts for Tramal and Imovane. There are also ongoing consultations concerning weight loss. Also in the undated notes are regular complaints of musculoskeletal pain including in the back, neck, hip, shoulder, knees, ankles and wrist pains. Assuming the entries are all in order these can be dated to before the 2018 cardiac investigations noted on page 254 and the subject of the note in [50(p)] above.
The first note after the cardiac investigation is of “neck – pain” and ongoing stress at home. There are then complaints of wrist pain, back pain after lifting recently. Knee pain occurs, a fractured right metacarpal occurred with a moon boot prescribed and a couple of further attendances for foot pain are recorded. There are complaints of knee pain and left shoulder pain and stress as a carer. As these all occurred before a referral was made for counselling due to “a friend with a terminal illness” and therefore occurred before July 2020.
There is a long note at page 284 which can be dated to before September 2020 because it refers to the mental health plan drawn up on 8 September 2020. It refers to pain in knee causing pain when walking. Osteoarthritis was considered likely, and a CT scan and review recommended. The next note is also described as “long complex consult” covering mental health issues and knee complaints (osteoarthritis) and shoulder problems “bursitis and RC tear.” The next long note concerned ceasing Imovane and starting Endep (13 October 2020 see note above) and the following one (page 287) also refers to bursitis and a torn right shoulder rotator cuff.
After the accident:
(a) the first (undated) attendance recorded[9] refers to the death of Nick. She married him 24 hours before he died and was grieving “hard”;
[9] Page 290 of
(b) on 19 January 2021, the claimant attended Dr Burdon and the note refers to a car accident on 27 February 2020 (clearly an error in the date) and in addition to issues of grief and counselling the note reads:
“Painful back following this off and on – went
Had 4 sessions with physio – using private insurance
Used some Celebrex of Nicks which helped
Ct Scan and review
Use Tramadol max once per week for v severe pain otherwise panadol and voltaren.”;
(c) on 3 May 2021 there is a long note which corresponds with the (undated) referral for physiotherapy to Mr Andrews regarding back pain radiating down the left leg over the thigh. Says, “knees were jammed against the dashboard” and she feels like her knee gets stuck and she has to manually move it. No falls and no knee swelling or redness. The claimant gives a history of marrying Nick two weeks before he died. There were stress issues reported concerning her daughter. The claimant reported a reluctance to drive which meant she was walking more which was “exacerbating her back pain” from the accident. There is no mention of neck or shoulder pain;
(d) 7 May 2021 contains a similar long note with identical symptoms and history repeated for low mood, post-traumatic stress disorder, back and knee pain and insomnia;
(e) 21 May 2021 the claimant attended Dr Ramlochun with a sore throat, bilateral knee pain, back pain, insomnia and mental health. Doctor records a query from insurer if accident related and reply email sent;
(f) the email in support of the claimant’s MRI of her knee is dated 1 June 2021 and says, “Based on the history given by the patient, I believe the injury was a pre-existing one, but it was presumably exacerbated by the car accident in December 2020.”
(g) on 4 June 2021, the claimant had poor sleep was having counselling and was “less sad and has motivation to do more things around the house.” The claimant’s knee pain was reviewed, and it was worse after being on it all night;
(h) on 16 June 2021, Dr Ramlochun covered the claimant’s knee injuries, mental health (better mood, resumed driving) and weight loss. He also noted “impeded by shoulder / back / knee injuries”;
(i) 16 and 18 August 2021 involved two long consultations with stress, post-traumatic stress disorder, work cover issues and back pain/neck pain. A case conference occurred with the insurer on 20 August 2021 and a similar consultation occurred on 24 September 2021;
(j) on 1 October 2021 Dr Ramlochun takes a history of left greater than right shoulder pain. There is an acknowledgement of the previous problems but a complaint that since the accident they have worsened “as she reached out to pull and protect partner.”;
(k) the claimant attended on 21 January 2021 with an acute flare up of back pain which had been going on for six weeks. It did not radiate and feels like an ache “just woke up with it in December and says similar to when she had the accident.” She had seen a physiotherapist about it;
(l) 22 February 2022 the claimant reported to Dr Ramlochun back pain in the mid back and L4/5 area which radiates down the leg and is burning and stinging. Imaging was requested;
(m) 17 May 2022 – osteoarthritis of the knee – had a fall three weeks ago on it. There was a piece of skin removed which was healing but says the claimant reported a dull ache which gets sharp at night. She was advised to take Panadol Osteo. On 31 May 2022 a refer was given to an orthopaedic surgeon at St Vincents Hospital, and
(n) 3 January 2024 slipped while walking in the rain – fell on her side hit her head and side of chest and left knee – normal range of motion but ongoing tenderness on medial and peripatellar area.
Glebe Medical Centre[10]
[10] Page 509 of the insurer’s bundle.
On the patient summary[11] there is an “active history” which includes bilateral osteoarthritis of knee from 27 June 2019 to “current”.
[11] Page 510 of the insurer’s bundle.
The notes start on 8 November 2011 and there are attendances in 2016 and 2017 for stress associated with the family circumstances and weight gain (20kg reported in past two years) on 21 December 2017. Abdominal issues and stress with carer responsibilities appear in 2018.
There were attendances in 2018 and 2019 for hand pain and wrist pain and a diagnosis of carpal tunnel syndrome was proposed on 27 February 2019.
On 15 May 2019 the claimant attended with right shoulder and right neck pain exacerbated by movement, and she was taking Voltaren. Physiotherapy was recommended.
On 30 May 2019 the claimant attended again with wrist pain (no carpal tunnel syndrome was found following nerve conduction studies at Royal Prince Alfred Hospital (RPAH)) but pain was worsening. She also reported searing sharp left knee pain at night only. On 11 June 2019 the claimant’s wrist pain was improved with Endep but both knees were painful on stairs. On 27 June 2019, Dr Baker explained the claimant’s X-ray results and diagnosed knee osteoarthritis consistent with mild progression of osteoarthritis. On 2 July 2019 the claimant attended again with pain worse at night but a mild ache in the knees only during the day.
On 13 August 2019 the claimant attended having fractured the fifth metacarpal of the right foot.
On 23 October 2019 the claimant attended with right ankle pain described as a sharp shooting pain. On examination it was swollen, and the impression was it was a sprain.
On 29 October 2019 the claimant was still experiencing right ankle pain and there was a further attendance on 2 November 2019 and ultrasound imaging.
The claimant attended on 12 November 2019 due to an increase in the deep sharp knee pain which was waking her from sleep. No clicking locking or giving way. Ms Carr attended again on 8 December 2019 with left knee pain.
There are several entries in 2019 and 2020 about carer stress.
The claimant first attended after the accident on 2 December 2020 seeing Dr Qidwai who records, “with left shoulder pain after MVA”. The doctor takes this history:
“Patient’s car was stationary at set of lights, then hit from behind. Low impact. Both arms on steering wheel at the time. Patient felt her left arm jolted forwards with impact.”
The claimant could not tell when the pain started because she was concerned about her partner. She had left shoulder pain anterior mainly and worse with abduction. Imaging was requested from Alfred imaging.
On 28 December 2020 the claimant reported:
“Back pain for 1 week or so.
Last Tuesday / Wednesday leant forward and felt sudden back pain – across lower lumbar sharp pain. Across entire upper back aching also since then. Reduced range of motion in back. Taking Celebrex from Nick – not helping a lot. No radiation of pain into legs. No paresthesia in legs or wekaness.”
The claimant also reported her left shoulder was still sore with movement since the car accident, but she has not had an ultrasound or X-ray yet.
On 8 January 2021 the claimant attended with the claim form. She had seen the physiotherapist in relation to her lower back and the physio said her back pain might have been caused by the accident. The doctor did not complete the form. In terms of the claimant’s left shoulder ultrasound results the claimant was diagnosed with mild bursitis and “patient reports symptoms are much better, essentially resolved.” Acupuncture was offered by Dr Qidwai.
On 5 May 2021 the claimant reported ongoing back pain after the accident.
On 1 June 2021 the claimant attended on Dr Baker complaining of insomnia saying she had sleep issues for many years and had been taking sleeping pills for over 20 years (prescribed at Taylor Street) which she had not told Dr Baker about before. There are several other attendances for insomnia and grief, depression and anxiety following Nick’s death and her daughter’s issues. There is no mention of the motor accident in most of these.
The year of 2022 was primarily focussed on the claimant’s lung cancer diagnosis and lung surgery. The motor accident was mentioned on 26 May 2022, and it was noted the claimant was seeing another GP and was to have shoulder surgery and had worsening knee pain.
Star City Medical Centre[12]
[12] Page 705 of the insurer’s bundle. Dr Dua has also produced a separate bundle of notes which are identical.
These notes commence with a referral from Dr Nanda to Dr Dua dated 10 February 2021. Both Dr Nanda and Dr Dua are in the same practice. The referral seeks an opinion regarding counselling for symptoms of post-traumatic stress disorder following a car accident. A mental health plan was developed between the two doctors.
The handwritten notes detail the accident and its effect on Ms Carr along with the death of her partner of 20 years. She says they did everything together. There is a note that her daughter is very supportive, and she has a good relationship with her.
The claimant reports tearfulness, difficulties driving, she was busy before the accident looking after Nick (as his carer) and now has little to do. She then became her daughter’s carer as her daughter is on the disability support pension for mental health issues.
The notes end on 7 June 2021 with a note advising that six further sessions would be requested from the insurer.
Chris O’Brien Lifehouse Centre
The claimant had a number of family members with cancer and as a result had a number of checks and tests done at the Chris O’Brien Lifehouse Centre both before and after the accident. There are no documents of relevance to the accident, in the Panel’s view.
Treating medical records and reports
Mr Doyle, physiotherapist wrote to Dr Nanda of Star City on 8 February 2021[13] regarding treatment for the claimant’s lower back pain following the motor accident. The claimant had difficulty walking and a possible disc injury at L4/5 and L5/S1 was suspected. Range of motion was restricted but there were no neurological signs.
[13] Page 63 of the insurer’s bundle.
In addition, there was left shoulder loss of movement with pain in the scapula and some referred pain on neck rotation. He could not detect any shoulder trauma and said, “I have treated Diane some time ago for chronic neck pain on the right side only.”
He diagnosed a whiplash to the lower lumbar spine and left shoulder. As he did not “do third party physiotherapy” he referred the claimant to a clinic closer to her home.
Dr Ramlochun referred the claimant to Dr Yalizis on 27 October 2021 for opinion and management of bilateral bursitis and full thickness tear of anterior supraspinatus in both shoulder noting the claimant was more symptomatic in the left shoulder.
Dr Yalizis, orthopaedic surgeon wrote to the claimant’s doctor on 9 November 2021. He has a history of the car accident as well as “pai in both her shoulders prior to injury” and that the accident “exacerbated the pain on both sides.”
He noted the radiology and the two tears and recommended arthroscopic rotator cuff repair.
Dr Brighton, hip and knee surgeon saw the claimant on 27 October 2021. He reported to Dr Ramlochun[14] that the claimant was hit by two cars a year ago “causing a direct blow to both kneecaps at that time.” The claimant said she noted anterior knee pain at the time “she did not seek medical attention for some months” but her knee pain has persisted. She also reported “central lower back pain.”
[14] Page 80 of the insurer’s bundle.
On examination Dr Brighton noted “subtly decreased muscle tone and power” around both knees but no effusion or tenderness and the joints were stable. He reviewed the MRI scans identifying a “bone bruise” but no defects. He reassured the claimant she did not require an operation, but she needed to persist with physiotherapy and rehabilitation and consider platelet rich plasm injections (PRP) to further alleviate symptoms.
The referral to Dr Brighton dated 1 October 2021 refers to “chronic meniscal tears and sensation of knee being stuck when hyperextended … following car accident in late 2020.” The referral does refer to “pre-existing knee condition.” The Panel notes Dr Brighton does not record any pre-accident history in his report, and it is not clear whether he had access to any of the pre-accident knee radiology.
Ms Mistry, physiotherapist wrote a recommendation to Dr Ramlochun for work-related capacity and diagnosed a left shoulder rotator cuff injury, right knee meniscus tear and lumbar spine chronic pain injury from the motor vehicle accident. She noted the claimant was still experiencing anxiety and flashbacks. While no date appears on the document, the claimant dates this document in the schedule at 17 February 2022.
Dr Yalizis next saw the claimant on 1 November 2022 and again reported to the GP recommending surgery. A further letter of 22 December 2022 expressed the hope the surgery would occur in early 2023.
Dr Yalizis wrote to Dr Ramlochun on 26 January 2023 two weeks after the surgery noting the claimant was “making very solid progress.” On 22 February 2023 she was “happy with her pain reduction.” On 11 April 2023 he recommended the claimant work on her range of motion and strengthening and that she could use her arm for activities of daily living.
On 31 May 2023, Dr Yalizis saw the claimant six months after her left shoulder repair and reviewed the ultrasound which showed the tendon to be intact. However, he noted a tear on the right-hand side and recommended surgery which the claimant was keen to have.
Dr Ramlochun referred the claimant on 9 May 2024 to Dr Yalizis and the terms of the referral are for “right shoulder pain. Recent ultrasound shoulder shows small tear in supraspinatus and subacromial-deltoid bursitis.”
Radiology
Knees
The report of an X-ray of both knees performed on 20 June 2019[15] to Dr Baker has a history of “due to sharp left knee pain at night and bilateral knee pain when walking up stairs” and it was compared with a study dated 16 May 2019. It indicates there was mild narrowing of the joint space in both knees which has progressed since the last X-ray – mild or moderate degenerative changes “small erosions and bony spurring at the medial joint space of the left knee developed”.
[15] Page 589 of the insurer’s bundle.
A right knee CT scan[16] reported slight medial joint space narrowing with spurring, joint fluid – early arthrosis in the medial compartment.
[16] Page 791 of the insurer’s bundle.
The claimant had a left knee ultrasound on 25 February 2021 at the request of Dr Nanda Star City Medical. The reason was “medial knee pain” and there was “medial meniscal bulging with a parameniscal cyst that may be due to a chronic tear and degenerative change”. The right knee ultrasound revealed a 5mm cyst but otherwise normal pathology and no meniscus tears.
On 1 September 2021 at the request of Dr Ramlochun, the claimant had an MRI of the right knee[17] which revealed high-grade penetrating chondromalacia with minor prepatellar subcutaneous oedema, chronic tear of the medical meniscus with partial extrusion and mid tibial bursitis.
[17] Page 73 of the insurer’s bundle.
Shoulders
An ultrasound was performed on 3 August 2020 and the report was addressed to Dr Burdon[18] saying “left shoulder probably cuff tear – small tear of supraspinatus probably full thickness tear”.
[18] Page 791 of the insurer’s bundle.
On 21 October 2020 an X-ray and ultrasound of the right shoulder was performed[19] and the report addressed to Dr Burdon says, “painful shoulder after fall”. An insertional tear of
8-10mm was recorded along with rotator cuff tendinopathy with a small full-thickness supraspinatus tendon tear and bursitis.
[19] Page 793 of the insurer’s bundle.
22 October 2020 left subacromial bursal injection report addressed to Dr Burdon.
On 11 October 2021 the claimant had an X-ray and ultrasound of both shoulders which revealed a right supraspinatus tear, bilateral bursitis, acromioclavicular joint arthrosis and glenohumeral joint osteo-arthritis.
An MRI of 25 October 2021 noted “worsening bilateral shoulder pain.” This confirmed the small full-thickness delaminating tear of the anterior supraspinatus measuring 7 x 4mm in the right shoulder and a high-grade partial thickness tear in the supraspinatus. Bursitis in both shoulders and arthrosis in both acromioclavicular joints were noted.
A further MRI was done on 16 May 2023 noting full thickness tears of the anterior and mid fibres of the right supraspinatus with moderate tendinopathy, ongoing capsulitis, bursitis, acromioclavicular (AC) joint arthropathy and possible multidirectional instability.
On the same day an ultrasound was done showing mild subacromial-subdeltoid bursitis with impingement.
An X-ray and ultrasound of the right shoulder dated 17 April 2024 diagnosed partial thickness tears involving the subscapularis and supraspinatus with subacromial bursitis with impingement.
An MRI of the claimant’s right shoulder was performed on 17 June 2024 showing supraspinatus tendinosis with a small tear (6mm) in anterior to posterior. There was also evidence of subscapularis and infraspinatus tendinosis documented in the report dated 18 June 2024.
Spine
The claimant had a CT scan of her lumbar spine on 25 February 2022 due to “chronic low back pain” which reported spondylitic change with potential irritation of the left more than right L5 nerve root.
Medico-legal reports
Dr Poplawski, orthopaedic surgeon provided a report to the claimant’s solicitors dated 1 June 2023 (after an examination on 18 May 2023).
He has a history of the claimant’s rear end accident and that she injured her shoulders lower back and both knees. He has a history of discomfort in the lower back which did not bother her for two to three weeks when the discomfort increased. She has had anterior knee pain since the accident and developed pain in both shoulders more marked on the left and which had progressed to constant pain and limitation of motion.
He also records arthroscopic left shoulder repair of a small tear in the rotator cuff by Dr Yalizis. The claimant’s right shoulder was now aggravated due to overuse as a result of the left shoulder injury.
He notes the claimant was referred to Associate Professor Waller for knee pain who wanted to inject the knees to try and reduce inflammation. Physiotherapy was reported to be beneficial, but the insurer has withdrawn funding.
Dr Poplawski includes no pre-accident medical history, and it is not clear what documents he had before him.
He diagnosed a partial rotator cuff tear in the left shoulder, an impingement syndrome in the right shoulder, bilateral chondromalacia patella and three disc bulges at L3/4, L4/5 and L5/S1.
In a separate report he assessed WPI at 5% for the cervical spine, 12% for the shoulders, 4% for the knees.
Dr Bentivoglio examined the claimant on 5 May 2022 and provided a report to the insurer’s solicitors on 12 May 2022.
The claimant told Dr Bentevoglio her knees hit the dashboard, and she injured her back and shoulders. The claimant reported hoping her symptoms would settle and then when they did not, she had physiotherapy (2.5 months after the accident). She then went and saw her doctor.
The claimant had ceased work in the week before the accident but has not worked since the accident.
The claimant said her back pain troubles her the most. It radiates to the knee. In terms of her knees she has an equal amount of symptoms in both knees. She has fallen twice in the last 12 months. She has difficulty with stairs and her knee symptoms are worsening.
Her shoulders are painful 50% of the time and they are equally painful.
After examining the claimant, Dr Bentivoglio expressed doubt as to the mechanics of the accident and the injury to the claimant’s knees, her back pathology was minor and normal for a person of her age. He acknowledged abnormality in the shoulders but considered the accident (based on photographs) to be minor and he again had difficulty understanding how the injury occurred.
Other assessments
Medical Assessor Hong examined the claimant for the purposes of a WPI assessment on 4 March 2024 and issued his certificate on 8 March 2024.
He has a history of the claimant’s younger days, family life and work life.
The claimant denied any previous physical problems and when challenged about carpal tunnel syndrome in 2018 she said she had never had carpal tunnel problems. She accepted she had depression and anxiety starting in the 1990’s associated with a Family Court matter. She did not remember what her mental state was like in the four or five years before the accident. She did say her husband had been diagnosed with cancer and she may have been depressed after the that. She said in the year before the accident her life was good.
She was asked about “carer stress” and being prescribed venlafaxine which she said she did not take. While she initially said she did not see a psychologist she then said she did see a counsellor in relation to her daughter. She admitted having seen a psychologist for six months in order to help her daughter.
The claimant gave Medical Assessor Hong a history of being stationary in the car coming back from her mother-in-law’s funeral. She says she immediately turned around to check her husband and recalls seeing him being thrown back and forth. She put her arm out to support him and at the same time put her other arm out to prevent her daughter being injured.
The claimant said she drove home after the accident, but her car was written off. She said she suffered anxiety immediately after the accident and keeps seeing imagines of her husband being thrown back and forth.
Her husband died five days later having been told by the doctors he had four weeks to live. She took a long time to adjust to being without him.
Ms Carr reported surgery in 2022 for lung cancer.
Medical Assessor Hong diagnosed a post-traumatic stress disorder with anxiety and depressive symptoms caused by the accident. He assessed WPI at 7%, pre-accident impairment at 4% leaving a 3% impairment due to the accident to which he added 1% for treatment.
RE-EXAMINATION FINDINGS
Ms Carr attended the medical examination at the Commission’s medical suites on 24 October 2024.
History provided by the claimant
Pre-accident medical history
Ms Carr is now 64-years-old. She is right-handed. She is a widow as her husband died of cancer soon after the subject accident. She ceased work (to care for her husband) one week before the accident and has not worked since.
She agreed that she previously has had shoulder problems (mainly on the right) but said she had no major problems at the time of the accident. She said it did not restrict her activities of daily living and did not interfere with her ability to care for her husband. She had tests and physiotherapy in the past. Her shoulder pain was never severe.
She had other presentations with lumbar pain, cervical spinal pain and knee pain. She reported that the pain in these areas was not persistent.
She said she herself was diagnosed with lung cancer in 2021 and has undergone a right sided lobectomy.
History of the motor accident
On the 27 November 2020 she was in her vehicle stationary at a set of lights. She was driving. Her husband was in the passenger seat and her daughter was in the rear seat behind her.
She said both hands were on the steering wheel as the car hit. After the car, she immediately stretched her right arm across to her husband who she had watched being thrown backwards and forwards. She put her left arm back to her daughter. She sits very close to the steering wheel she reported and also struck both knees on the dashboard.
She was wearing a seat belt. The airbags in her vehicle did not deploy.
History of symptoms and treatment following the motor accident
After the accident she “did not think of herself” for the first three weeks. Her husband died on the 2 December 2020, five days after the accident. Four weeks later her back “collapsed” she said and she could not walk.
She attended physiotherapy and was treated at “L4 and L5”. She had regular massage and her back improved.
She had investigations of her shoulder, knees and lumbar spine.
She saw Dr Brighton, an orthopaedic surgeon about her knees. The Panel notes in a letter of the 27 October 2021 he diagnosed patellofemoral osteoarthritis and recommended physiotherapy.
On 9th November 2021 she was referred to Dr Yalizis for her ongoing shoulder pain. She had a left shoulder operation on 16 July 2023 paid for by AAMI. She said she is awaiting a right shoulder operation which has been approved and is also to be funded by AAMI.
Injuries or conditions sustained since the motor accident
Ms Carr has had a right lobectomy for lung cancer. The cancer was completely removed.
Current state
Current symptoms
In the left shoulder, Ms Carr said she continues to have mild restriction in movement but little pain. In the right shoulder there is pain over the outer aspect with restricted range of motion.
The cervical spine is “not too bad” now. She has some stiffness and occasional headache. She denied any radiating or shooting pain in the upper limbs.
In the lumbar spine she reported occasional flare ups. The pain is across the low lumbar region and after half an hour walking the pain. She denied any radiating or shooting pain in the lower limbs.
Ms Carr says her knees are not too bad. If anything, it is mainly the right knee which aches.
Current and proposed treatment
She is awaiting a right shoulder operation
She continues a self-directed exercise and stretching programme at home.
She takes Celebrex, Endep 25mg and Lyrica 25mg (two at night).
Clinical examination
General presentation
Ms Carr is a well looking woman who moved easily around the examination area.
Her height is 161cm and her weight 93kg. She stated that she has put on around 6kg since the accident due to inactivity.
Cervical spine
Ms Carr had a normal range of motion in all planes with no dysmetria. There was no muscle spasm and no guarding observed.
In her history and on examination she confirmed there was pain in the neck only and it did not radiate into the shoulders or upper limbs.
Power, sensation and reflexes in the upper limbs were tested and were all normal. There was no atrophy (upper limb circumference below and above the elbow crease were equal). There were no nerve root tension signs.
Lumbar spine
Range of motion in all planes was normal and symmetrical. There was no muscle spasm or guarding. Ms Carr did not complain of any radiating pain from her lower back into her lower limbs.
Power, sensation and reflexes in the lower limbs were normal on testing. Calf and thigh measurements were equal and there were no other signs of atrophy. Sciatic nerve root tension signs were negative.
Upper extremities
Ms Carr could reach her occiput easily on both sides. With the left arm, she could reach the T6 spinous process and on the right the T7 spinous process.
The ranges of active motion in the shoulders measured with a goniometer is outlined below.
SHOULDER MOVEMENT
RIGHT (degrees)
LEFT (degrees)
Flexion
130
170
Extension
40
40
Abduction
120
180
Adduction
50
50
Internal rotation
70
80
External rotation
80
90
The claimant was co-operative and consistent throughout the re-examination in particular her shoulder movements were consistent.
The comparable measurements recorded in Attachment A to these reasons show that the claimant’s range of motion has varied over time. Medical Assessor Gorman’s measurements demonstrate the success of the left shoulder surgery in restoring almost a full range of motion. The claimant’s right shoulder range of motion has deteriorated over time, but there is no reason to think that it too will not improve following the surgery approved by the insurer.
There was no abnormality of movement in the elbows, wrists or hands.
The claimant has small scars on the left shoulder associated with her arthroscopy. While she is aware of them and can locate them, they are small and have healed well.
Lower extremities
She reported that her right knee was most symptomatic with worse pain than the left.
There was no swelling or crepitus in either the left or right knee. The range of motion was from 0 to 110° on both the right and left side. There was no flexion contracture (or loss of extension) and no valgus or varus abnormality.
There was no ligamentous instability.
DETERMINATIONS
Diagnosis and causation
The claimant referred the following injuries to the Commission for assessment:
(a) spine namely neck and lower back;
(b) left and right shoulders (including scarring to the left shoulder), and
(c) left and right knees.
The insurer concedes that the claimant sustained soft tissue injuries to the lower back, both knees and both shoulders but says that the claimant has recovered from any such injuries leaving no impairment. The insurer was silent as to causation of the neck injury.
The Panel is satisfied that the mechanism of the accident could have caused injuries to all of the claimed body parts.
The question remains whether the claimant sustain injuries to all the claimed parts of her body. The Panel notes it was a rear end collision and the claimant reports having both hands on the steering wheel at the time and then immediately turning and reaching out to protect her partner in the passenger seat and her daughter in the back. The Panel also notes the claimant had a vulnerable spine, shoulders and knees having complained before the accident of symptoms in all the affected body parts. She had been diagnosed with osteoarthritis of both knees and had investigations done of both shoulders revealing bursitis and tears in the soft tissue of her shoulder. Mr Doyle, physiotherapist refers to having treated the claimant’s chronic neck pain for some time.
In her claim form and in the medical certificate completed by Dr Ramlochan the lower back, shoulders and knees were mentioned. The Panel is satisfied on the basis of the contemporaneous records that the claimant did sustain soft tissue injuries to those parts of her body on a background of previous degenerative and arthritic conditions.
The claimant did not mention a neck injury in the claim form or the medical certificate and it was not mentioned in the GP notes until 21 May 2021 and in the physiotherapist’s notes it is referred to as chronic pain. The Panel notes that the claimant’s partner died very soon after the accident and she grieved for him deeply which may explain a failure to mention her neck symptoms. If the claimant did sustain a neck injury, then the Panel is of the view it was a soft tissue injury which caused a short-term exacerbation of the underlying pre-existing condition. In the light of the Panel’s impairment assessment, the Panel does not propose to engage further with the issue of causation of this injury.
In summary the medical members of the Panel diagnose the following:
(a) left shoulder – soft tissue injury aggravating pre-existing rotator cuff disease;
(b) right shoulder – soft tissue injury aggravating previous rotator cuff disease;
(c) skin – surgical scarring of the left shoulder;
(d) cervical spine – soft tissue injury exacerbating pre-existing degenerative disease;
(e) lumbar spine – soft tissue injury aggravating pre-existing degenerative disease;
(f) right knee – soft tissue exacerbation of pre-existing osteoarthritic knee pain, and
(g) left knee – soft tissue injury exacerbating pre-existing osteoarthritic knee pain.
What is the impairment to the claimant’s spine?
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions, the cervical, thoracic, and lumbar. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are also relevant.
The usual DRE II category requires there to be:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
The DRE III category requires radiculopathy which is defined in cl 6.138 as the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant reported to Medical Assessor Gorman intermittent pain in her neck which does not radiate, and she did not complain of any neck-related symptoms in the upper limbs. There was no guarding, dysmetria or non-verifiable radicular symptoms (therefore no DRE category II impairment) and no signs of radiculopathy (therefore no DRE category III impairment). Based on Table 73 of AMA 4 Guides and Tables 6.7 and 6.8 of the Guidelines, the claimant is assessed as having a DRE category I impairment of 0%.
In the lower back, Ms Carr reported at the re-examination pain, but no radiating pain or symptoms that could be interpreted as non-verifiable radicular complaints. There was no dysmetria or guarding on examination and no signs of radiculopathy. In accordance with Table 73 of AMA 4 Guides and Tables 6.7 and 6.8 of the Guidelines, the claimant is assessed with a DRE category I impairment of 0%.
While the claimant clearly had pre-existing issues with her neck and to a lesser extent the lower back, in the light of the 0% WPI finding in each of these regions, there is no need for the Panel to consider a deduction pursuant to cls 6.31-6.33.
What is the impairment in the claimant’s knees?
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and Table 6.5 states which of the above methods can and cannot be combined and Table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
The claimant reported to Medical Assessor Gorman, symptoms in her knees but no other part of her lower limbs. The medical members of the Panel are of the view that either the range of motion method or the arthritis method of assessment would be appropriate bearing in mind the nature of Ms Carr’s injuries and her pre-existing diagnosis of bilateral osteoarthritis.
Table 41 on page 78 of the AMA 4 Guides provides for mild, moderate and severe impairments to knee motion. A mild impairment is awarded if there is less than 110 degrees of flexion. Ms Carr demonstrated 110 degrees of flexion in both knees and therefore does not have an assessable impairment in either her right or left knee under the range of motion method.
Table 62 at page 83 of the AMA 4 Guides provides for a lower limb impairment allowance if there is loss of cartilage interval supported with roentgenography. In Ms Carr’s case there are no roentgenographs. However, the footnote to the table provides that “in a patient with a history of direct trauma, a complaint of patellofemoral pain and crepitation on physical examination… a 2% whole person … impairment is given.”
Leaving aside the involvement of the pre-existing condition, the claimant gives a history of direct trauma to her knees on the dashboard (she said she sits close to the steering wheel) and complains of patellofemoral pain. There was however no crepitus in either knee when examined by Medical Assessor Gorman (and the Panel notes none when examined by Medical Assessor Kuru either).
The claimant therefore has no assessable impairment in either knee in accordance with either of the possible methods of assessment.
While the claimant clearly had pre-existing issues and a diagnosis of osteoarthritis in both knees before the accident, because there is no assessable impairment, there is no need for the Panel to consider a deduction pursuant to cls 6.31-6.33.
What is the impairment of the claimant’s shoulders.
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding. Regional impairments are combined to obtain a total UEI for each limb which is then converted to a WPI using Table 3 on page 20 of AMA 4 Guides.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
In Ms Carr’s case, the medical members of the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with Part 3.1d that is the abnormal range of motion method.
The abnormal range of motion method requires the measurement of six functional units of motion:
(a) flexion and extension (figures 36 and 38 AMA 4 Guides);
(b) abduction and adduction (figures 39 and 41 AMA 4 Guides), and
(c) internal and external rotation (figures 42 and 44 AMA 4 Guides)
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment for each limb which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.
Based on the results of the examination by Medical Assessor Gorman, the claimant’s UEI assessment is as follows
Shoulder movement
Normal range
RIGHT
(degrees and UEI)
LEFT
(degrees and UEI)
Flexion
180
130 = 3%
170 = 1%
Extension
50
40 = 1%
40 = 1%
Abduction
180
120 = 3%
180 = 0%
Adduction
50
50 = 0%
50 = 0%
Internal rotation
90
70 = 1%
80 = 0%
External rotation
90
80 = 0%
90 = 0%
Total UEI
8%
2%
The left shoulder UEI impairment of 2% is converted to a 1% WPI in accordance with Table 2 on page 20 of the AMA 4 Guides. The right shoulder UEI impairment of 8% converts to 5% WPI in accordance with Table 2.
Clauses 6.31 to 6.33 provides for the adjustment of impairment due to pre-existing impairments. The current impairment is assessed and the pre-existing impairment is assessed and the latter is deducted from the former to give the impairment resulting from the injury caused by the accident. The clause requires there to be evidence of a pre-existing symptomatic permanent impairment and not just a pre-existing symptomatic condition.
In her right and left shoulders, Ms Carr had previous symptoms and has been investigated and was treated prior to the motor accident. However, there is no mention in the pre-accident records of any left or right shoulder range of motion measurements and no physiotherapy records which might assist the Panel in calculating a pre-existing impairment. The claimant reported her activities of daily living and ability to care for her partner were not affected by her previous condition. As the Panel has no reliable evidence upon which we could accurately calculate any pre-existing impairment, no deduction will be made.
Skin and scarring
The claimant says she has scarring associated with the surgery on her left shoulder. The claimant says that the need for this surgery was caused by or materially contributed to by the accident. The insurer has paid for the surgery.
The AMA 4 Guides provide in Chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between
0-9% and class 5 which attracts a WPI of between 85 and 95%. It is the Panel’s view that Ms Carr’s scarring falls within class 1 because the signs and symptoms are minimal, there is no limitation of her activities as a result of the scarring and no treatment is required
Because class 1 contains a relatively wide range of percentage impairments, the Guidelines provides for the TEMSKI in Table 6.18.
There are 10 criteria to be applied. Medical Assessors are required to assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. A skin impairment will usually meet most, but does not need to meet all criteria to best fit a particular impairment category.
The 10 criteria and their application to Ms Carr’s scars is set out below.
TEMSKI CRITERIA as per the table
Relevant Evidence
Rating
Consciousness
Ms Carr is conscious of the scars
1
Colour Match
The scars are well matched with surrounding skin and are difficult to see
0
Ability to locate
Ms Carr is able to easily locate the scars
1
Trophic changes
There are no trophic changes
0
Visibility of staple or suture marks
The staple or suture marks are barely visible
0
Anatomical location
The claimant was wearing a sleeved shirt and the scars were not visible. In a shorter sleeved top, the scars would be visible
1
Contour defect
The scars though small are slightly raised there is a minor contour defect
1
Effect on any activities of daily living
The scars do not impact the claimant’s activities at all
0
Treatment
The claimant is having no treatment for the scars
0
Adherence
The scars do not adhere to any underlying structures
0
The Panel is of the view that the best fit for the claimant’s left shoulder scarring is 0%.
CONCLUSION
The permanent impairment assessed by the Panel is as follows:
(a) cervical spine 0% DRE category I;
(b) lumbar spine 0% DRE category I;
(c) left knee no assessable impairment;
(d) right knee no assessable impairment;
(e) left shoulder 1%;
(f) right shoulder 5%, and
(g) scarring 0%.
The total WPI is therefore 6%. This results in a different outcome to Medical Assessor Kuru’s and therefore his certificate must be revoked.
Attachment A
| Left Shoulder | Dr Bentivoglio 12 May 22 | Dr Poplawski 18 May 23 | Dr Bentivoglio 22 Jan 24 | MA Kuru 14 Mar 24 | Review Panel |
| Flexion (180) | 155 | 80 | 145 | 90 | 170 |
| Extension (50) | 50 | 10 | 55 | 30 | 40 |
| Abduction (180) | 170 | 60 | 145 | 100 | 180 |
| Adduction (50) | 50 | 20 | 60 | 20 | 50 |
| Int rotation (90) | 80 | 20 | 60 | 80 | 80 |
| Ext rotation (90) | 80 | 60 | 80 | 30 | 90 |
| Right Shoulder | Dr Bentivoglio 12 May 22 | Dr Poplawski 18 May 23 | Dr Bentivoglio 22 Jan 24 | MA Kuru 14 Mar 24 | Review Panel |
| Flexion (180) | 155 | 180 | 145 | 120 | 130 |
| Extension (50) | 45 | 50 | 55 | 30 | 40 |
| Abduction (180) | 160 | 180 | 160 | 80 | 120 |
| Adduction (50) | 50 | 50 | 60 | 20 | 50 |
| Int rotation (90) | 80 | 80 | 60 | 80 | 70 |
| Ext rotation (90) | 80 | 80 | 70 | 30 | 80 |
0
0
0