AAI Limited t/as AAMI v Davies
[2024] NSWPICMP 231
•15 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Davies [2024] NSWPICMP 231 |
| CLAIMANT: | Rodney Davies |
| INSURER: | AAI Limited trading as AAMI |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 15 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; Claimant suffered injury in a motor vehicle accident on 25 May 2017; Medical Assessor (MA) determined whole person impairment (WPI) at 12%; MA diagnosed physical injuries caused by the accident; supraspinatus tendon tear left shoulder and soft tissue musculoligamentous injury to the cervical spine; Medical Review Panel determined a DRE I classification of the cervical spine and a 6% upper extremity impairment of the left shoulder; Review Panel assessed WPI at 4%; Held – the certificate of the MA was revoked, and a replacement certificate issued; WPI is not greater than 10%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Medical Review Panel revokes the Certificate of Medical Assessor Rapaport dated 6 May 2023, and instead certifies the injuries caused by the accident give rise to a permanent impairment which is not greater than 10% whole person impairment (WPI). |
STATEMENT OF REASONS
INTRODUCTION
On 25 May 2017, Mr Rodney Davies (the claimant) was at the controls of his truck with a trailer attached. The vehicle was stationary, waiting to make a right-hand turn, when another vehicle collided with the rear of the trailer at speed, resulting in two impacts, the first due to the initial impact, the second to the trailer being lifted up.
Mr Davies states that he came out of his seatbelt with the impact and hit the dashboard with his left shoulder.
Police and ambulance attended the scene.
Mr Davies was able to drive the truck and trailer off the road after which a workmate drove him to the Mater Hospital where he was assessed for a few hours and discharged.
Mr Davies alleges that the motor accident caused various physical injuries.
The issue in this medical dispute is whether Mr Davies “degree of permanent impairment as a result of the injuries caused by the motor accident is greater than 10% whole person impairment (WPI)”. This constitutes a medical dispute within the meaning of the Motor Accidents Injuries Act 2017 (MAI Act).
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Rapaport and dated 6 May 2023 (the medical assessment). The Medical Assessor assessed the degree of permanent impairment at 12% whole person impairment (WPI). The details of that assessment are set out later in these Reasons.
THE REVIEW
The President referred the medical assessment to the Review Panel as he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020(the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
12.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of new assessment of all matters with which the medical assessment is concerned.
The parties otherwise filed bundles of documents, for the Review Panel’s consideration.
CAUSATION
Guidelines
With respect to causation, (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. 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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The “but-for” test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
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.
6.7 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.”
Submissions of the insurer of 27 June 2023
The Review Panel briefly summarises the submissions by reference to paragraph number:
[4] The insurer submits that Medical Assessor Rapaport's certificate contains a material error in relation to his assessment of a 7% WPI in the left shoulder.
[5] Clause 1.51 of the Motor Accident Permanent Impairment Guidelines provides that if the contralateral uninjured joint has a less than average mobility, the impairment serves as a baseline and is subtracted from the calculated permanent impairment of the injured shoulder.
[6] The insurer submits that the Medical Assessor should have measured and recorded any restricted ranges of motion of the contralateral right shoulder to determine whether any assessable Upper Extremity Impairment (UEI) in the right shoulder should be subtracted from the 11% UEI in the left shoulder. If there is an assessable UEI in the right shoulder, it could materially affect the assessment of a combined 12% WPI.
Submissions of the claimant in reply of 1 August 2023
The Review Panel briefly summarises the reply submissions by reference to paragraph number:
[6] The claimant asserts that Medical Assessor Rapaport has not erred in a material respect and the Certificate should remain binding on the parties.
[8] Dr James Bodel (orthopaedic surgeon) in his reports dated 17 June 2019 and 25 August 2021 commissioned on behalf of the claimant and provided in the Application filed on 21 February 2022 found no restriction in the active range of motion the right shoulder as evidenced by the following table:
Shoulder Movements Standard Right Shoulder Active ROM in accordance with AMA4 Right Shoulder Active ROM from Dr Bodel Report dated 17 June 2019 Right Shoulder Active ROM from Dr Bodel Report dated 16 August 2021 Flexion 180 180 180 Extension 50 50 50 Adduction 50 50 50 Abduction 180 180 180 Internal Rotation 90 90 90 External Rotation 90 90 90 [9] The claimant submits that Medical Assessor Rapaport was not on notice of any restriction that may have existed in the right shoulder, and was therefore not required to make a finding in relation to same in accordance with Section 1.31 of the Motor Accident Impairment Guidelines
[10] The claimant submits that Medical Assessor Rapaport is only required to assess the contralateral uninjured joint of the claimant if there is less than average mobility in the contralateral uninjured joint. Medical Assessor Rapaport discussed with the claimant’s the use of his right arm (“…favours his right upper limb when carrying shopping bags…”) and had the opportunity to observe the claimant’s right shoulder during the examination of the cervical spine (“There was tenderness to palpation over the left trapezius muscle above the shoulder.” and “Power and muscle tone were normal in both upper extremities and the biceps and triceps deep tendon reflexes could be readily elicited and were symmetrical.”)
[13] The claimant submits that Medical Assessor Rapaport clearly did not find the uninjured joint, being the right shoulder, was suffering from less than average mobility and this was within his rights to form his own opinion in accordance with the decision of Lemming JA in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA (Keen).
[15] The decision of Lemming JA in Keen confirms that when conducting a medical assessment such as Medical Assessor Rapaport was required to do, he is to form his own opinion based on his medical experience and expertise:
[40] The function of the Medical Assessor is quite different. The assessor was obliged following the referral by State Insurance Regulatory Authority (SIRA) to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[15] The claimant submits that Medical Assessor Rapaport is not required to find why he would not report on the right shoulder.
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a supraspinatus tendon tear to the left shoulder and a soft tissue musculoligamentous injury to the cervical spine and assessed permanent impairment at 12%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Review Panel’s consideration.
The summary of the documents relied on by Medical Assessor Rapaport was set out in paragraphs 5, 18 and 19 of his Reasons.
The documents to which the Review Panel had access and which it considered, is summarised in [18] of the Medical Asessor’s Reasons:
“The police report indicates that the subject motor accident was a major traffic crash. Mr. Davies had immediate left shoulder pain that continued and was unresponsive to physiotherapy treatment. MRI evaluation of the left shoulder indicated a left rotator cuff tear and arthroscopic shoulder repair was undertaken within approximately two months of the traffic crash.
Although his operating surgeon had indicated in written communication with the referring GP that the left shoulder injury had resolved, Mr. Davies felt that his left shoulder function was not as it had been pre-injury, and he continues to have difficulty lifting with his left arm.”
REVIEW OF MEDICAL ASSESOR’S DETERMINATION
Medical Assessor Rapaport took a history of the motor accident and noted the speed of the vehicle which collided with the trailer, was estimated to be 80Kph. He noted that on impact, Mr Davies was pushed forward from his seat, restrained by his seatbelt, but with the secondary impact, this caused him to slide beneath the seatbelt and his left shoulder impacted the dashboard.
The history continued that the secondary impact was produced as the car caused the trailer to be momentarily airborne after it slipped beneath it and the trailer landed on the bonnet of the car as it came to the ground.
The Medical Assessor was told that there was extensive damage to the trailer, causing its rear axle to be broken, bending its chassis and the ring feeder that connects the truck to the trailer. The truck that Mr. Davies had been driving had its engine mounts damaged and the truck chassis was bent. The trailer damage was too extensive to repair and was written off.
Mr Davies told the Medical Assessor that sliding beneath the seat belt and impacting his left shoulder, he felt an immediate sharp pain that radiated from the top of the shoulder to his left elbow.
Medical Assessor Rapaport then set out the history of the symptoms and treatment following the accident, noting that the left shoulder pain continued without improvement. Mr Davies was referred for an MRI which resulted in a diagnosis by the orthopaedic surgeon Dr Kumar, who performed an arthroscopic left shoulder reconstruction on 31 July 2017. The claimant had subsequent immobilisation in a sling for 6 weeks, and further physiotherapy before returning to work. The claimant was initially on light office duties for a month, then on limited hours with only limited local driving.
The Medical Assessor also referred to the development of memory loss and psychiatric symptoms leading to a referral to a psychiatrist and to a diagnosis by Dr Bandari of post-traumatic stress disorder.
Medical Assessor Rapaport went on to recount the claimant’s current symptoms of stiffness in his left shoulder, avoidance of using his left upper limb and favouring his right.
Medical Assessor Rapaport attended to the physical examination, the results of which are set out in paragraph 14, arriving at a conclusion of a left shoulder total upper extremity impairment (UEl) of 11% converting to a WPI of 7%.
Medical Assessor Rapaport arrived at 5% WPI for the cervical spine, arriving at diagnostic-related estimates (DRE) II applying 6.124-6.153 of the Motor Accidents Guidelines 2023, giving the total of 12% WPI.
Diagnosis/ Causation
Reasons
Medical Assessor Rapaport arrived at a determination that the left shoulder supraspinatus tendon and inferior labrum tear were causally related to the accident by reason of the:
“…nexal connection between the accident and onset of symptoms. There was an immediate complaint of left shoulder pain and dysfunction following the accident and a reasonable improvement and partial restoration of left shoulder function post arthroscopic left shoulder surgery. There is also a history given by the claimant of a direct impact by the left shoulder onto the dashboard…”
Medical Assessor Rapaport continued that the soft tissue cervical spine injury was consistent with the symptoms complained of by the claimant post the accident and there was a plausible mechanism of injury through an acceleration/deceleration force associated with the major traffic collision.
The Personal Injury Claim Form
Mr Davies completed the form.
The general practitioner, Dr Chris Taylor of Andrew Nash Clinic Wallsend, examined Mr Davies on 2 September 2018 and certified that he had diagnosed left shoulder rotator cuff tears, full thickness tear of the left supraspinatus and a left biceps tendon tear.
Dr James Bodel, orthopaedic surgeon, in a report of 17 June 2019, examined Mr Davis noting that the active range of movement in the left shoulder as compared to the right was as set out in the table that appears below.
Shoulder Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 180° 140° Extension 50° 40° Adduction 50° 20° Abduction 180° 120° Internal Rotation 90° 60° External Rotation 90° 60°
Further, Dr Bodel found impingement in the left shoulder but no instability.
Dr Bodel, referred to the MRI of the cervical spine of 8 June 2017, which showed:
"…There is focally advanced degenerative disc disease, moderate in degree at C4/5 and C5/6. There is mild reversal of the cervical lordosis at this level. There is mild degenerative change elsewhere, maximal at C6/7 and C3/4. The cervical spine is otherwise normally aligned. No fracture subluxation. Vertebral body height is maintained. No intra or extra dural mass lesion or collection. No signal abnormality in the cord.
At C4/5, there is a mild broad based disc osteophyte complex flattening the ventral thecal sac without cord compression. Associated uncovertebral spurring results in mild foraminal narrowing bilaterally without evidence of impingement.
At C5/6, there is a mild broad based disc osteophyte complex flattening the ventral thecal sac without cord impingement Associated uncovertebral spurring results in bilateral foraminal narrowing, moderate in degree slightly greater on the right, with potential impingement on the existing C6 nerve root here.
No significant disc bulge or spinal canal or foraminal stenosis is demonstrated at the remaining levels...”Dr Bodel also referred to the MRI of the left shoulder, dated 25 July 2017:
“…15 x 15mm high grade partial tear of supraspinatus tendon.
Severe tendinopathy of long head of biceps tendon.
5mm partial tear subscapularis tendon.
Tear of the anterior inferior labrum from the 4-6 o’clock position…”Dr Bodel referred to the report of the ultrasound of the left shoulder of 29 May 2017, interpreted as showing:
“…Supraspinatus tendinopathy.
Some deltoid bursitis.
Painful impingement on abduction…”Dr Bodel also referred to the report of the ultrasound of the left shoulder of 15 June 2017, showing:
“…Partial thickness 14 mm anterior supraspinatus tear
Suspected adhesive capsulitis…”Dr Bodel was asked to assess WPI, and he was of the opinion that the claimant had a DRE Cervicothoracic Category II Impairment, in accordance with the description in Table 73 on page 3/110 of AMA 4, noting that he had asymmetry of movement and guarding but no clinical sign of radiculopathy. There was 5% WPI.
Dr Bodel further was of the opinion that the claimant has a ratable restriction of left shoulder movement assessed using Figure 38 on page 43, Figure 41 on page 44 and Figure 44 on page 45 of AMA 4. The degree of recorded restriction of movement constituted a 10% UEI, converting to a 6% WPI for the left upper extremity.
Dr Bodel concluded that the level of WPI was 11% using the Combined Values Chart on Page 322 of AMA 4.
Dr Bodel examined the claimant again and reported on 25 August 2021, that Mr Davies level of whole person impairment had not altered.
On 27 July 2022, Dr Chris Harrington reported on the request of Rankin Ellison Lawyers, for the medicolegal examination on 18 July 2022.
On examination, Mr Davies had reduced movement of the left shoulder and had lost about half of the normal range of glenohumeral movement. With his arm by his side, he had only about 10 degrees of external rotation, against 30 degrees on the other side. He cannot reach his right acromioclavicular (AC) joint, just reaching his head, behind his back, probably just past the sacroiliac region. Actively, he had flexion to 120 degrees, extension to 30 degrees, abduction to 100 degrees, adduction to 20 degrees, external rotation to 60 degrees and internal rotation to 40 degrees.
He had a full range of movement of his right shoulder.
Movements of the claimant’s neck were a bit uncomfortable. He had a symmetrical range of movement in rotation and lateral bending. He probably lacked about 10 degrees of rotation to both sides. Flexion/ extension were full.
Dr Harrington was of the opinion that the claimant had some limited movement of his neck at the extremes, due to the whiplash injury which had aggravated pre-existing cervical spondylosis.
Mr Davies was diagnosed with impingement and tendinopathy of the left shoulder, which required surgery. He now has reduced strength and stamina, quite normal after surgery.
He believed that the ongoing symptoms were caused by the motor accident.
Dr Harrington was asked to assess WPI. As to the cervical spine he assessed at 0%, citing Chapter 15 Table 15.5 DRE I. As to the shoulders, Mr Harrington gave an impairment of 8% WPI for the right shoulder (the left shoulder was the body part being assessed).
On 15 November 2021, Dr Andrew Keller, occupational physician, reported on the request of the insurers’ solicitor.
On physical examination, Mr Davies demonstrated a full symmetrical range of motion in the cervical spine without spasm or signs of radiculopathy.
In the right shoulder, he demonstrated flexion to 160 degrees, extension 40 degrees, adduction 40 degrees, abduction 160 degrees and internal and external rotation 90 degrees.
Dr Keller was of the opinion that Mr Davies appeared to have suffered a soft tissue injury to the left shoulder, treated with a rotator cuff repair in 2017.
He was of the opinion that given when Dr Kumar reviewed Mr Davies on 30 January 2018, he was noted to have a full range of movement in his left shoulder, without pain. The effects of the accident in respect of the left shoulder, had ceased.
On prognosis, Dr Keller was clear that Mr Davies had recovered from the physical effects of the accident by January 2019, as reported by his treating surgeon.
Having determined that Mr Davies’ injuries had resolved, Dr Keller considered that there was 0% WPI, in respect of both areas.
Medical assessment by the Review Panel
Mr Davies was examined by Medical Assessor Moloney, on 14 February 2024.
Medical Assessor Moloney took a pre-accident history, a history of the motor accident consistent with what is set out above and a history of subsequent events, including treatment; the arthroscopic repair of the left shoulder with the subacromial decompression, rotator cuff repair and biceps tendodesis, all by Dr Kumar on 31 July 2017.
Mr Davies told Medical Assessor Moloney that he returned to light duties initially for a month, and then recommenced truck driving but then developed psychological symptoms while driving and consulted a psychiatrist who terminated his heavy truck driving licence. Since then, Mr Davies had undertaken some volunteer work and had been under continuing care of his psychiatrist, Dr Bandari.
Current symptoms
Mr Davies told Medical Assesor Moloney that he gets left shoulder pain whenever he abducts the shoulder above shoulder height and due to this, tends to favour his right arm. He has disturbed sleep if he lies on his left shoulder but also sleeps poorly due to the post-traumatic stress disorder since the accident. At present, he has no neck pain and no referral of pain down the arms. He is able to do some gardening such as mowing the lawn and drive short distances. He is able to walk without difficulty and continues to do his volunteer work which includes meals on wheels and attending the nursing home. He also rides a motorbike once a week for recreation.
Current treatment
Present medication is fluoxetine 20mg to a day, Seroquel 25mg at night and a blood pressure medication. He takes no analgesics at present.
No manual therapy is undertaken but he does home stretches with Therabands. He consults his general practitioner when necessary and has follow-up with his psychiatrist.
Clinical examination
Mr Davies walked into the medical suite with a normal gait and stated that he is right-handed. His height was measured at 174cm and weight 116kg. He sat comfortably during the interview and examination.
Cervical spine
On palpation of the cervical spine, there was tenderness at the cervicothoracic junction and lateral left trapezius muscle but no guarding or spasm was noted. On testing range of were movement, flexion/extension was 80% of expected range, side bending and rotation 70% of expected range bilaterally with no asymmetry.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes noted. No muscle wasting was apparent with the circumference of the upper arms 33cm bilaterally (10cm above the olecranon process) and in the upper forearms 29cm bilaterally (5cm below the olecranon process).
Shoulders
On inspection of the shoulders, no wasting was apparent and on palpation tenderness over the left acromioclavicular joint. There were also tender spots in the left infraspinatus muscle bulk and anterior left chest wall. Impingement tests were negative. Active movement was measured using a goniometer and repeated.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 170° 140°= 3% UEI Extension 40° 40°= 1% UEI Adduction 50° 40°= 0% UEI Abduction 160° 140°= 2% UEI Internal Rotation 80° 80°= 0% UEI External Rotation 90° 80°= 0% UEI
Scarring
There was a 4cm surgical scar over the left shoulder which is pale and does not concern him. There are no trophic changes with no sutured marks and no contour effects and no effect on any activities of daily living. The scar is not clearly visible with his usual clothing. Classification of best fit using the Temski chart is 0% WPI.
Conclusion
There had been some improvement in the range of movement of the left shoulder since the previous examination by Medical Assessor Rapaport, but on testing on 14 February 2024, there was no inconsistency. The result of the clinical examination of the left shoulder was 6% UEI (using figures 38, 41 and 44 of AMA 4) which converted to 4% WPI using Table 3 of AMA 4.
At the time of examination, there was no dysmetria of the cervical spine and therefore a classification DRE I which is 0% WPI. There were no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs with no guarding or spasm noted on palpation of the cervical musculature.
The Medical Review Panel considered that the injury to the left shoulder and cervical spine were causally related to the subject accident.
The Medical Review Panel revokes the Certificate of Medical Assessor Rapaport dated 6 May 2023, and instead certifies the injuries caused by the accident gave rise to a WPI which is not greater than 10%.
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