AAI Limited t/as AAMI v Myers

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Myers [2023] NSWPICMP 149
CLAIMANT:	Elise Rebekah Myers
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	18 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical review under section 63 of whole person impairment (WPI) assessment; rear-end collision and further assessment by Medical Assessor; WPI of 11%; injuries to spine, both shoulders and both hips alleged; issue of causation in relation to all; claimant admitted pre-accident symptoms in back an hips; Held – injuries to cervical, thoracic and lumbar spine caused by the accident attracting 0% WPI; no injury to shoulders in the accident, but referred pain to left shoulder caused restriction of movement; inconsistent on measurement and 2% WPI; left and right hip not injured in accident but referred pain from lumbar spine injury might have caused some restriction early on but any restriction now not due to accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Tamba-Lebbie dated 5 July 2022. 2. Certifies that the degree of Elise Myers’ permanent impairment resulting from the injuries caused by the motor accident on 20 November 2017 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 20 November 2017, Elise Myers was driving her car in Epping when a vehicle ahead of her stopped suddenly. She was able to stop her car in time but the car travelling behind her did not, and a rear end collision occurred.
Ms Myers made a claim against AAMI, the third-party insurer of the vehicle that ran into her car.
A medical dispute has arisen in connection with the claim about whether the claimant had a whole person impairment (WPI) greater than 10%. The claimant referred the dispute to the Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA). On 23 February 2020, Medical Assessor Bodel issued a certificate of determination saying that the claimant had a WPI of greater than 10% (15%) in respect of injuries to her neck, lower back and left shoulder.
The insurer lodged an application for further assessment with the Personal Injury Commission (the Commission).[1] In June 2021 the further assessment was allowed, and the proceedings were allocated to Medical Assessor Tamba-Lebbie. That Medical Assessor certified on 5 July 2022 that the claimant had a WPI of 11% in respect of injuries to the left shoulder, right shoulder, left hip and right hip.
[1] SIRA’s MAS was abolished when the Commission was created.
The insurer lodged an application for review of that decision and on 29 August 2022, a delegate of the Commission determined there was reasonable cause to suspect a material error in the assessment.
On 22 November 2022, the President convened this Panel to conduct the review.

LEGISLATIVE FRAMEWORK

General

Ms Myer’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act and are limited to a maximum amount in accordance with s 134.[2] Entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
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.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Bodel’s, further medical assessments such as Medical Assessor Tamba-Lebbie’s and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.

Spinal impairment

Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed.[6]
[6] Clause 1.111 of the Guidelines.
The spine is divided into three regions, cervicothoracic, thoracolumbar, and lumbosacral. [7] 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.[8]
[7] Clause 1.131 of the Guidelines.
[8] Clause 1.119 of the Guidelines.
There are five diagnostic related categories and a number of indicia provided for each category.[9]
[9] Table 7 of the Guidelines.
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. DRE category II requires there to be:
(a)   pain with guarding; or
(b)   non-uniform range / restriction of motion – dysmetria, or
(c)   non-verifiable radicular complaints which is defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires radiculopathy which is defined in cl 1.138 as follows:
“Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that radiculopathy is present, two or more of the following signs should be found:
1.138.1loss or asymmetry of reflexes …
1.138.2positive sciatic nerve root tension signs …
1.138.3muscle atrophy and/or decreased limb circumference …
1.138.4muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
1.138.5 reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
If any impairment to the shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[10] (the Nguyen principle) that impairment must be assessed, and its value included in the determination of the claimant’s total WPI. A similar concept applies if for example an injury to the lower back results in an impairment to the lower limbs.
[10] [2011] NSWSC 351.

Shoulder impairment

The assessment of upper extremity impairment (UEI) is governed by Chapter 3 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a)   flexion and extension;
(b)   abduction and adduction, and
(c)   internal and external rotation.
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 which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.

ASSESSMENT UNDER REVIEW

The claimant has provided a copy of the President’s delegate’s decision in respect of the further assessment. The insurer’s application for further assessment was made on the basis of records from the claimant’s property damage file, a biomechanical engineer’s report (Dr McIntosh) and a report from Dr Smith.
The parties listed the following injuries to be assessed:
(a)   cervical, thoracic and lumbar spine;
(b)   left and right shoulder;
(c)   left lower limb, and
(d)   left hip and right hip.
Medical Assessor Tamba-Lebbie assessed the claimant on 21 June 2022 and issued his certificate on 5 July 2022.
The Medical Assessor took the following history from the claimant:
(a)   she was fit and healthy at the time of the accident and working as a fitness and dance instructor;
(b)   she has just finished her Master’s degree in teaching;
(c)   her airbags did not deploy after the accident, the car that hit her from behind did so “at speed”. Her car remained driveable;
(d)   the claimant had immediate pain in her neck, shoulder and lower back and went to see her doctor that day;
(e)   X-rays were done in 2018, and
(f)    the claimant was not referred to any specialists and took over the counter medication.
The claimant said that her current symptoms were pain in her neck and lower back. She described left lower back pain, weakness in her legs and her left sided balance was worse. She further described left sacroiliac pain with radiating pain to the back of the left leg.
The claimant had physiotherapy and exercise physiology.
The claimant said her left shoulder pain started immediately after the accident closer to the thoracic spine and was made worse with movement. She said she had weakness in her left arm and that she felt this is coming from her neck. She also reported intermittent pain in the right shoulder.
Ms Myers told Medical Assessor Tamba-Lebbie that she has left groin and hip pain and right hip pain without groin pain.
On examination the Medical Assessor records:
(a)   normal strength in the upper limb with normal reflexes;
(b)   cervical spine extension was limited along with flexion. Left and right rotation were restricted but equal – there was no dysmetria;
(c)   there was no spasm in the neck muscles or guarding;
(d)   the thoracic spine was normal;
(e)   the lumbar spine showed no muscle guarding dysmetria or other non-verifiable radicular complaints. There were normal reflexes in the lower limb;
(f)    shoulder movements were restricted, left more than right, and
(g)   hip movements were restricted, left more than right.
In terms of causation, the Medical Assessor said: “the injuries included above were likely a result of the motor vehicle accident suffered by the claimant”.
He assessed WPI at a total of 11% as follows:
(a)   cervical, thoracic and lumbar – DRE I – 0% for each segment of the claimant’s spine;
(b)   left shoulder 5%;
(c)   right shoulder 2%;
(d)   left hip 2%, and
(e)   right hip 2%.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer filed submissions in support of the application for review dated

1 August 2022. The insurer argues:
(a)   in its submissions in support of the application for further assessment, the insurer asserted that causation of all the claimant’s injuries was in dispute;
(b)   Medical Assessor Tamba-Lebbie accepted the causation without providing any real reasons in support of that finding;
(c)   while he listed the documentation but did not engage with it, in particular the reports of Dr McIntosh and Dr Smith which directly placed causation and credit in issue;
(d)   the Medical Assessor noted inconsistencies but did not discuss it before determining the injuries and impairment, and
(e)   Medical Assessor Tamba-Lebbie has referred throughout to the wrong legislation although he appears to have applied the correct Guidelines.
The insurer provided further submissions dated 21 December 2022 saying:
(a)   the claimant has been examined by a Dr Burke but has not served his report which suggests that an inference could be drawn that Dr Burke was of the view the claimant had a WPI of less than 10%;
(b)   a physical examination is necessary, and
(c)   updated documents from treating practitioners are required as no additional medico-legal evidence has been provided since May 2021.
The insurer confirmed that impairment, causation, exacerbation and apportionment is in issue in all parts of the claimant’s body she says she injured in the accident. The insurer further submits:
(a)
cervical spine – the insurer refers to the varying ranges of rotation in the neck and says there is a dispute about causation of any reduction in motion between shortly after the accident, the Brisbane Spine clinic findings and

Dr Low’s findings;
(b)   thoracic and lumbar – the claimant has disclosed pre-accident lower back pain, notes there are pre-existing degenerative changes in the spine and says causation of any lower back impairment is in issue. The insurer points to inconsistency in findings shortly after the accident and the degree of the claimant’s lack of motion now;
(c)
left and right shoulders – the insurer says neither shoulder is mentioned in the claim form and that the physiotherapy notes suggest the first complaint of right shoulder pain was 3 October 2018 and the left shoulder,

1 November 2018 and both are said to be after the claimant performed housework. The insurer points to other records and notes there have not been any radiological investigations undertaken of either shoulder. The insurer summarises the measurements of shoulder motion over time noting in particular that Body Solution Physiotherapy and Brisbane Spine clinic suggests there was normal motion on both sides. The insurer says Dr Smith suggested the claimant was “manufacturing” symptoms;
(d)   neither Medical Assessor Bodel in February 2020 or Dr Low for the claimant in February 2021 found any restriction in the right shoulder – Medical Assessor Tamba-Lebbie is the first practitioner to find any restriction in that area, and
(e)   hips – the claim form does not refer to hips, Medical Assessor Bodel found no impairment in the hips and Dr Low did not refer to a hip injury. The claimant told an occupational therapist she had always had stiffness in her left hip and was unsure of the relationship between her left hip symptoms and the accident.

Claimant’s submissions

The claimant says in response:
(a) Medical Assessor Tamba-Lebbie listed all the document including the reports of Dr McIntosh and Dr Smith therefore he must have considered them, and
(b) the Medical Assessor was not required to give reasons to the standard of the court and must explain his reasons. He has clearly found the injuries were likely to be caused by the accident which is sufficient reasoning.

Procedural matters

On 2 December 2022 the Commission issued directions for the parties to provide a bundle of documents, and these documents have been provided.[11]
[11] The claimant’s bundle is document AD2 in the Commission’s electronic file (138 pages) and the insurer’s bundle is AD3 (415 pages) and a further bundle of medical records AD4 (187 pages).
The Panel met on 16 January 2023 and reported to the parties that “unless the claimant concedes an injury is not caused by the accident or an injury has resulted in a 0% WPI, the Panel intends to assess all of the injuries alleged by the claimant”.
The Panel received no further submissions from either party.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claim form was signed and dated 26 February 2018, three months after the accident. The claimant says she heard the cars in front braking and tires screeching so she “slammed on my brakes”. Although wearing a seat belt she says she was thrown forward.
The claimant marked up the pain diagram (the diagram on the left at paragraph 43) on the claim form suggesting the whole of her spine and the left buttock were injured. She specifically mentions:
(a) whiplash ongoing issues with lower back and SI [sacroiliac] joint pain – affecting neck and lower back particularly left lower back and SI joint, and
(b) anxiety while driving and in general.
Ms Myers says in answer to a question about pre-accident injuries and conditions that she had “some general lower back pain, tight muscles from fitness, not serious” and that the last time she saw a physiotherapist for tight muscles in her back was

2 May 2016. The claimant also referred to an instance of previous anxiety having been a bystander at a traffic accident and providing first aid to a child who died.
The pain diagram in the medical certificate attached to the claim form (the diagram on the right) has only the lower back shaded. Dr Tsuie signed the certificate and dated it 23 February 2018. He says the claimant’s first consultation in the practice was on the day of the accident and he diagnosed “low back pain. Tenderness over left paravertebral muscles” and advised physiotherapy.

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Treating medical records and reports

General practitioners

The North Epping Family Practice have produced their notes which reveal:
(a)   20 November 2017 – Dr Tsuie – the claimant’s car was run into from the rear, but her airbags were not activated. She reported feeling pain initially but had a good range of motion. There was no midline tenderness, but she was tender across the trapezius with spasm. He noted no other injury and diagnosed whiplash;
(b)   15 December 2017 – this entry concerns lower back pain from the car accident “started a week after the original accident”. The claimant reported pain when sitting and lifting and with certain movements. She reported pain at extremes of lumbar motions but had a full range of motion, and
(c)   23 February 2018 – Dr Tsuie completed the claim form relating to the injuries but did not see the claimant in order to do so.
After the claimant returned to Queensland, she attended the Rochedale South Medical Centre. Their records show:
(a)   28 February 2018 – Dr Kortoci – the claimant had moved from Sydney. The claimant refers to the car accident and the car accident that she had witnessed four years before and thought her anxiety had been triggered and she was advised to return for a mental health plan;
(b)   5 March 2018 – the mental health plan was developed with a referral given to Dr Katie Trickey;
(c)   21 March 2018 – no accident-related matters mentioned;
(d)   13 and 28 June 2018 – no accident-related matters mentioned;
(e)   5 July 2018 – lost her job as she was being pressured to work more hours that were not child friendly. The claimant was very stressed;
(f)    9 July 2018 – Dr Kortoci – the claimant gave a six-month history of ongoing lower back pain which was triggered after the car accident but had not been improving “the main problem seems to be the SI joint”;
(g)   19 September 2018 – Dr Hejazi – long consultation regarding lower back pain radiating into the left “glute” and getting worse. There is also mention of the anxiety and post-traumatic stress disorder. A Centrelink medical certificate was given and a referral for imaging provided;
(h)   11 October 2018 – Dr Hajazi – the claimant attended for the CT scan results and the claimant was advised to keep doing her physiotherapy;
(i)    22 November 2018 – work related issues (bullying) relationship issues (ended after 2 – 3 months). Chronic back pain since the car accident was reported and the claimant was receiving Centrelink benefits and experiencing financial stress;
(j)
9 July 2020 – Dr Hejazi – long consultation regarding spine, hip and shoulder symptoms since car accident. Also reference to mental health issues and requesting a mental health care plan which was prepared on

13 August 2020;
(k)   13 August 2020 – the claimant attended for a mental health plan and further counselling in similar terms to the February 2018 attendance;
(l)    20 October 2020 – telehealth consultation for ongoing pain mainly on the left side after a car accident. References to anxiety and post-traumatic stress disorder and request for a Centrelink certificate;
(m)     11 October 2021 – chronic back pain since car accident. Severe back pain since last week. Also, mental health issues;
(n)   7 June 2022 – finally finished studying is going to be a teacher but ongoing pain issue and anxiety and query whether she is a candidate for CBD oil, and
(o)   17 January 2023 – chronic neck and back pain for five years after car accident. Last CT was five years ago – getting worse in the last six months. No radiculopathy.

Radiology

On 19 September 2018, 10 months after the car accident, a lumbar spine CT scan was taken with a history of “chronic back pain radiating to left buttock” noted.
The results revealed an L4-5 posterior disc bulge and L5-S1 broad based prolapse with mild central thecal sac compression. The Panel notes there is no pre-accident radiology available for comparison.

Physiotherapy

All Sports physiotherapy first commenced treating the claimant on 18 January 2018 there is a history of “acute onset [left sided lumbosacral joint pain] last two days upon waking. There is a note of the car accident, the move to Brisbane and the claimant’s anxiety. There is also a “history of left shoulder injury”. The pain diagram only indicates lower back pain on the left side above and below the belt line. There are seven treatments and no mention of neck or shoulder pain that the Panel can ascertain.
The claimant relies on a report from Alex Ly Physiotherapist dated 7 August 2018. He records the claimant’s first attendance on 11 July 2018 and says that Ms Myers had four physiotherapy sessions. He noted main complaints of lower back (“left sided lumbar-pelvic-glute”) pain and shoulder pain (“bilateral upper trap and neck pain, with the left side being worse”). Further physiotherapy was advised.
Mr Hyun of the Brisbane Spine clinic provided a report dated 1 April 2021 noting that the claimant had attended for physiotherapy for “few years after a motor vehicle accident” for the management of neck and lower back pain. The records of treatment from this practice show Ms Myers’ first visit was 18 September 2018 with 72 treatments between then and 22 December 2021.
The Clem Jones Centre provided physiotherapy treatment to the claimant commencing 1 August 2019. At that attendance, the claimant noted chronic lower back pain issues since a car accident 18 months ago. Refers to “Cx [cervical] pain initially”. Then “has LBP [lower back pain] afterwards”. This pain “got worse to the point LBP was struggling to walk”. Two weeks ago, “acute episode of lower back pain teaching Zumba and reached / twisted – felt sharp pain / shooting”.
The claimant has also provided records from Gateway Physiotherapy clinic in Queensland. The claimant has had 14 treatments there from 2 February 2022 to

18 January 2023. The treatment appears to be for lower back pain, neck and upper trapezius / shoulder pain. The pain diagram completed on the first attendance has the left shoulder and left buttock area identified as the areas in pain.

Medico-legal reports

Dr Low an occupational physician provided a report to the claimant’s solicitors dated

10 February 2021. He appears to have found radicular complaints in the neck (dysmetria and guarding). In the back he also appears to have found a radicular complaint of guarding (but no dysmetria recorded). He recorded normal range of motion in the right shoulder but reduced motion in the left. He diagnosed a whiplash disorder with musculo-ligamentous injury to the thoracic and lumbar spine with left shoulder injury and ongoing restrictions in range of motion.
Dr Low did not provide an impairment assessment. Based on his findings, it is likely he would have assessed DRE category II (5%) for the neck and the back and 6% for the shoulder (the impairments to flexion and abduction total 10% upper extremity impairment which translates to a 6% WPI. All other movements were normal making a total of 15%.
The insurer has included correspondence which appears to confirm the claimant was examined by Dr Burke, an occupational physician but that the claimant does not rely on that report.
Dr Smith orthopaedic surgeon examined the claimant for the insurer and provided a report dated 19 March 2021. He took a history from the claimant of pain in the left side of the neck down to the shoulder blades on both sides and lower back pain with pain across the lower back and into the left buttock but not down the leg and not into the right buttock.
Dr Smith said he could not find anything objectively wrong and thought Ms Myers was manufacturing signs. He found no WPI.
Dr McGrath provided a report to the insurer dated 23 September 2021. The claimant told Dr McGrath she had immediate onset of neck, shoulder and back pain. She took over the counter medication and saw her general practitioner (GP).
She continued to have pain and stiffness in the left side of her neck, left shoulder and lower back but no arm or leg pain or numbness.
The claimant told Dr McGrath she worked as a fitness teacher in February then obtained work at a yoga studio in administration and teaching working for 25 hours a week. She started working at the Clem Jones Centre in September 2018 and began receiving treatment from them in 2019.
The claimant reported left jaw pain in April 2020 and in the past few months “weakness in her left elbow and left leg”.
On examination there was restriction of motion in the neck, but it was equal and therefore there was no dysmetria. There was restriction in both the right and left shoulder. The hip movements were full but with pain on right hip adduction.
Dr McGrath diagnosed soft tissue injuries to the neck and lower back which should have resolved within three months. She says:
“Ms Myers’ ongoing subjectively reported symptoms beyond this time frame are attributable to general constitutional mechanical postural factors, underlying degenerative disease and possibly anxiety which tends to magnify any somatic symptoms.”
Dr McGrath assessed WPI at 0%.

Biomechanical expert

Dr McIntosh a biomechanical engineer provided a report to the insurer dated

31 May 2021. He had medical reports and photographs of the two vehicles involved in the collision which showed:
(a) in respect of the insured vehicle there was “minor collision damage to the front”, the edge of the bonnet was deformed, and the bumper cover and grille was broken, and the airbags did not deploy, and
(b) the claimant’s vehicle was repaired at a cost of $4,845 including the replacement of the rear bumper cover, left and right rear bumper irons.
Dr McIntosh noted that at 15 – 18kmph airbags do not deploy, at 20 – 30kmph they can deploy, and they will definitely deploy at a speed of greater than 30kmph.
He formed the view that the closing speed in this accident was 15 – 20kmph with a change in velocity of between 10.7 and 14.3kmph.
Dr McIntosh cites research which suggests it is improbable that a whiplash injury would occur at a closing speed below 10 – 15kmph.
While he considered it plausible the claimant could have had a short-term injury to her neck, he thought it “very unlikely” to cause a neck injury with protracted symptoms. He noted the thoracic and lumbar spine were well supported by the seat and it was unlikely an injury would occur to the thoracic spine and “very unlikely” a lumbar spine intervertebral disc injury would have occurred. He notes that studies suggest less than 10% of occupants suffer an acute lumbar spine strain in a collision of similar severity. He considers there was no mechanism in the accident for a shoulder injury although acknowledges that shoulder pain and impairment can be related to neck injury, and he expresses a similar view about the hips. He says there is no source of direct or indirect blunt force to the hips.
There is no biomechanical expert’s report to answer any of the opinions expressed by Dr McIntosh. The Panel notes the claimant relies on no expert medical evidence other than a report from Dr Low whose report pre-dates that of Dr McIntosh and the claimant has obtained a report from Dr Burke but has not served it and does not rely on it.

Other assessments

Medical Assessor Bodel had a history of no previous physical problems but previous psychological issues. He has a consistent history of the accident.
The claimant told Medical Assessor Bodel she was shocked and aware of pain in the neck and between her shoulders after the accident (the Panel notes this is consistent with the initial attendance on Dr Tsuie). She said she self-medicated, but her pain increased, and she reported increasing lower back pain. She says she consulted her GP in September 2018, 10 months after the accident.
The claimant complained of lower back and left buttock pain, neck pain with left shoulder pain and stiffness and psychological issues. The panel notes the claimant did not complain of pain in either hip or right shoulder pain.
Medical Assessor Bodel examined the claimant and recorded:
(a)   neck – there was guarding but no spasm. There was asymmetry of movement. There was no wasting or reflex abnormality in the upper limb or any signs of radiculopathy;
(b)   thoracic spine – normal;
(c)   lumbar spine – there was tenderness and guarding but no signs of radiculopathy;
(d)   shoulders – there was some wasting and normal range of motion in the right shoulder but restriction on the left, and
(e)   lower limbs – no rateable restriction of movement.
Medical Assessor Bodel diagnosed soft tissue injuries to all body parts mentioned but found no impairment of the thoracic spine, lower limbs and right upper limb. He assessed 5% for the cervical spine, 5% for the lumbar spine and 6% for the left shoulder making a total of 15%.

RE-EXAMINATION FINDINGS

The claimant attended a re-examination with Medical Assessor Oates on

10 March 2023 unaccompanied having travelled from Queensland.

HISTORY GIVEN BY THE CLAIMANT

Pre-accident medical history and relevant personal details

Ms Myers said she has always been prone to discomfort and tight muscles in the neck which was mainly left sided, spreading to the left shoulder girdle. She also said that before the accident she had discomfort and tight muscles in the thoracic area and lower back after doing intensive exercises such as periods of push-ups in the course of her work, or lifting heavy things at home, but this discomfort would always settle down with a short course of physiotherapy. She said she had no previous problems with the shoulder joints or hips joints.
Before the accident, she had last attended Sports Physio at Epping in May 2016.
The Panel notes neither party have provided any records from before the accident including records from Sports Physio.
She had two caesarean sections in 2002 and 2004, and a third child was born by natural childbirth in 2007. Her general health is good, and she was on no regular medication.
She had attended the psychologist on and off since 2014 for anxiety after she had provided resuscitation first aid to a child at a motor vehicle accident scene and that child later died. This event still has a profound effect on her.
She is divorced and is living in a unit in Brisbane. Her 20-year-old child has moved out, her 18-year-old daughter now lives with her full-time, and her 15-year-old son lives with her half the time.
She used to do all the housework before the accident, but since the accident has been getting help at time from the children and her parents, who live in Brisbane. Her son does some of the weeding in the garden beds and there is no lawn to mow.
She does not smoke and has about one or two drinks a week. She is independent with personal care.
At the time of the accident, she worked as a fitness teacher and dance instructor, doing pilates and yoga after completing a Certificate III and Certificate IV in Fitness. She was building up a business but had intended to move to Brisbane and was in the process of closing down classes around the time of the accident.
She arrived in Brisbane, where her family lives, within a month of the motor vehicle accident. On the day of the accident, she cancelled an exercise class she was running and got her work partner to take over dance classes after this.
She retrained as a primary school teacher between 2019 to April 2022 and since then has worked part-time as a relief teacher in primary schools, five hours per day. She can manage at most three days a week. She did a stint of five days a week and had an increase in pain.

History of the motor accident

Ms Myers states she is right-handed.
She said on 20 November 2017 at about 3.00pm, she was travelling on Epping Road, which has a 70kmph limit, in a 2010 Corolla sedan with no passengers. She had a seatbelt on. She was on her way to pick up the children after school.
She had come to a sudden stop in traffic when she saw brake lights and heard the screech of brakes ahead of her, but a sedan following her rear-ended her at speed. She said there was a strong jolt. She was thrown forward and back, before the seatbelt tensioned. She does not recall any impact injury and was not knocked out. The airbags in her car did not deploy.
She felt her vehicle was pushed forward but does not know by how much. She did not hit the car in front but came very close to this. Her car was still driveable, and she and the other driver drove to a side street to exchange details. Her car was repaired but she does not know how much the repairs cost. Police and ambulance did not attend.

History of symptoms and treatment following the motor accident

At the time of the accident, she felt that something was “not right in her spine” from the neck to the lower back and within two hours, pain had come on mainly in the neck associated with stiffness, and then later on some low back pain.
She saw her GP at the time, Dr Tsuie in North Epping, about two hours or so after the accident complaining of neck pain and spasm. He advised ice, Nurofen and Panadol.
She cannot remember, but she thinks a friend went and picked up the children from school or they walked home.
The GP talked about physiotherapy, but this was put on hold as she was packing up and moving house at the time, preparing to return to Queensland.
At the next GP review on 15 December 2017, she reported low back pain which she said started about one week after the accident. The GP advised physiotherapy and anti-inflammatories.
She did her own exercises, as she was well acquainted with physical rehabilitation from her professional work.
Ms Myers said she was not able to continue working because of the physical nature of her duties, so she lived on the small property settlement she got from her divorce and applied for JobSeeker and eventually received this benefit.
She commenced physiotherapy after she had relocated to Queensland on

18 January 2018. By then, the main problem was the left lower back and into the sacroiliac joint. She said her neck problem was still present but more in the background at that time.
Because there was only partial improvement after several months of treatment, on

9 July 2018 she changed to a physiotherapist at Rochdale. They recorded complaints of low back pain, mainly left-sided, and bilateral upper trapezial and neck pain, left greater than right. She attended weekly.
From April 2018, she commenced work at a yoga studio which also involved some administration work, and she did lower intensity classes, but nevertheless this still flared up symptoms in her neck and back at times as before the accident. She left there after three months because she suspected inappropriate business practices.
Since then, she has had continuing low back pain radiating to the left buttock and after a flare-up of symptoms after simply bending to dust at home, she had a CT lumbar spine on 19 September 2018 showing a broad-based central L5/S1 disc prolapse with some contact with the descending S1 nerve roots.
She continued to have constant pain from the lower back to the left buttock but occasionally this pain would radiate to the posterior left thigh and leg, as far as the foot, with tingling in the left leg. The pain in the left buttock remained constant, particularly when she walked up stairs. She had occasional similar symptoms in the right leg, but it was not nearly as often as on the left side.
The last major flare-up was around Christmas time 2022, after she was cleaning at home, but she had worked five days in one week as a relief teacher to bolster her savings for the upcoming holidays, when she would not have any income. She feels she overdid things physically and at the time she was having difficulty controlling movement of her legs, and her daughter was on the verge of calling an ambulance at one stage. She improved with bed rest.
Her then GP, Dr Hejazi, ordered updated CT scan of the cervical and lumbar spines which were done on 19 January 2023. There were minimal degenerative changes in the cervical spine, with no neural compromise and no significant facet joint arthropathy. There was a slight L5/S1 central disc bulge with no neural compromise. There was no significant facet joint arthropathy and both sacroiliac joints appeared normal. The radiologist suggested a whole-body bone scan as an alternative imaging modality to consider.
She was then placed on a waiting list for assessment at the Spinal Unit at Princess Alexandra Hospital. The unit advised her that they will decide whether she needs MRI or further scans.
Her insurance benefits stopped around 2021, so she accessed physiotherapy under GP healthcare plans and paid for some treatments through her private health fund.
There have been no further injuries or accidents since November 2017.

Current symptoms

Ms Myers still has neck and low back pain radiating constantly to the left shoulder and occasionally to the right shoulder girdle and radiating to the left thoraco-scapular area with cervical headaches. She did have an episode of left jaw pain in around 2021. Dental check-ups revealed no abnormality and it was thought it was muscular in origin and it improved with dry needling and massage from Brisbane Spine Clinic physiotherapy.
She has constant neck pain towards the left shoulder girdle and upper arm, with decreased range of movement in the neck and left shoulder and tingling into the lateral aspect of the left arm and forearm. There are occasional symptoms towards the right shoulder girdle, but it has a better range of movement. It can lock up occasionally, but she is able to free it up herself. She cannot swim overarm with the left arm.
She has fairly constant low back pain radiating to the left gluteal area and intermittently in the left leg posterolateral to the foot with tingling. When the leg pain is acute, she finds it difficult to control her leg.
When she had the updated CT scan, she also had a range of screening blood tests which showed no abnormality apart from low normal iron and she takes iron supplement three times a week. The GP was looking for causes of her persistent fatigue, but none were found in terms of blood abnormalities. Nevertheless, she has to go and have a rest in bed when she gets home from a teaching day.
She cannot get to sleep because of left gluteal pain if she lies on her back and her left arm starts to become painful if she lies on her left side. She also has anxiety to do with road traffic in general and this increases the intensity of her pain.
As a schoolteacher of primary school children, she says she has to bend her head a lot more than in her previous job to check the children’s work at their lowset desks. Ms Myers says she feels this increases the neck discomfort and muscle spasm, as she has her head in this position for longer periods than the more dynamic movements which she would be able to adopt when she was teaching fitness classes. She has had an ergonomic setup of her keyboard and desk.

Current and proposed treatment

Ms Myers has physiotherapy and dry needling, which was three times a week during the acute flare-up and then reduced to once a fortnight. She follows the plan given to her by a pain management physiotherapist dating from about 2020. At that time time, the claimant was told to do exercises at a gym by one physiotherapist and the other one told her not to do exercises, but to concentrate on pain management strategies and coping mechanisms.
Ms Myers takes paracetamol on a regular daily basis and cannot get to sleep unless she has some at bedtime. She uses ice packs during acute flare-ups and heat otherwise. She does small range of movement exercises.

She takes Nurofen or codeine/paracetamol for acute flare-ups of her pain and only for short periods of time, as she gets gastric upset with Nurofen and did bring up blood on one occasion.

CLINICAL EXAMINATION

General presentation

Ms Myers came into the examination room with an appearance of a stiff neck and turned her upper body to make eye contact rather than turning her head. When she was leaving and turned around to say goodbye, she also turned her upper body rather than just the head.
Her height was 163cm and weight 58kg. She was of slim build and somewhat anxious.
She transferred with some discomfort out of the chair and on and off the examination couch. Ms Myers was pleasant and co-operative throughout the examination.

Cervical spine (cervicothoracic)

There was muscle guarding and spasm present in the left paracervical, left upper trapezius and left thoraco-scapular area.
The three planes of movement in the neck were measured:
(a)   flexion was reduced by one-quarter and extension by one-third;
(b)   lateral flexion to the right was reduced by one-quarter and to the left by one-third, and
(c)   rotation to the right was reduced by one-half and to the left by one-quarter.
Dysmetria was present therefore in all three planes of motion.
Ms Myers’ complaints of radiating pain symptoms into the left arm followed a C6 distribution and represent non-verifiable radicular complaints.
Neurological examination of both upper limbs, including reflexes, power and sensation were normal. Upper arm girth was measured on the right at 26.5cm and left at 27cm. Forearm girth was 23cm on the right and 22.5cm on the left. These are not clinically significant and was consistent with her right-hand dominance and is not evidence of muscle atrophy or wasting.

Thoracic spine (thoracolumbar)

There was no dysmetria. Flexion and extension were normal and thoracic rotation was restricted by two-thirds of normal bilaterally.
There were no non-verifiable radicular complaints, no muscle guarding and normal neurological examination.

Lumbar spine (lumbosacral)

Flexion was one-half normal with complaint of her back starting to lock up. Extension was reduced by one-quarter with complaints of shooting pain to the left gluteal area. Lateral flexion to the right was one-third and to the left one-half.
There was therefore dysmetria present. There were no non-verifiable radicular complaints (shooting pain) affecting the lower extremities. There was local mechanical radiation of discomfort from the lumbar spine towards the left sacroiliac joint.
Muscle guarding was present in the left lower paralumbar area. Neurological examination of both lower limbs including reflexes, power and sensation were normal. Sciatic nerve root tension signs could not be adequately checked because attempted straight leg raising had to be abandoned because it induced low back muscle spasm on the left side.
Thigh girth; right 45.5cm, left 46cm. Leg girth; right 36cm, left 35.5cm at 14cm below the inferior patellar pole. These measurements are not clinically significant and do not indicate muscle atrophy or wasting.

Upper extremity

Ms Myers stood with spasm in the left trapezius and with the left trapezial ridge higher than the right, which was consistent with the results of palpation of the muscle bellies. Active range of movement was measured three times with a goniometer.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120°, 120°, 120°	100°, 100°, 100°
Extension	40°, 40°, 30°	15°, 20°, 20°
Adduction	40°, 40°, 30°	10°, 10°, 10°
Abduction	130°, 130°, 120°	105°, 90°, 90°
Internal Rotation	45°, 50°, 40°	10°, 20°, 20°
External Rotation	70°, 80°, 70°	30°, 30°, 20°

Active range of movement in both the right and left shoulders was said to be limited by increasing discomfort in the left side of the neck and left trapezial area accounting for the variation (inconsistency) in recorded range of motion.

Lower extremity

Active range of movement was measured with a goniometer and was consistent as follows.

Hip Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90°	60° limited by tightness in left gluteal muscles like the muscles will lock up
Extension	Normal	Normal
Adduction	30°	30°
Abduction	40°	40°
Internal Rotation	20°	10°
External Rotation	30°	20°

There was tightness in the left gluteal muscles on active movements of both the right and left hips which Ms Myers described as like the muscle locking up.

Comments on consistency

Medical Assessor Oates asked the claimant why there was reduced range of movement in the shoulders when he examined her, compared with measurements recorded by Drs McGrath, Smith, Low and Bodel, and Ms Myers explained that she could not keep up as intensive a fitness and exercise program after she had started her teaching studies and then teaching. She felt that as a result of this she was in more pain in the neck and back and this limited her range of movement.
Medical Assessor Oates asked the claimant why there was a difference between the measurements when he examined her and those from Medical Assessor Tamba-Lebbie, and she replied that she feels her left shoulder has “slipped back” because she is facing different occupational demands now that she is a primary school teacher. She says she has increased static postures of the neck and is required to look down for prolonged and repeated periods when checking children’s work at their desks.
She had asked not to be given very young children’s classes, but this limits her ability to obtain work. She feels her left shoulder and neck particularly have worsened in the period since the last assessment and that she needs intervention in this area.

IMAGING

The claimant brought with her to the assessment the 19 January 2023 CT scan of her cervical and lumbosacral spine undertaken by Y Huang. This showed satisfactory cervical spine alignment with minimal cervical degenerative changes and importantly no neural compromise. There was normal alignment of facet joints without any significant arthropathy.
The scans also showed satisfactory lumbar spine alignment with vertebral body heights and disc spaces maintained. There was a slight central L5/S1 disc bulge mildly indenting the thecal sac but no significant spinal canal stenosis or neural foraminal compromise. There was normal alignment of facet joints without any significant arthropathy and normal sacroiliac joints bilaterally.

DIAGNOSIS AND CAUSATION

The medical members of the Panel are satisfied that, on the basis of a review of the documents on file (including early contemporaneous medical records, information in the claim form and the attached medical certificate), the results of imaging, Medical Assessor Oates’ examination findings as well as their clinical judgment that the claimant sustained the following injuries in the accident:
(a)   soft tissue injury to the cervical spine and adjacent left shoulder girdle with referred symptoms to the left and to a lesser extent right upper extremity;
(b)   soft tissue injury thoracic spine, and
(c)   soft tissue injury to the lumbar spine including a left sacroiliac joint strain.
The Panel notes there are no pre-accident medical or allied health records. The Panel also notes that the claimant is not a frequent attender at medical practices and has some relevant experience in a form of allied health and fitness and has, on her evidence, to some extent self-medicated and self-treated her symptoms.

Cervical spine

While the Panel notes the reports of Dr McIntosh and Dr Smith suggesting it is unlikely for the claimant to have sustained a long-standing neck injury, it is the medical members of the Panel’s experience that in slender-necked light muscled females, like Ms Myers, there is an increased individual susceptibility to a whiplash associated disorder (WAD) following a rear-end car accident. The relatively unrestrained head and neck move back with inertia then forwards. The claimant reported she was thrown backwards and forwards before the seatbelt tensioned.
In this case, there was early reporting of symptoms in the neck (between the trapezius) in the GP notes and by Ms Myers in her history and claim form. Despite a low speed of impact, the Panel accepts Ms Myers injured her cervical spine in the accident.

Thoracic spine

While again the Panel notes the reports of Dr McIntosh and Dr Smith suggesting it is unlikely that a thoracic spine injury could have occurred, Dr McIntosh did not express the view injury was impossible. The medical members of the Panel are also of the view that a thoracic spine strain could have been and was caused by the accident, because the upper torso is less well restrained and moves with the cervical spine after impact, as mentioned above.
The Panel again notes early and continuing reporting of symptoms in the left upper thoracic area and accepts Ms Myers injured this part of her spine.

Lumbar spine

In contrast, the Panel notes that the low back is well-restrained by the lap section of the seat belt and protected from rear impact by the car seat and lumbar support. The Panel notes the report of Dr McIntosh report that lumbar soft tissue injuries would be very unlikely in a low velocity rear impact, but that such injury is not impossible. The medical members of the Panel note the relatively early report (four weeks after the accident) by Ms Myers of symptoms developing in the lower back within one week of the accident and accepts that tit is medically plausible that the accident could have caused a relatively minor soft tissue lumbar spine injury. The medical members of the Panel are of the view that in their clinical experience such an injury could not have caused symptoms lasting beyond six to twelve weeks.
The medical members of the Panel note the claimant conceded she had previous symptoms in her back after intensive exercise and housework for which she sought treatment from time to time. The Medical Assessors are therefore of the view that any symptoms continuing beyond the first few months are not medically plausible as related to the accident, after considering the crash mechanics and the report of Dr McIntosh which has not been answered by the claimant.
The treating medical documents subsequently refer to intermittent symptom exacerbation following activity such as teaching classes and housework and is in line with the pattern of symptoms that Ms Myers experienced before the accident as reported to Medical Assessor Oates.

Shoulders and hips

The claimant’s shoulder and hip joints were restricted in movement. The claimant mentioned referred symptoms from the spine to these regions (mainly on the left side) but did not confirm that she sustained an actual injury to these joints. There was no evidence in the records available of any frank or direct injury to either shoulder or either hip.
The Panel notes there has been no imaging of the hips or shoulders. Therefore, there is no evidence upon which a diagnosis of frank or specific injury can be made in respect of either shoulder or either hip. If there are symptoms in those areas then it is the medical members of the Panel’s clinical judgment that these are likely to be referred symptoms from the soft tissue injuries to the claimant’s cervical and lumbar spine, respectively.

Left shoulder

The Panel does not find that the accident was a cause of a direct left shoulder injury but does accept that there were symptoms referred to the left shoulder girdle from the cervical spine.

Right shoulder

The Panel finds no evidence of a direct right shoulder injury and considers that it is not medically plausible that a left-sided neck injury could result in referred symptoms to the right shoulder resulting in limitation of active range of motion in the right shoulder.
The Panel also notes that both Medical Assessor Bodel (February 2020) and Dr Low (February 2021) found full range of movement in the right shoulder. Considering the lateness of the onset of this restriction of movement, the Panel does not relate the current limitation of right shoulder active range of motion to the subject accident.

Hips

The Panel does not find the accident was a cause of any direct or frank right and left hip injuries. A rear-end impact does not provide any plausible mechanism for hip injury as these areas are well restrained and protected in the same manner as the lumbar region.
The Panel has accepted the initial lumbar soft tissue injury which the claimant indicated in her claim form and has reported consisted of left sided symptoms which could have resulted in referred symptoms to the left buttock and hip areas. But it is not medically plausible for a left sided lumbar spine injury to cause symptoms in the right side or the right hip.
As the Panel has found that the claimant’s lumbar spine injury was minimal and would not have caused any ongoing symptomatology after the first few months, any hip symptoms and related loss of active range of motion that may be referred from any lumbar spine problem are not in the medical members’ clinical judgment accident-related.

PERMANENT IMPAIRMENT ASSESSMENT

Cervical spine

The claimant’s impairment is best categorised as DRE category II or 5% WPI due to the presence of dysmetria and guarding.
There were none of the five signs of radiculopathy as required by cl 1.138 of the Guidelines on clinical examination,[12] therefore the claimant’s impairment does not qualify for a DRE category III finding.
[12] On examination reflexes, power and sensation was normal and there was no evidence of muscle atrophy or wasting.

Thoracic spine

Based on the clinical examination findings recorded by Medical Assessor Oates the claimant is assessed as DRE category I which equates to 0% WPI.
There was no guarding, no dysmetria, and no non-verifiable radicular complaints[13] and none of the signs of radiculopathy and therefore the claimant did not qualify for either DRE category II or III.
[13] There were no objective clinical findings in respect of sensation, power or reflexes and no radiating pain from the thoracic spine.

Lumbar spine

While the Panel has found the claimant sustained an injury to her lumbar spine in the accident, the Panel is not satisfied that any current impairment of motion or guarding as found by Medical Assessor Oates is related to the accident.
There is therefore no assessable WPI in the lumbar spine resulting from the accident.

Left shoulder

The Panel has found there was no direct left shoulder injury however left shoulder impairment caused by the claimant’s neck injury is assessable under the Nguyen principle.
On examination the claimant demonstrated variable range of motion which makes this parameter an unreliable indicator of permanent impairment in accordance with cl 1.40 of the Guidelines. This was put to the claimant under cl 1.41 and the claimant explained that variation in her range of motion depends upon her pain levels.
While the Panel is satisfied the claimant has an accident-related impairment, having rejected the range of motion method the Panel considers an allowance of 2% WPI should be allowed pursuant to Table 19[14] with mild acromioclavicular joint crepitus which would produce similar discomfort limiting movement on shoulder elevation.
[14] Mild inconstant crepitation results in a 10% impairment of the joint. As the acromioclavicular joint is 25% of the upper extremity this means a 2.5% upper extremity impairment which is rounded up to 3% and which corresponds to a 2% WPI in accordance with Table 3.

Right shoulder

The Panel has found there was no direct or indirect right shoulder injury which can be plausibly related to the accident and there was a full range of motion reported by previous medical examiners.
There is therefore no assessable permanent impairment in the right shoulder caused by the accident.

Left and right hip

The Panel has found that the claimant sustained a minor soft tissue lumbar spine injury and may have had some temporary restriction of motion in her lumbar spine and hips. However, it is the clinical judgment of the medical members of the Panel that whatever restriction of motion the claimant currently has in either of her hips, five and a half years after the accident it cannot plausibly be related to any injury sustained in the accident.
The Panel therefore is of the view there is no assessable permanent impairment in either hip.

Pre-existing impairment

The claimant reported long standing pre-accident symptomatology in her spine although she reports she was asymptomatic at the time of the accident. The Panel notes that no records have been produced in respect of the claimant’s pre-accident medical condition and there are no records from the pre-accident GP or allied health providers such as the claimant’s osteopath. While there may have been pre-existing symptoms in the cervical and lumbar spines there is no objective evidence of any pre-existing impairment.
Therefore, there is to be no reduction in accordance with cl 1.31 of the Guidelines.

CONCLUSION

The Panel is satisfied that the degree of Ms Myers’ permanent impairment resulting from the injuries caused by the accident is:
(a)   cervical spine        DRE category II  5%
(b)   thoracic spine        DRE category I  0%
(c)   left shoulder          (Nguyen)  2%
The combined WPI resulting from the accident is 7% which is not greater than 10%.

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Citations

AAI Limited t/as AAMI v Myers [2023] NSWPICMP 149

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351

[2023] NSWPICMP 149

18 April 2023