AAI Limited t/as GIO v Aiono

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Aiono [2024] NSWPICMP 754
CLAIMANT:	Talauula Aiono
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	4 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s review under section 7.26 of Medical Assessor Bodel’s assessment of whole person impairment (WPI) at 12%; claimant alleged injuries to neck, lower back (transverse L4 and L5 fractures), left shoulder and arm, chest and abdomen, both knees and legs; the insurer raised issued of causation in the light of the claimant’s improvement recorded in the GP notes and elsewhere; on examination there was inconsistency and the claimant was difficult to examine; Held – WPI 5%; Medical Assessment Certificate revoked; no issue as to 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 Bodel dated 3 May 2024. 2. Certifies that the degree of Talauula Aiono’s permanent impairment resulting from the injuries caused by the motor accident on 24 August 2021 is 5% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Talauula Aiono was involved in a motor accident on 24 August 2021. Ms Aiono says she injured her spine, shoulders, knees, chest and abdomen in the accident. She made a claim for statutory benefits and then damages against GIO, the third-party insurer of the vehicle that Ms Aiono says caused her accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) resulting from the injuries sustained in the accident arose in connection with the damages claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 3 May 2024 Medical Assessor Bodel determined that the claimant had a WPI 12% which is of course greater than 10%.
The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 2 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 4 July 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review proceedings.

LEGISLATIVE FRAMEWORK

General

Ms Aiono’s claim and her entitlement 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. 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]
[1] The current maximum as of October 2024 is $654,000.
[2] See s 4.12 of the MAI Act.

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 Bodel’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] 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 arranges to 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.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] 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.

ASSESSMENT UNDER REVIEW

Medical Assessor Bodel examined the claimant on 18 April 2024 and issued his certificate on 3 May 2024. He confirmed at [2] that he was asked to assess the following injuries:
(a)    cervical spine – soft tissue injury;
(b)    lumbar spine – fractures L4 and L5 transverse process;
(c)    left shoulder - soft tissue injury with intermittent tingling in left arm;
(d)    left arm – soft tissue injury;
(e)    chest – extensive bruising and soft tissue injury;
(f)    abdomen – soft tissue injury and extensive bruising;
(g)    both knees – soft tissue injury, and
(h)    legs – soft tissue injury with radiation of pain from lower back to both legs.
Medical Assessor Bodel took a history from the claimant of the following (documented at [8] – [10]);
(a)    she was well before the accident with no medical conditions;
(b)    she has gained weight since the accident, from 106kg to 121kg because of inactivity;
(c)    she was a disability support and aged care worker before the accident working part time. Three months after the accident she was upgraded to her full-time hours. She has cut down her work hours from 76 hours a fortnight to 63 because of her injuries;
(d)    she used to go to the gym, has six children and has returned to driving a car;
(e)    she was in a van with four of her clients, returning to a group home after an outing. A vehicle hit the van on the right-hand side, the van spun around and slid off the road;
(f)    she may have been knocked unconscious as she had a hazy recall of the events afterwards;
(g)    police and ambulance attended, and she was taken to hospital where she remained for two or three nights;
(h)    she had pain in the neck, back, left shoulder and arm, a seatbelt injury, pain in the knees with buttock and thigh pan;
(i)    she saw her general practitioner (GP), had medication and physiotherapy which was of little help, and
(j)    she currently takes Panadol and Nurofen and is having no formal treatment.
Medical Assessor Bodel records the claimant’s current complaints as:
(a)    neck and left shoulder and arm pain;
(b)    head down posture or use of the arms overhead can aggravate the pain;
(c)    some pain and stiffness in the region of the right shoulder but does not indicate that there was ever a specific ‘injury’ to the region of the right shoulder or arm;
(d)    numbness and tingling in a global distribution involving the whole of the left upper limb and involving all five digits;
(e)    pain in the lower part of the back aggravated by prolonged sitting or bending, twisting or lifting, and
(f)    numbness and tingling down the whole of both legs and involving all five toes, and she describes this as a “sharp pain”.
On examination, Medical Assessor Bodel notes at [14] that the claimant was uncomfortable and “held herself quite rigidly”. Her range of neck motion was variable from formal examination to informal observation. She would not move her neck at all, and Medical Assessor Bodel asked her how she could drive with that little movement.
His examination findings of Ms Aiono’s neck at [15] report the presence of muscle guarding and dysmetria but she would not move enough to demonstrate her full range of motion. There was no reflex abnormality or sensory loss or wasting. There was weakness but it was global and variable. He found no signs of radiculopathy.
There was no abnormality noted in the thoracic spine [16].
In the lumbar spine, the Medical Assessor records at [17] guarding was present with a very restricted range of back motion with slight asymmetry of motion. There was a good range of joint motion but no signs of wasting, reflexes were present and there was no sensory loss in the lower limbs. He found no radiculopathy.
Assessment of the shoulders was difficult and there was restriction of motion recorded at [18] in both shoulders the left more so than the right.
There was minor restriction of motion in both knees with measurements of 120 degrees recorded for each knee at [19] but no other abnormalities.
At [20] after citing the “Motor Accident Authority Guidelines” relating to consistency, Medical Assessor Bodel determined that the recorded measurements, “fairly reflect the true clinical findings.”
At [23] he diagnosed a soft tissue injury to the claimant’s neck and lower back and an aggravation of underlying well-established pathology in the left shoulder and ongoing arthritic change in both knees. He considered a soft tissue injury to the left arm, extensive bruising, abdominal bruising and radiation to the lower legs had resolved.
Medical Assessor Bodel found aggravations were caused by the accident and that the transverse process fractures at L4/5 were also caused.
He assessed the neck and lower back as DRE category II (5%) on the basis of dysmetria and guarding. He assessed the current shoulder impairment at 10% from which he deducted the impairment in the uninjured shoulder and arrived at 3%. There was no impairment found in the knees.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer argues that the Medical Assessor failed to put the inconsistencies in range of motion to the claimant and seek a response in accordance with cl 6.41 of the Motor Accident Guidelines (the Guidelines.
The insurer says the Medical Assessor had observed inconsistency between formal examination and informal observation and that the claimant’s formal examination did not allow him to observe her full range of motion. The insurer says the Medical Assessor’s findings of muscle guarding and dysmetria in the light of that is unclear. The insurer also submits that the GP notes suggest the claimant’s neck was improving and if there is any continuing symptomatology it is not related to the accident.

Claimant’s submissions

The claimant says the Medical Assessor exercised skill and judgment and put to the claimant how she managed to drive a car with the restricted range of motion she exhibited. The claimant says he has considered the issue of inconsistency and resolved it.
The claimant also says the Medical Assessor has undertaken an examination, recorded his findings, reviewed the medical evidence and assessed WPI of the neck and lower back at 5% each.
The claimant says the neck injury was caused by the accident. There is evidence it improved but that is not evidence that it resolved.

Procedural steps

On 5 July 2024 the Panel issued directions to the parties:
(a) the insurer was asked to confirm the Panel had all of the documents GIO was relying on in the assessment (as a bundle had been provided), and
(b) the claimant was directed to lodge a bundle of documents that she relied on.
The insurer confirmed on 2 August 2024 that the bundle of 198 pages lodged with the insurer’s application comprised all of the documents the insurer relied on.
The claimant lodged a bundle of documents on 8 July 2024 made up of 477 pages.
The Panel met on 19 August 2024 and reported to the parties. The Panel noted the list of eight injuries and the assessment of Medical Assessor Bodel that four of those had resolved. The Panel asked the claimant to advise whether those injuries needed to be reassessed.
In terms of documents the Panel asked the claimant to provide an updated bundle of GP records from July 2022 only and a limited number of workers compensation documents.
The Panel advised the parties of the re-examination date and invited final submissions.

The responses from the parties

A message dated 3 September 2024 from the claimant was relayed to the Panel. The claimant confirmed the bruising had resolved but that she still experienced pain in her lower legs and left arm. The claimant provided a copy of the updated GP notes.
The Panel relayed a message to the parties on 10 October 2024 seeking a copy of the workers compensation claim form or notice of injury form in relation to the car accident (as the claimant was injured whilst at work) and any other workers compensation claim made by the claimant. The claimant’s solicitor advised he had no relevant records.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant’s application for personal injury benefits was signed and dated 30 March 2022, seven months after the accident.
The claimant says she was a passenger in a van when a car traveling through an intersection collided with the vehicle she was in, hitting the driver’s side door following which, their vehicle left the road.
The claimant alleges the following injuries:
(a)    neck;
(b)    headaches;
(c)    left shoulder;
(d)    left arm;
(e)    upper back;
(f)    lower back;
(g)    both legs and lower legs;
(h)    toes, and
(i)    psychological trauma.
The claimant said she was not suffering an illness or injury to the same or similar parts of her body at the time of the accident.

Treating medical records and reports

The Liverpool Hospital notes record a principle diagnosis of left L4/5 transverse process fractures.
The claimant was said to be driving a vehicle and had been T boned on the passenger side. The “passenger” was reported in these hospital notes to be also in the emergency department being seen by another doctor.
The claimant denied a loss of consciousness, was walking and recalled all events. She was complaining of right sided chest pain.
Primary, secondary and tertiary surveys were done, and radiology of multiple areas was performed. There were no other skeletal or visceral injuries identified other than the lumbar spine fractures. The left knee X-rays were reported as showing marked degenerative changes with significant joint space narrowing.
At page 50 of the claimant’s bundle is a referral to Advantage Psychology dated

10 September 2021. Dr Liew of Tregear Medical Centre noted the claimant had symptoms of post-traumatic stress and had difficulty sleeping with flashbacks.
Records have been produced by the Tregear Medical Centre as at 8 July 2022 comprising 400 pages. The insurer has also relied on a bundle of records from this practice as at

8 July 2022 comprising 173 pages. The notes are in reverse order in terms of age. The first note dated 1 May 2002 is found on page 120 of the claimant’s bundle.
Significant features of the pre-accident notes of relevance to the dispute before the Panel are:
(a)    1 May 2004 – painful right shoulder, no injury with full range of right shoulder and neck movements. The reason for the visit was stated as rotator cuff tendonitis and Mobic was prescribed;
(b)    24 May 2004 – occasional painful knees;
(c)    28 May 2004 – painful right elbow with full range of motion. The claimant returned on 1 June 2004 with elbow pain, an X-ray was requested, and the claimant was said to be stressed and not sleeping. On 8 June 2004 the claimant still had right elbow pain;
(d)    18 July 2005 – sore left knee for two weeks, had been going to the gym, no history of injury recorded;
(e)    3 July 2008 the claimant weighed 104kg with a BMI of 41.7;
(f)    29 September 2008 – the claimant had pain in the left knee for a few months, worse with walking and at the gym. The range of motion was full, and an X-ray was requested;
(g)    31 October 2008 – the claimant was stressed and tired and still getting pain in the left knee. The claimant had not had an X-ray done and there was no swelling in the left knee but tenderness and full range of motion with crepitus;
(h)    3 December 2008 – the claimant’s painful left knee persisted, and she was unable to get to the gym. The range of motion was normal with crepitus;
(i)    30 April 2009 – low back pain three days after lifting the baby and mowing the lawn. The range of motion was full, and the diagnosis was “acute muscular strain lower back” and Nurofen was prescribed;
(j)    22 March 2010 – the claimant’s weight was measured at 107kg and her BMI 42.9. She was advised to exercise 60 minutes a day and eat a low saturated fat diet;
(k)    29 April 2010 – pain left neck and left shoulder, range of motion was full and muscular strain was diagnosed;
(l)    16 December 2020 – the claimant’s weight was measured at 99.6kg;
(m)     27 February 2012 – right knee pain for a week. Had been to the gym, no history of injury;
(n)
1 May 2012 - three weeks pain in both knees. Right knee has settled but still has left knee pain. Goes to the gym. There was no swelling and a full range of motion. The claimant weighed 99.9kg and was advised to lose more weight. On

2 May 2012 the claimant had the requested X-ray which revealed the presence of osteoarthritis and loose bodies in the knee;
(o)    16 May 2012 – pain right shoulder for two months and range of motion was reduced. A possible diagnosis of right rotator cuff tear was made, and she was advised to have an X-ray and ultrasound. On 18 May 2012 the claimant was seen with the right shoulder X-ray and it was not as bad. The right shoulder ultrasound was done, and the claimant was seen on 6 June 2012. She had a 5 x 4 mm intrasubstance tear in the supraspinatus with bursal effusion and thickening. The range of motion was better. The left knee was also mentioned;
(p)
25 October 2012 – left knee pain with reduced range of motion and crepitus and the claimant was advised to lose weight. The claimant was seen again on

30 October 2012 about the knee and other matters;
(q)    29 November 2012 – the claimant had pain in the right shoulder and occasional pin in the right side of the neck. The range of motion in both was full and the claimant was referred for an X-ray;
(r)    5 December 2012 – the cervical spine X-ray revealed degenerative C5/6 discs. The right sided neck pain was said to occasionally radiate to the right upper limb. The claimant weighed 102 kg;
(s)    7 December 2012 – CT cervical spine showed moderate bulging of the C4/5 disc and mild encroachment of the exit foramina on both sides. She was advised not to light heavy weights;
(t)    12 December 2012 – neck pain continued, and physiotherapy was arranged. The claimant was tired due to lack of sleep, on 29 January 2013 the neck pain and pain in the right trapezius was there but movement was full, and physiotherapy was continued;
(u)    8 April 2013 – right knee pain since yesterday, range of motion was full;
(v)
12 June 2013 – chronic neck pain and range of motion slightly reduced. On

3 September 2013 is a very similar entry and physiotherapy was requested;
(w)
18 October 2013 – the claimant’s weight was recorded as 102kg and 102.5kg on

12 March 2014. On 11 July 2014 she was weighed at 105.5kg and 108kg on

14 October 2014;
(x)
11 January 2016 – the claimant’s weight had increased to 111.8kg. On

15 June 2015 her weight had reduced to 109kg but on 24 October 2016 it was 113kg with a BMI of 45.3. On 9 January 2017 the claimant weighed in at 114kg;
(y)    on 30 January 2017 the claimant complained of headaches, right sided chest pain, occasional sore neck and right shoulder. The range of motion in her neck and right shoulder were slightly reduced and she was referred for X-rays of the cervical spine and right shoulder. On 1 February 2017 the claimant returned with the X-ray showing disc narrowing at C5/6, slight retrolisthesis of C4 on C5 and osteophytosis most pronounced on the left at C5/6 and C6/7. The neck pain and chest pain had resolved, and neck movements were full;
(z)    10 May 2017 – the claimant reported left knee pain and left calf -and X-ray and ultrasound was requested. On 12 May the claimant was seen with the X-ray (osteoarthritis) and the ultrasound (no abnormality). She had pain and crepitus but a full range of motion. Mobic was prescribed;
(aa)    9 February 2018 – the claimant had gained weight (115kg) with a BMI of 46.1 and she was tired;
(bb)    8 October 2018 – pain both knees past three weeks. Range of motion was full but there was crepitus. On 19 October 2019 the claimant returned with knee pain worse on the left and Mobic was prescribed again;
(cc)     4 February 2019 – the claimant’s weight was recorded as 113kg and she had high cholesterol;
(dd)    1 March 2019 – the claimant had been bitten on the right shoulder by a client;
(ee)    18 October 2019 – the claimant’s weight had reduced to 108.8kg but after overseas visitors had stayed with her on 20 November 2019 her weight had increased to 111.1kgs;
(ff)    21 May 2020 – the claimant’s weight was 113kg;
(gg)    1 September 2020 – the claimant had been hit on the top of her head by a client and had two days of headaches which had resolved by 3 September 2020;
(hh)    24 December 2020 – the claimant had left foot pain for two weeks which was investigated and showed mild degenerative changes in the talonavicular joint;
(ii)    8 January 2021 – the claimant was weighed at 117.9kg and was counselled about her weight and the claimant was advised to have an ultrasound and she still had pain in the left foot when walking, and
(jj)    15 January and 18 March 2021 the claimant had headaches.

The claimant first attendance on Dr Liew after the accident was on 27 August 2021. The claimant reported back pain, right sided chest wall pain (she was tender with bruising) and there was bruising on the lower abdomen, right abdomen and right breast. There was also a bruise on the medial side of the left knee. The range of motion was full. On 3 September 2021 the claimant complained of continuing pain in the chest and there was a small bruise on the right upper abdomen. On 10 September the right chest wall pain was better, but the claimant had pain turning over in bed, she had multiple haematoma palpable on the lower abdomen was feeling stressed, having flashbacks and waking up crying.
On 17 September 2021 the claimant had right chest wall pain, and the haematoma were resolving. Similar comments were made on 24 September 2021 and the claimant reported she had not seen a psychologist. The claimant was still sore on 1 October 2021.
On 8 October 2021 the claimant had still not seen the psychologist. Her right chest wall pain and lower abdominal pain was better, and she still had pain in her knees but a full range of motion. She was referred for physiotherapy.
On 15 October 2021 Dr Liew records the claimant’s back pain had improved, her right chest wall pain was better, and her lower abdominal pain had improved. Her mother had died overseas, and Ms Aiono was feeling anxious. She was on a waiting list for the psychologist.
On 22 October 2021 the claimant was feeling slightly better with occasional pain in the knees and back and she was to see the psychologist soon.
On 5 November 2021 Dr Liew records a history of neck pain since the accident, some left arm pain, no paraesthesia, no numbness and no weakness. She had slightly reduced range of motion. Her left neck was tender, and she had some left shoulder reduction in motion. Her back pain was improving, and her knee pain was also improving.
A CT scan of the claimant’s cervical spine was done as well as an ultrasound of the left shoulder and left elbow. The cervical spine CT was reported as showing impingement on the right C5 and C7 but no cause for left sided symptoms. The left shoulder X-ray showed no fracture or osteoarthritis, and the ultrasound reported moderate subacromial bursitis with impingement and mild supraspinatus tendinosis without a tear. There is no abnormality of the left elbow reported. The Panel notes no complaints of right shoulder symptoms at this time.
On 3 December the claimant’s knee range of motion was recorded as full, but she was having occasional knee pain and intermittent right chest wall pain.
On 4 January 2022 the claimant’s weight was recorded at 114kg.
On 13 January 2022 the claimant’s knee pain was said to be improving, she had some low back pain, her neck was improving, and her left shoulder was better, and she had stopped physiotherapy.
On 28 January 2022 she had back pain and occasional shoulder pain, but the range of motion was slightly reduced in the back and full in the shoulders.
On 24 February 2022 Dr Liew records complaints of intermittent back pain, no leg pain a full range of back movements. The claimant did not see the psychologist as she was unable to get an appointment, but she was feeling less anxious.
On 22 March 2022 the claimant attended with some pain in her back and knees when she returned to work. There was a slight restriction of motion. The straight leg raised test was 80 degrees on the right and left and her reflexes were normal. The claimant reported occasional left shoulder pain, motion was slightly reduced, and she was steel feeling some anxiety when driving.
On 1 April 2022 the claimant attended with radiology:
(a)     X-ray and ultrasound of the left shoulder showing supraspinatus tendinosis, subacromial bursitis and recommended ultrasound guided steroid injection for symptomatic relief;
(b)    X-ray both knees showing arthropathy and effusion, and
(c)    a CT scan of the lumbar spine showing an L4/5 disc bulge.
The claimant attended again on 21 April 2022 with back pain and knee pain. The range of motion in the back was stated as full and in the knees there was also said to be a full range of motion. She was coping and feeling occasional stress at work.
On 3 May 2022 the claimant’s knees were tender, but range of motion was full. On

19 May 2022 her knees were still causing issues. She was going to the gym once a week and weighted 116kg. She attended again on 30 June 2022 with occasional pain in the legs.
The second bundle of documents commence with three attendances on 29 July, 29 August and 27 September 2022. The notes do not include any reference to physical injuries or the accident.
On 14 November 2022 the claimant attended for bilateral knee pain and wanted injections, there was a full range of motion but mild effusion.
On 23 November 2022 is this note:
“Assaulted at work yesterday. Sitting and writing reports and a male client hit her on her head with his open hand. Covered her head with her hands and fell to the ground hitting R lower chest and R abdomen on fallen laptop. He continued to hit her hair. He also bite her hair and pulled on her hair.”
The claimant reported pain in her head, neck, left shoulder and right chest all and right abdomen. She had a full range of neck and left shoulder movement.
Ms Aiono returned to Dr Liew on 30 November 2022 still complaining of neck and left shoulder pain but with full motion. She was still tender with pain in the abdomen and chest and said her right knee pain was worse after the assault and she had pain in her lower back with radiation to the right leg. The range of motion in her right knee was reduced.
On 9 December 2022, there was occasional neck pain, reported the left shoulder pain was better, the abdominal pain had resolved, and the claimant had some right sided back pain and knee pain. On 13 December 2022 return to work was discussed and the claimant was to continue physiotherapy. On 9 January 2023 the records suggest the assault related injuries had resolved.
There was then a gap of six months, and the claimant saw Dr Liew on 18 July 2023 concerned about her weight (120kg and BMI of 48.1) and the accident and any related injuries were not mentioned.
There was a further gap in attendances (five months) until 15 December 2023 when the claimant attended for right foot pain for the past six months and a diagnosis of plantar fasciitis was made. There was no mention of the accident or related injuries.
There were half a dozen further appointments until the last on 2 August 2024, but none referred to any physical injuries or symptoms that may have been from the claimant’s accident.
Within the records are a series of certificates of fitness from Dr Lieu as follows:
(a)    1 and 3 September 2020 – headaches post head trauma;
(b)    27 August 2021 - L4/5 transverse process fractures, bruising to the chest wall, abdomen and lower legs, left knee pain (soft tissue injury) analgesia and physiotherapy to the left knee was recommended and the claimant was certified unfit for work until 3 September 2021;
(c)
3 September 2021 – same injuries and no capacity for work until

10 September 2021;
(d)    10 September 2021 - L4/5 transverse process fractures, bruising to the chest wall, abdomen and lower legs, left knee pain, lower abdominal wall haematoma, post-traumatic stress disorder certified unfit until 17 September 2021;
(e)
17 September 2021 – same injuries and no capacity for work until

1 October 2021;
(f)    1 October 2021 – same injuries and no capacity for work until 8 October 2021;
(g)    8 October 2021 – same injuries and certified unfit for work until 15 October 2021;
(h)    15 October 2021 – same injuries and no capacity for work until 22 October 2021;
(i)    22 October 2021 – same injuries and unfit for work until 5 November 2021;
(j)    5 November 2021 – L4/5 transverse process fractures, bruising to the chest wall, abdomen and lower legs, left knee pain (soft tissue injury), lower abdominal wall haematoma, post-traumatic stress disorder, left neck pain, left shoulder pain, left elbow pain. Scans needed for neck shoulder and elbow. Claimant certified fit for four hours a day for three days a week from 8 November to 19 November 2021;
(k)    18 November 2021 – same injuries, physiotherapy advised to neck, shoulder and elbow – same hours of work;
(l)    3 January 2021 – same injuries, same treatment – same hours of work;
(m)
13 January 2022 – same injuries fit for six hours a day from 13 to

31 January 2022;
(n)    28 January 2021 - same injuries, fit for eight hours of work, three days a week from 31 January 2022 to 25 February 2021;
(o)    24 February 2022 – same injuries fit for a trial of full-time duties;
(p)    22 March 2022 – same injuries and fit for a trial of full duties;
(q)    21 April 2022 – same injuries and fit for a trial of full duties;
(r)    19 May 2022 – fit for pre-injury duties, and
(s)    30 June 2022 – fit for pre-injury duties.
There are also a number of certificates of fitness relevant to the assault incident on

23 November 2022 as follows:
(a)    30 November 2022 – no current work capacity. The diagnosis of injury was “soft tissue injury to head, neck, left shoulder, right chest wall and right abdominal wall and aggravation of right knee osteoarthritis”. There were no pre-existing factors identifies of relevance. The treatment plan involved analgesia and physiotherapy.
There is a second certificate also dated 30 November 2022 which includes right lower back pain as an injury and includes CT scans of the lumbar spine and X-rays of the right hip and knee in the treatment plan;
(b)    9 December 2022 – fit for pre-injury duties, and
(c)    9 January 2023 – fit for pre-injury duties.

Medico-legal reports

Dr Woo, orthopaedic surgeon provided a report to the claimant’s solicitors dated

28 October 2022.
Dr Woo has a pre-accident history of pain in both her knees and osteoarthritis, disc bulges at C5/6 level, back pain, bilateral shoulder pain and left foot pain.
The claimant gave a history of being a front seat passenger in a van which was hit on the driver’s side and spun around. She says there was one other person in the back of the van. She said she remained in the van until the ambulance arrived as she was unable to move and that she had pain all over of her body. After two days in hospital, she was referred for physiotherapy and exercise physiology.
Dr Woo also has a history of the claimant returning to full time work in early 2022 but a reduction of her hours after than as she struggled.
The claimant reported on and off neck pain, left shoulder pain with tingling which had subsided, lower back pain on and off pain in both her legs, pain in her knees and calves and left foot pain.
The claimant was 160cm and weighed 114kg at the time.
When her cervical spine was examined, there was no tenderness, no muscle guarding and no dysmetria. Range of motion was normal. There were no neurological abnormalities of the upper limbs.
In the lumbar spine, there was mild tenderness, range of motion was normal and there was no dysmetria. Straight leg raising was 80 degrees on both legs with back pain. There were no neurological signs in the lower limbs.
In the shoulders, the right shoulder had a normal range of motion, and the left had mild restriction. Kness were mildly tender, but range of motion was normal and there was no effusion.
Dr Woo diagnosed the fractures and soft tissue injuries aggravating pre-existing degenerative changes in the cervical and lumbar spine, left shoulder and both knees. He considered the aggravation resolved within three months.
While he does not assess impairment – on the basis of his findings, the Panel notes there would be no impairment of the lumbar or cervical spine and on the basis of the 70 degree range of internal rotation, there would have been 1% WPI for the left shoulder.
Dr Machart, orthopaedic surgeon provided a report to the insurer dated 19 April 2023. He has a history of the claimant being a passenger in a van hit from the right side.
He notes that the Liverpool Hospital notes indicate the claimant injured her left knee and lumbar spine in the accident. He has a history of her having some physiotherapy which provided short tern benefit and that she had returned to work after three months and is now working fewer hours.
Dr Machart takes a history of lower back pain, global pain in both legs above and below the knees and pain in both knees. He records that Ms Aiolo also complained of chest pain extending into the neck and stress.
Dr Machart asked the claimant about her previous conditions and records:
“She was not too clear about prior symptoms. I pointed out to her the medical [record] which documents problems with her knees and neck. She explained that this was nothing unusual in someone who was overweight and she did not require much in the way of analgesics, occasional Panadol Osteo. She said that she was worse now.”
On examination he notes the claimant was morbidly obese.
In the lower back, he records no spasm, no deformity, no guarding and minimal movements. He said there is slight asymmetry but “virtually no extension”. Straight leg raising on the right caused pain. Reflexes were symmetrically depressed but there was no sensory loss and strength could not be tested due to non-organic features and pain behaviours.
In the neck there was no spasm and no deformity. Minimal movement was displayed.
The knees were tender and her reports inconsistency in the that the claimant could only bend her knees through to 60 degrees when asked to do so but when she was sitting her knees were fully flexed with no reduction.
Dr Machart reviewed the pre-accident history. He diagnosed the fractures of the transverse processes in the lumbar spine and noted the claimant had no further investigations to see if there was a disc injury. He also diagnosed soft tissue injuries to the right knee on a background of osteoarthritis. He found 5% WPI for the lumbar spine DRE category II.

Other assessments

Dr Shen assessed the claimant’s psychological injuries in a certificate dated 19 June 2024 and an examination on 17 June 2024.
He has the report of the claimant not having hit her head but of her briefly losing consciousness. He records the claimant being in a vehicle which can transport one person with the impression given there was only one other person in the vehicle (apart from the driver and Ms Aiono). She reported to Medical Assessor Shen injuries to her neck, bruising to her stomach and chest and both knees. This causes her ongoing pain. The Panel notes there is no mention of the lower back.
Medical Assessor Shen diagnosed post-traumatic stress disorder and a persistent depressive disorder both of which were caused by the accident.
He assessed WPI at 6%.

RE-EXAMINATION FINDINGS

Ms Aiono attended the appointment at the Commission’s medical suites on 15 October 2024. She travelled with her son from home in Mt Druitt.
Medical Assessor Lahz provided this observation:
“Whilst Ms Aiono was pleasant throughout the interview and examination, it was a difficult assessment, given that she frequently did not answer the question being asked, and would speak of other matters, needing much prompting to return to the question asked.
I also had sometimes to ask straightforward questions in various ways in order to obtain the response to the specific issue of enquiry. To questions or requests, for example, ‘please show me the location of the pain at your shoulders’, there was a long delay before any response and similar questions sometimes elicited no response. I asked for example if there were symptoms at the shoulder convexities and/or the trapezial regions (the anatomical parts were pointed out to the claimant). Again, there was a long delay, followed by a reply ‘both’. I asked if one side were worse than the other and she said after a delay, ‘both are equal’ though later in the examination there was a significant difference with the left shoulder being more restricted than the right.
I will discuss this further below but I have just given an example of some of the difficulties of the history taking. Such difficulties prolonged the duration of the interview and examination to almost two hours.”

History provided by the claimant to Medical Assessor Lahz

Ms Aiono is aged 54 and is right-handed.
By way of social history, she was born in Samoa although she has lived in Australia for 20 years. Her husband was previously involved in Australian Rules football. Presently, she lives with her husband and three sons in a house in Western Sydney.
She has worked as a disability support worker for 10 years, the last six of which have been with her current employer Lifestyle Solutions. Her usual duties involve assisting clients with personal care, medication administration, cooking, chores, and outings/appointments. She obtained TAFE qualifications several years ago.
Ms Aiono says she currently continues working her usual hours (63 per fortnight) and her usual duties.

Past medical history

I asked Ms Aiono about her past medical history. She said that she had been very active, walking regularly with a friend up until the time of the 2021 motor accident. However, she subsequently amended this account to note that she had not done any walking since 2019 due to the pandemic. However, she volunteered on several occasions that she was “very active” before the subject 2021 motor accident.
I asked if there had been symptoms in her neck, shoulders, knees, and back before the motor accident. She conceded that there had been, from time to time, painful knees. However, despite the knee pain, she reiterated that she had still been able to be very active. She volunteered that she had been much less active since the 2021 motor accident due to the pain “coming on” and as a result she believes (but was unclear) that her weight has increased from 103kg at the time of the accident to (now) approximately 124kg and her doctor has now informed her she has “pre-diabetes”. I note the GP records suggest firstly that she went to the gym after the accident at various time and secondly that her weight since 2016 has been recorded at greater than 103 kg whenever it was measured.
On specific enquiry, she said that she had been able to complete all her usual chores before the motor accident. She also enjoyed travel, cruises, watching the football and socialising.
She did not spontaneously recall any pre-existing problems at the neck, shoulders or lower back. I took her to the various entries in the GP records indicating previous neck/left shoulder symptoms (2013), and neck, right shoulder and back symptoms (2017). She noted that these were quite a few years ago and said that any issues must have been temporary.
She denied any medical conditions such as hypertension, diabetes or heart disease, and told me that she is a non-smoker and non-drinker.

History of the accident

Ms Aiono confirmed her involvement in the subject accident on 24 August 2021. Contrary to the account in the hospital records, but consistent with elsewhere she stated that she was the front seat passenger restrained by a seatbelt (not the driver). Her co-worker was the driver, and they were taking one disabled client positioned in the backseat for an outing. They were travelling in a “very old” 14-seater passenger van (circa 1990’s) when a car emerged from the right and caused a collision with the driver’s side of the van. There were no airbags fitted to the vehicle due to its age.
Ms Aiono recalls all events. She stated that she was jerked forward and back, her head hitting the headrest several times whilst her knees struck the glovebox. She thought her shoulders were injured by the seatbelt and possibly by impact with the door.
She reported that the driver sustained a serious neck injury requiring hospitalisation for several months. The van was written off in the accident.
Ms Aiono said she was unable to exit the vehicle unaided. She said she was in shock and cannot remember whether there was any pain. “Five people” helped extract her from the van and she was then stretchered into an ambulance and taken to Liverpool Hospital. While the Panel has some Liverpool Hospital records, we do not have a copy of any ambulance report.

Hospital and early treatment

Ms Aiono said that she spent two nights in hospital during which period, she reported that the whole body was sore, she said inclusive of neck, chest and knees. She mentioned also extensive bruising over the chest wall and lower abdomen from the seatbelt. She did not mention her upper or lower back at all at this time.
I suggested to her that there had been lumbar spine fractures with back pain to which she then agreed. I also put to her that the hospital records had not mentioned any neck pain and in fact the first reference to neck pain in medical records is not until early November 2021 (GP records). Ms Aiono expressed surprise, noting her neck had been sore since the accident. She went on to say that she did not receive good care in hospital, the department was very busy, and she felt neglected especially when she had been urinating into her underwear and no one had come to assist her, given that she was confined to the bed at that stage. She also said that every time she consulted her own doctor since the accident, he would look at her neck and request that she show him her neck movements so she does not know why he would not have recorded this in the records.
Hospital documents record complaints of left knee pain for which she underwent an X-ray not showing any fractures. Scans did show lumbar transverse process fractures. Ms Aiono did not spontaneously report these to me and was unable to provide a detailed history of events, investigations and treatment provided in hospital. She did recall receiving some analgesia.
I put to her that the hospital records did not mention any shoulder symptoms for which she had no explanation aside from her perceived poor treatment in hospital. I also discussed with her that the GP records made no mention of shoulder pain until 28 January 2022. I asked her when she says her shoulder symptoms developed and she said, “it was when I went back to work”. When asked when that was, she said she was off work for approximately three months after the accident. As noted, it was difficult to determine from her the main site of the shoulder pain although on initially raising this issue, she pointed to the bilateral trapezial regions, noting symptoms were spreading there from the base of her neck.
According to Ms Aiono, she did not receive any specific treatment in hospital aside from analgesia. A couple of days later, she was permitted to return home, reportedly with the cannula still in place (she said further evidence of the busy hospital department). She saw the doctor on 27 August 2021 who removed this.
She said that she then complained of pain in the neck, back, chest, breasts and abdomen to the GP. Subsequently (on 8 October 2021) she was referred to physiotherapy for treatment targeting the knee and lower back. Physiotherapy records confirm treatment was given to the knee and back. According to Ms Aiono, the therapist also treated her neck although I pointed out to her that the physiotherapy records do not confirm this. She could not explain this.
Ms Aiono reported that she attended physiotherapy until the insurer ceased funding it. Therapy consisted of several modalities and various exercises with “squeezies” and “bands” as well as leg lifts. Overall, she felt it made no difference to her ongoing neck, low back pain and knee pain.
Ms Aiono was not prescribed strong analgesia after the accident by her GP, and she has continued using Panadol Osteo as well as various herbal remedies. Aside from physiotherapy and analgesia (as well as psychological interventions) she has not received other treatment. The doctor has generally advised her to “walk” although she reported that she cannot walk long distances due to pain in the knees (left more than right), neck and lower back as well as shoulders (left more than right).
As noted, she did resume work after three months and continues her pre-injury duties. She said that although there was substantial ongoing knee and back pain, she had to resume work for financial reasons and has kept working whilst “hiding the pain”. Fortunately, there are no requirements for heavy lifting at the workplace. A laundry basket, she said is about the heaviest item she must lift.
A CT scan of the lumbar spine was reportedly undertaken on 1 April 2022 although Ms Aiono could not provide any information about this and did not remember having the scan.
She said that she continued seeing her GP and complaining of pain in the neck, shoulders, lower back and knees. She ascribed the latter mentioned symptoms to the whole body being “shaken” in the accident. She reported that she has told the doctor on multiple occasions that her lifestyle has been much altered by the injuries from motor accident.
She is obtaining psychological interventions though a GP (enhanced primary care) programme. However, she is no longer receiving any specific treatment for the motor accident injuries.
She uses simple analgesia and hot showers for relief of aching in multiple parts of the body.

Subsequent injury

Ms Aiono mentioned the workplace assault on 22 November 2022 when a client hit her on the head with an open hand causing her to fall. She said the incident exacerbated the symptoms in her lower back and knees. She described her left leg hitting a chair and the client then pushing his knee into her lower back whilst she was on the floor.
An ambulance attended after this assault, and she was checked over although she did not require hospital evaluation. She did see her GP the next day and reported an aggravation of her left knee pain more than her right knee and low back pain which has persisted since the workplace incident. I found it very difficult to establish the effect of the workplace incident on the back and knee pain, in that she was seemingly (initially) unable to answer any questions as to the degree of worsening symptoms and moreover if those symptoms had settled down to baseline after a period. In the finish, she indicated that symptoms at the lower back and knees were a “bit worse” since the workplace assault and have not returned to their pre-assault state.
GP records also refer to left shoulder pain after the workplace incident which reportedly was improving. However, again, Ms Aiono could not provide a coherent account of the chronology of her symptoms in various body parts.
Ms Aiono said she had only a few days off work post assault and does not report receiving any treatment such as physiotherapy for the work injury. As noted, she still completes her pre-injury duties whilst noting that she does not feel safe at work.
I reviewed the content of the GP records with Ms Aiono from the time of the accident to present date, noting frequent complaints of knee pain, some complaints of low back pain during 2022 (as well as the shoulder pain in January 2022 and neck pain in November 2021) but no complaints of neck or shoulder pain. Ms Aiono could not really shed any light about the contents of these GP entries.
I asked her about the hiatus in her regular visits during 2023. She said that it was hard to get an appointment because the GP surgery reduced its hours (compounded she said by her own work commitments).
I also asked about the paucity of reference to the motor accident during 2023 and 2024. She could not answer this but did remember taking her son to the doctor during 2024, but nothing else.
At home, she reported that her sons and husband complete all the chores and yard work. She still does some cooking and visits the shops if her son accompanies her. She can also drive her car to the shops. She is incapable of long-distance walking, she said, due to low back pain and knee pain.

Current symptoms

Ms Aiono described minimal neck pain which is located at the base of the neck with symptoms spreading to the trapezial regions, she stated that right was worse than left. She was unable to answer questions as to the frequency of this pain or the precipitants aside from the fact she said there were symptoms occurring every day. There was a long pause before I could even establish the latter information.
She stated that the trapezial pain spreads down the lateral aspects of the arms stopping at the elbow.
She has difficulties elevating the arms due to this shoulder/trapezial pain which she rates as 7/10 in intensity.
Intermittently, there are numb sensations in all fingers on both sides “coming and going”.
She complains of middle and lower back pain with prolonged sitting and standing. However, she appeared to sit comfortably during a nearly 90 minute history taking interview.
Abdominal and chest wall bruising has resolved although she reported episodic, random non-specific pains at the lateral chest wall and in the abdomen but could not identify frequency or precipitants.
She pointed to the lumbosacral region as a site of pain which she rates as 7/10 in intensity, with radiation down the posterior aspects of both legs into the medial feet. I asked when this lower limb radiation commenced, and she stated: “It’s been a while now”.
She does not report any leg symptoms and specifically no numbness, pins and needles or other sensory disturbance in the lower limbs.
Again, it was extraordinarily difficult to obtain answers to straightforward questions about presence or otherwise of urinary and faecal incontinence (to ascertain neurological involvement). Eventually I established that she suffers from painful defaecation due to constipation, which she ascribes to poor water intake and insufficient dietary fibre. There is no incontinence.
At the knees there is bilateral pain, which Ms Aiono reported was worse in the right than the left (though at examination definitely left more than right) anterior and posterior pain. I asked about knee swelling and she reported that she has not noticed this, given presence of her already “large” legs. Knee pain she said was the main problem with prolonged walking and sitting.

Physical examination

At the commencement of the examination, I asked her to try her best with all requested movements or else it would be difficult for me to interpret clinical findings and assess permanent WPI. She indicated that she would co--operate whilst advising me of any unreasonable pain levels. All movements would be active.
Ms Aiono’s weight was 123kg and height 154cm. There was obese body habitus. Her gait was unremarkable for her large body habitus.

Neck

She removed her top very slowly demonstrating at least two thirds of normal right shoulder elevation though more limited (one half) left arm elevation.
Active neck movements were minimal in all directions but uniform (10% of normal range). I put to Ms Aiono that she had been nodding her head up/down and shaking her head from side to side during the interview without apparent discomfort and demonstrating a far greater range of movement. She said that right now (during this part of the examination) she was not experiencing pain but was fearful of inducing shoulder pain (trapezial regions) if there was excessive neck movement.
I then asked her to undertake active neck movements a further three times, the observations of now very minimal neck movement (10% of normal) remained unchanged.
I asked the claimant how she manages to drive with such reduced neck movement – she said it was the fear of pain that was presently deterring her from moving the neck through a greater range and that she did not fear having pain whilst she was driving.
There was mild tenderness at the neck base although there was no guarding or spasm in the trapezial muscles or paravertebral muscles.
At the upper limbs, there was bilaterally normal sensation and symmetrical reflexes. Upper limb neural tension signs were negative bilaterally. There was no clinically significant wasting of the arms (35 cm) nor forearms (30 cm) at corresponding points 5cm above and then below the elbow flexor crease.
Sensory testing was difficult due to the claimant having difficulty answering straightforward questions. Eventually it was established on testing that there was normal upper limb sensation throughout when compared with that over the forehead, on testing with a tissue.
There was normal right upper limb strength. At the left upper limb, there was generalised giving way type of weakness associated with complaints of pain at the left trapezial shoulder girdle region.

Shoulders and upper limbs

Active shoulder movements are shown in the following table[5]. Movements (where restricted) were repeated to check for consistency and measured with a goniometer.
[5] Where there was inconsistency, each measurement is recorded. Where there was consistency there is only one measurement noted.
At times, I would ask Ms Aiono to move her arms backwards and she would then move them forwards (opposite to my request), which she did several times for reasons I did not understand. I had to visually demonstrate the requested movement on multiple occasions and was able to successfully complete this part of the examination.

Shoulder Movement

Right

Left

Flexion

120, 140, 130

100, 90, 90

Extension

50

20, 20, 10

Abduction

110, 120, 160

90, 90, 100

Adduction

70, 60, 50

40, 10, 20

Internal rotation

80

80

External rotation

90

90

There was no muscle wasting about the shoulders and impingement tests were bilaterally negative.
With the left hand, she could reach behind to her buttock. With the right hand she could reach behind to her bra strap.
She said that the combination of low back pain as well as trapezial/shoulder girdle pain worse on the left was the cause of the bilateral shoulder motion restriction.
I put to her during the course of the examination that her GP as well as Dr Woo have at various stages since the 2021 motor accident observed a full range of shoulder movements (as well as neck movements). She responded by saying, “but I am in pain now” which, in so far as the neck was contrary to what she had said..
All movements of the other upper arm joints (elbows and wrist) were normal.

Lower back

Lower back movements were very restricted. Range of flexion and extension were just one fifth of normal in each direction. Lateral flexion was better, (70% of normal on either side) and rotation to on both sides was half normal range. There was no muscle spasm or guarding at the lumbar spine.
Later, Ms Aiono bent over demonstrating a much greater range of motion in order to adjust her socks. I put this discrepancy to her, and she could not provide any explanation for the difference I had observed between the formal and informal examination findings.
She could sit with each leg extended, the equivalent of 80 degrees of straight leg raising on both sides without complaint of pain.

Knees and lower limbs

Knee and ankle jerks were bilaterally absent due to her body habitus.
She reported a global sensory deficit at the left lower limb with normal sensation at the right lower limb. The reported posterior lower limb symptoms reaching the medial feet are not of a non-verifiable type – they are very generalised and not in the distribution of a single or complete dermatome.
There was normal right lower limb strength whereas at the left lower limb there was generalised giving way weakness, associated with complaints of both low back pain and left knee pain. Generalised weakness is not a neurological finding as it is not restricted to a single nerve root distribution. The demonstrated weakness at the left lower limb was said to be due to fear of pain.
There was 1cm measurable wasting at the left thigh (62cm) compared with the right thigh

63cm, 10cm above the patella. There was no measurable wasting at the mid-calves, with

43cm bilaterally.
The right knee moved actively through 0-110 degrees and the left 0-100 degrees. It was difficult to obtain the abovementioned knee range of motion due to her reluctance to move for fear of causing knee and back pain. There was no crepitus at the right knee although there was painful crepitus at the left knee. The knees were bilaterally stable in the anteroposterior and mediolateral planes. At the left knee, both medial and lateral joint lines were tender. No effusion was present at either knee.
The claimant said that her chest and abdominal bruising have long since resolved. She said she did not injure her legs.

ASSESSMENT OF THE INJURIES

The Panel notes that the claimant has been examined by others including medico-legal experts on both sides. The Panel is, in accordance with cl 6.21 of the Guidelines to consider the claimant’s impairment “as it is at the time of the assessment.”
The claimant whilst pleasant, as note was reported to be a difficult historian who could not provide a coherent, well ordered sequential history. The Panel is however satisfied that the claimant’s history and the clinical and other records provide sufficient information for the Panel to undertake the assessment of impairment.
The Panel also notes one of the difficulties in the examination was measuring the claimant’s loss of movement or motion due to the effect of the injuries as opposed to Ms Aiono’s fear of generating pain.

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 (cl 6.111).
The spine is divided (cl 6.131) into three regions: 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.
The most common DRE category II 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 no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
The usual DRE category III requires there to be a finding of 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 found on examination”:
(a)    loss or asymmetry of reflexes (see Table 8);
(b)    positive sciatic nerve root tension signs (see Table 8);
(c)    muscle atrophy and/or decreased limb circumference (see Table 8);
(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.

Lower back injury

The Panel accepts there was a lower back injury based on the records of Liverpool Hospital. At page 41 of the claimant’s bundle, the CT scan identifies “fractures of the left transverse processes of L4 and L5.” It is reasonable to accept that there was also some associated musculo-ligamentous injury to the lower back at the time.
The Panel assesses lumbar impairment at 5% for the following reasons:
(a)    section 3.3g at page 102 of the AMA 4 Guides provides that “a spinous or transverse process fracture with displacement without a vertebral body fracture is a category II impairment because it does not disrupt the spinal canal”;
(b)    table 6.7 in the Guidelines provides for a DRE category II categorising for “transverse or spinous process fracture with displacement of fragment, healed, stable”;
(c)    while the claimant has two fractures or fractures to two different vertebrae, cl 6.132 of the Guidelines says that “multiple impairments within one spinal region must not be combined”, and
(d)    on examination Medical Assessor Lahz did not find two or more signs of lower limb radiculopathy. There were absent reflexes due to the claimant’s weight, not injury; there were no positive nerve root tension signs; there was no evidence of muscle atrophy; while there was weakness it was global and was not anatomically localised to an appropriate nerve root distribution and, there was generalised loss of sensation also not anatomically localised to an appropriate nerve root distribution.

The radiology was difficult to view and the report from the hospital does not indicate whether the transverse fractures were displaced or not. In the absence of expert radiological opinion, the Panel considered it appropriate to assess impairment on the basis that there was displacement and that a DRE category II impairment of 5% should be awarded.

Neck injury

While the Panel accepts the mechanism of the accident could have resulted in a neck injury, the Panel notes there was no reference to a neck injury in the contemporaneous documentation. A neck injury (or neck pain) is not mentioned in the hospital reports, nor the early GP records or the physiotherapist’s records. The first reference to neck symptoms is not until three months after the accident in November 2021. While a busy hospital or GP might omit a reference to injury on one or two occasions, the Panel does not consider it likely that three health providers (the hospital, GP and physiotherapist) all failed to record neck pain or neck symptoms. The Panel does not accept that the claimant did have neck pain and reported that neck pain from the time of the accident. Having made that finding, the Medical Assessors are of the view that there is no medically plausible explanation for the three-month delay between the accident and the apparent onset of reported neck symptoms. It is the Panel’s view therefore that any neck complaint or symptoms were not caused by the accident.
If the Panel is wrong and the claimant did sustain a neck injury in the accident, then the relevant impairment category would be DRE category I – 0% for these reasons:
(a)    the claimant reports pain in the neck;
(b)    on examination there was no guarding, no dysmetria and while the claimant complained of some symptoms in both arms reaching the elbow, they were global, generalised, non-specific and were therefore not of a non-verifiable radicular type in a specific dermatomal distribution as required by the Guidelines. The claimant does not therefore qualify for a DRE category II impairment, and
(c)    on examination the claimant did not have two or more of the five signs of radiculopathy specified in cl 6.138. All reflexes were present and equal, there were no positive nerve root tension signs, there was no muscle atrophy, there was no muscle weakness that could be anatomically localised to an appropriate spinal serve root distribution and there was no sensory loss. The claimant does not qualify for a DRE category II impairment.

Shoulders and arms

Consistency

The Panel notes the following inconsistencies and variations:
(a)    there was inconsistency within Medical Assessor Lahz’ examination in that there was a significant difference noted between informal observations of free, fluid neck movements during the interview whereas virtually no neck movement was present during the formal component of the examination. Being “in pain right now” does not explain the sudden offset and onset of signs observed, whereby the claimant moved her neck in a natural and spontaneous manner during the interview, becoming then unable to move her neck in any direction by more than a few degrees during the formal component of the physical examination;
(b)    shoulder movements recorded by Medical Assessor Lahz were also highly variable in many of the six planes as set out in the table in both the left (allegedly injured) and the right shoulder;
(c)
there were significant, very gross variations noted with respect to range of left shoulder motion when the claimant was examined by Medical Assessor Lahz compared to examinations conducted by Dr Woo and records from Dr Liew on

22 January and 23 November 2022. This was put to Ms Aiono and for which she provided explanations which were not medically credible, and
(d)    the Panel also notes that when examined by Dr Woo, the claimant had a full range of motion in her right shoulder however she had a significant reduction in motion when examined by Medical Assessor Lahz. As the claimant said she had not injured her right shoulder in the accident and had no pre-accident injuries or conditions in the right shoulder at the time of the accident it is difficult for the Panel to accept the right shoulder measurements as being an accurate reflection of the claimant’s true range of motion.
The Panel notes there were no objective findings at clinical examination such as muscle wasting/impingement signs about the shoulder girdles that would have been present if there were significant injury-related structural pathology at the shoulders with ongoing disuse.
The radiology performed in November 2021 and March 2022 do not reveal any pathology sufficiently serious to explain the gross restriction of motion in the claimant’s left shoulder. Bursitis and inflammation of the shoulder tendons are non-specific findings which are common and not always associated with trauma from accidents.

Causation

The claimant was the front seat passenger in a motor vehicle hit from the driver’s side. The Medical Assessors are of the view that in their experience, the mechanism of the accident could have resulted in a soft tissue injury to the shoulder from the seat belt or a soft tissue injury from the impact of the collision. The Medical Assessors are of the view that in their clinical judgment, the mechanism of the motor accident, is not one with significant forces and loading and is incapable of causing enduring mechanical shoulder injury with the level of motion limitation in both of the claimant’s shoulders.
Liverpool Hospital states the primary, secondary and tertiary reviews were done but there was no mention of a shoulder or arm injuries at any of those reviews. No radiology was performed at the hospital of those areas. If the claimant did sustain an injury to her shoulder or arm, the Panel would expect there to be some mention of it.
In the nine attendances on Dr Liew after the accident there is no record of shoulder or arm pain. The first record appears on 5 November 2021 with a complaint of left arm pain but there was no sensory loss and no weakness but some reduced range of motion in the left shoulder. Radiology was ordered of the left shoulder and left elbow. Dr Liew completed nine certificates of fitness and before 5 November 2021 but did not include left shoulder or left arm as an injury in any of them. The Panel does not accept that the hospital in three surveys and then Dr Liew failed to record on nine separate occasions in his notes and in nine certificates of fitness complaints of left shoulder and left arm pain. The Panel is not therefore satisfied that the claimant reported an injury to her left shoulder and arm until

5 November 2021 and that the claimant therefore did not have any significant or noticeable left shoulder and arm pain before then. The Medical Assessors are of the view that there is no plausible medical explanation for a three-month delay in the onset of symptoms in the left shoulder and arm and that therefore the claimant did not sustain injuries to these areas.
It is the Panel’s view that if the claimant did sustain a frank or specific injury to her left arm and shoulder, then any injury was soft tissue, and it has resolved for the following reasons:
(a)    on 28 January 2022, Dr Liew the claimant’s long time GP recorded a full range of motion in the left shoulder;
(b)
the claimant reported a slight restriction of motion in the left shoulder on

22 March 2022;
(c)    on 28 October 2022, Dr Woo reported to the claimant’s solicitor that the claimant’s right shoulder motion was full and there was a slight restriction of movement in the left (internal rotation);
(d)    on 23 November 2022 after the assault at work, Dr Liew records the claimant had pain in her left shoulder but had a full range of motion, and
(e)    under the heading “current symptoms” on 19 April 2023, Dr Machart does not list or record complaints of left shoulder, left arm or left elbow pain and therefore did not examine the shoulders.
The Panel also notes that there was no abnormality in the left upper limb (elbow or wrist) identified by Medical Assessor Lahz in her examination.
The Panel is not satisfied the claimant sustained a left shoulder or left arm injury. If she did the injuries were short term from which the claimant has recovered leaving no residual impairment resulting from the accident.
The Panel must also consider whether any shoulder or arm symptoms the claimant is now experiencing are caused by a neck injury. The medical members of the Panel note that Medical Assessor Lahz did not find any neck muscle spasm or guarding that could limit shoulder motion. The degree of bilateral shoulder motion particularly on the left is not consistent with restriction due to neck symptomatology, in the clinical judgment of the medical members of the Panel. There was also no objective anatomical neurological abnormalities of spinal cord, plexus or peripheral nerves present in the upper limbs to account for the significant loss of movement at the shoulders.
The Panel is not therefore satisfied that any shoulder impairment results from any neck injury that may have been caused by the accident.

Left and right knees

The medical records of Dr Lieu indicate Ms Aiono has had long-standing symptoms in her knees dating back to 2005 (for the left) and 2012 (for the right). These had been investigated, medication prescribed, and a diagnosis of osteoarthritis made.
Ms Aiono did complain of left knee pain at the hospital which was investigated with an X-ray but there is no record of right knee pain at that time. Dr Liew has a record of left knee pain (with a bruise) after the accident and both knees were reported as painful in October 2021 however the Panel cannot see a reference to a right knee injury in any of the certificates of fitness completed by Dr Liew.
The Panel accepts that the claimant did injure her left knee in the accident as her left knee either hit the dash or the door after the impact from the claimant’s right. The Medical Assessors are of the view this injury is a soft tissue injury on a background of pre-existing symptomatic arthritis.
In terms of impairment in the left knee, there is a mild reduction of motion and there is painful patellofemoral crepitus present. The Panel notes that pain and crepitus was present in the left knee on 12 May 2017 and crepitus was again present on 8 October 2018 (according to Dr Liew’s notes) but the claimant had a full range of motion at those times. After the accident, the claimant had a full range of knee motion when examined by Dr Liew on 27 August 2021, 21 April 2022 and 14 November 2022. Dr Woo records a normal range of motion in October 2022. Dr Machart reports inconsistency in that there was 60 degrees of flexion when she was asked to bend her knees but she demonstrated an ability to fully flex when sitting. Medical Assessor Bodel recorded no abnormalities (such as effusion or crepitus) but did record a minimal restriction of motion to 120 degrees in each knee.
The claimant’s current range of knee motion measured by Medical Assessor Lahz was 110 degrees in the right and 100 degrees in the right suggesting a further deterioration of the claimant’s knees since the examination by Medical Assessor Bodel six months ago.
The Panel is not satisfied that the current level of left knee impairment is caused by the accident and that any soft tissue injury causing an aggravation of the pre-existing condition has ceased. It is the Panel’s view that the current level of impairment (and deterioration of range of motion in the knee) reflects a continued progression of her underlying arthritic condition. The claimant has a 0% WPI as a result of the aggravation injury caused by the accident.
The Panel does not accept that the claimant injured her right knee due to an absence of recorded complaints in the documents. In terms of impairment in the right knee, as there was no effusion, no crepitus and a normal range of motion when examined by Medical Assessor Lahz, there is no assessable impairment pursuant to any section of the AMA 4 Guides or clause in the Guideines and therefore the Panel does not propose to engage further in the issue of causation.

CONCLUSION

Clause 6.23 of the Guidelines provides that:
“Certain injuries may not result in an assessable impairment … For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment.”
The Panel acknowledges the claimant’s chest and abdominal soft tissue injuries due to the accident (seatbelt bruising) and notes Ms Aiono, through her solicitor, concedes these have resolved. They do not attract any impairment percentage.
The claimant denied any leg symptoms other than injuries to her knee. The Panel is not satisfied that if there was a frank or specific injury to the claimant’s legs, there is any assessable impairment in relation to it.
The Panel assesses the claimant’s WPI resulting from her accident-related injuries is 5% as follows:
(a)    neck  no injury (and 0% impairment in any event);
(b)    lower back                 DRE category II – 5% WPI;
(c)    left shoulder               no injury therefore no impairment;
(d)    left arm  no injury therefore no impairment;
(e)    left knee  0% WPI;
(f)legs   no frank or specific injury – any impairment related to lower back;
(g)    right knee                  no injury (and 0% impairment in any event), and
(h)
chest and abdomen   recovered - no ongoing impairment.
As the Panel has come to a different decision to Medical Assessor Bodel it follows that his certificate should be revoked.

Shoulder Movement	Right	Left
Flexion	120, 140, 130	100, 90, 90
Extension	50	20, 20, 10
Abduction	110, 120, 160	90, 90, 100
Adduction	70, 60, 50	40, 10, 20
Internal rotation	80	80
External rotation	90	90

[2024] NSWPICMP 754

4 November 2024