AAI Limited t/as GIO v BFY
[2022] NSWPICMP 75
•5 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v BFY [2022] NSWPICMP 75 |
| CLAIMANT: | BFY |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 5 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of WPI and insurer’s review under section 63; claimant alleged injuries to her lumbar and cervical spine and both shoulders; Assessor found WPI of 17%; insurer argued causation of injuries not properly dealt with; Held – claimant assessed as DRE I in neck and lower back, shoulder movement inconsistent and 0% WPI given; claimant’s total WPI not greater than 10%; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Assessor Bodel dated 6 July 2021. 2. Certifies that the degree of [BFY]’s permanent impairment resulting from the injuries caused by the motor accident on 12 March 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
[BFY] (the claimant), a legal practitioner in her late 30s, was involved in a motor accident on 12 March 2017. She was the seat belted driver of a car that was hit from behind after a vehicle in front stopped suddenly. After the initial impact, her car was forced into the car in front. The airbags of the car deployed.
[BFY] made a claim against GIO, the third-party insurer of the vehicle that hit [BFY]’s in accordance with the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
GIO has wholly admitted liability[1], but a dispute has arisen between [BFY] and GIO as to her entitlement to damages for non-economic loss. That dispute was referred to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) and the proceedings were transferred to the Personal Injury Commission (the Commission) upon the commencement of the Commission on 1 March 2021. Medical Assessor Bodel determined the dispute on 6 July 2021.
[1] The insurer’s section 81 notice is dated 24 January 2018. 2 The current maximum as of October 2021 is $590,000.
The insurer was dissatisfied with Assessor Bodel’s determination and applied to the Commission for a review of that decision under section 63 of the MAC Act. The President’s delegate determined that the application for review should proceed, and a Medical Review Panel (the Panel) was convened.
LEGISLATIVE FRAMEWORK
Provisions in the Motor Accidents Compensation Act
[BFY]’s claim for damages is made under the MAC Act. Her damages are to be considered in the context of Chapter 5 of that Act as follows:
(a) damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with s 1342, and
(b) entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (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].
[2] See section 132 and section 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments, further medical assessments and the Review of medical assessments by a review panel[3].
[3] 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)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
General Provisions
Clause 1.21 of the Guidelines says that: “The evaluation should only consider the impairment as it is at the time of the assessment”.
While there is a section in the Guidelines corresponding to each chapter of the AMA4 Guides, there is no separate section in the Guidelines providing for the assessment of pain. Clause 1.38 deals with the assessment of pain:
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”
The Guidelines provide general guidance to the Panel when there is inconsistency within the examination or when considering the records including other examinations as follows:
“1.40 The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.
1.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of nonclinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
Assessment of the spine
When undertaking an assessment of the spine, each of the three segments of the spine (cervical, thoracic and lumbar) must be considered separately and then Diagnostic Related Estimates (DRE) are applied to determine the degree of impairment resulting from the injury to each of the three segments.
Table 7 in the Guidelines includes the following summary of three of these DREs relevant to this claim and the Panel’s assessment:
(a) low back pain, neck pain or symptoms – DRE I;
(b) low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II, and
(c) low back or neck pain with radiculopathy – DRE III.
The Guidelines contain a definition of non-verifiable radicular complaints which is relevant to the DRE II categorisation as follows[5]:
“Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”
[5] Table 8.
There is also a definition of radiculopathy which is relevant to the categorisation of an injury as DRE III as follows[6]:
“Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
1.138.1loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.2positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.3muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.4muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
1.138.5reproducible sensory loss that is anatomically localised to an
appropriate spinal nerve root distribution.”
[6] Clause 1.138.
Assessment of the shoulders
When assessing upper extremity impairment, the Panel notes that the shoulder is considered part of the upper extremity as is the upper arm, forearm, hand and fingers. Injuries to various parts of the upper extremity are assessed, then combined to determine an “upper extremity impairment” which is then converted into a WPI percentage.
In [BFY]’s case, she says she injured her right and left shoulders but no other parts of her upper limbs. The following clause of the Guidelines provides guidance:
“1.50Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.
1.50.3If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
1.50.4If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
THE ASSESSMENT UNDER REVIEW
Assessor Bodel issued his Certificate of Assessment following an assessment on 26 June 2021.
He was asked to assess bilateral soft tissue shoulder injuries and soft tissue injuries to the claimant’s lower back and neck.
The claimant is reported to have told Assessor Bodel that she was fit and healthy before the accident, attending the gym at least four days a week and practising yoga regularly as well as walking often.
Assessor Bodel records that the claimant’s car was stationary when she was hit from behind forcefully and “she was thrown around quite violently”. She said she was pushed into the vehicle in front and that vehicle into the vehicle in front of it. She said she was “briefly knocked unconscious”, her airbags deployed. Dr Bodel took a history from [BFY] that police and ambulance attended and she was taken to Manly Hospital with her neck in a brace.
Assessor Bodel takes a history of initial headache, neck, right shoulder girdle pain and pain in the right wrist, hand and thumb “as well as extensive bruising along the line of the seatbelt, over the top of the right shoulder, the centre of the chest wall and the lower part of the abdomen”. The claimant also complained to Assessor Bodel of hitting her right knee under the dashboard. She says she was observed then discharged home.
[BFY] is also reported to have had an MRI of the neck and lumbar spine and Assessor Bodel says he has no record of any nerve root compromise at the neck or the back. He noted the nerve conduction studies undertaken by Dr Skulina, and the normal study MRI of ‘early 2018’. Assessor Bodel noted [BFY]’s referral to a pain specialist and being booked into an ADAPT program which did not go ahead due to Covid. He reported she was “overwhelmed” by her psychological state and was pain focussed with severe headaches she says are cervicogenic.
The claimant complained of pain at the base of her neck and over the top of both shoulders, right worse than left, pain in the interscapular region and the lower part of her back referred into both legs. She also has pain:
“… in a glove and stocking distribution involving the right arm and right leg. It involves all surfaces of the right upper limb and all five digits of the right hand. It also involves all surfaces of the right lower extremity and all five toes.”
Again, Assessor Bodel notes the claimant was “incredibly pain focused” which made it difficult for [BFY] to focus on her physical ailments which he was to assess. He noted she rose slowly with no leg length inequality or spinal deformity and that she walked without a limp.
When her neck was examined:
(a) there was marked tenderness at the base on the right side with guarding;
(b) she had reduced range of neck flexion extension and rotation marked with extension and rotation to the left;
(c) slight restriction of shoulder movement;
(d) no reflex abnormality or objective sign of sensory loss in any dermatomal distribution;
(e) numbness over the whole of the right upper limb which he considered was non-organic and not a non-verifiable radicular complaint, and
(f) no wasting.
The claimant’s thoracic spine was reported by Assessor Bodel to be normal on examination.
[BFY]’s lumbar spine was examined and there was tenderness and guarding on the right side. She had pain and right buttock point when flexing her hands to her knees and reduced lateral bending to the left. She had no wasting in the thigh or calf although. There was no weakness in the joints although there was “global weakness” in a non-dermatomal distribution. Reflexes were present and equal and there were no signs of radiculopathy.
When her shoulders were examined, Assessor Bodel recorded restriction in both shoulders the right more so that the left but says there was no visible sign of wasting. There was local tenderness over the rotator cuff on the right but not he left. She was tentative in all her movements, but the assessor says that with encouragement he obtained measurements of her shoulders which he felt were accurate.
[BFY]’s legs were equal with no wasting other than a 0.5cm difference in the calf on her right side. There was no restriction of movement, no sensory loss that matched a dermatomal distribution, no weakness or wasting and no signs of radiculopathy.
He considered [BFY] anxious but consistent with ongoing pathology in the neck, back, right shoulder and to a lesser extent the left shoulder.
He reviewed the documentation and radiology.
In terms of permanent impairment, he said:
“This lady has clinical evidence of ongoing permanent impairment of function in the neck, lower part of the back and both shoulders. Her clinical presentation is difficult because of the significant psychological disturbance and the psychological overlay which is all pervading in her clinical presentation. It is very difficult to get her to focus on the physical injuries for the purposes of this assessment. I am satisfied, however, that there is permanent impairment and ongoing disability associated with the physical injuries.”
He found causation of all injuries and diagnosed a “probable rotator cuff pathology in both shoulders, the right worse that the left”. He notes a significant psychological disturbance.
He assessed her WPI as:
(a) lumbar spine DRE II 5%;
(b) cervical spine DRE II 5%;
(c) right shoulder 6% due to range of motion impairment, and
(d) left shoulder 2% due to range of motion impairment.
SUBMISSIONS FROM THE PARTIES
Insurer’s submissions
36. The insurer argues that Assessor Bodel did not disclose his path of reasoning with respect to causation in particular in respect of the claimant’s shoulder complaints and says:
(a) there were pre-existing complaints of “dropping things” due to weakness in the upper limbs;
(b) there were pre-existing complaints in the lumbar spine as evidenced in Dr Tsang’s records;
(c) there were no complaints of shoulder symptoms until nine months after the accident, and
(d) there is no explanation for the diagnosis of “probable rotator cuff pathology”.
Claimant’s submissions
The claimant’s previous solicitor lodged submissions with the Commission. The claimant’s current solicitors have lodged no relevant submissions in this matter.
The submissions filed deal mainly with the issue before the President’s delegate, arguing that the assessor did make findings on causation that are explained and that he assessed the claimant on the day in accordance with his clinical judgment and expertise.
Procedural matters
The Panel met on 31 January 2022 following which a report was issued with directions to the parties.
Shortly before it met, the Panel was advised that the claimant had terminated the services of her previous solicitor and retained Brydens to act for her. Brydens requested a 10-week deferral of the Review however the Panel declined to adjourn the Review on the basis that it was meeting and would be setting a timetable for the finalisation of the assessment that would likely provide sufficient time for the claimant’s new solicitor to become familiar with the matter and obtain instructions from the claimant.
In its report to the parties, the Panel:
(a) indicated all of the claimant’s injuries (lower back, cervical spine and both shoulders) would be considered afresh;
(b) requested additional documents in particular pre-accident general practitioner (GP) details, and
(c) advised a re-examination was required and details were given[7].
[7] The re-examination was rescheduled due to a Covid exposure.
The Panel issued a direction to the claimant for the identification of any pre-accident treatment providers and on 7 February 2022, the claimant’s solicitor advised that, in accordance with the claimant’s instructions, there were no pre-accident GPs other than those doctors at the Vale Medical Practice.
There were 54 individual documents lodged in the portal. Some of these were new documents and others were documents that had been relied on in the original assessment. To avoid any doubt, the Panel issued directions to the parties for the provision of a bundle of documents each. The insurer provided its bundle on 4 March 2022 and the claimant provided her bundle on 10 March 2022. The Panel confirmed with the parties the receipt of the bundles and indicated that it would proceed on the documentation within those bundles and that no further submissions were to be provided.
The Panel noted that the claimant’s bundle of documents did not include the report of Dr Champion or any submissions from the claimant’s current solicitors relevant to
Assessor Bodel’s determination. The Panel obtained clarification from the claimant’s solicitor that those two documents should also be relied upon.
No further documents or submissions have been received and the Panel and has proceeded therefore to assessment.
REVIEW OF THE EVIDENCE
Treating medical evidence
The following chronology is taken from the various records provided by the parties[8]:
[8] Unless otherwise stated the chronology comes from the Vale Medical Practice records.
(a) 6 March 2012 – claimant attends Vale Medical Practice (Vale) car accident earlier today – partly her fault, no major injuries, going through a shock status for few hours, heaviness in chest and feeling anxious.
(b) 26 June 2012 – attendance on Vale for anxiety attacks – pushing on chest, light-headed body rocks last few days and intermittent over six months.
“Conflict with employer low mood six months … worse symptoms after phone call re meeting with employers representatives. Escorted from workplace last Friday … past history of depression 7 years ago/PTSD”. A mental health referral was given.
(c) 25 February 2017 – the reason for the visit to Vale was said to be STI screen and lower back pain. Previous CT scan – protruding disc? Had this done years ago. Aggravated by sitting down. No referred pain. CT scan – lumbar spine.
(d) 13 March 2017 – Discharge summary from Manly Hospital[9] – presented with thumb, thoracic, chest and lower back pain – X-rays were taken of the right thumb, lumbar and thoracic spine and chest with no obvious fractures and diagnosed with what was suggested to be soft tissue injuries. In terms of the back pain, the hospital records this was “acute on chronic low back pain”. The letter to Dr Tsang opens with a presentation for “Pain, neck”.
[9] Page 31 of the insurer’s final bundle of documents in the Commission’s electronic file.
(e) 13 March 2017 – claimant attends on Dr Blom of Vale to discuss bloods results taken earlier and she was quite tired. “Also reports a motor vehicle accident at 3.30pm yesterday” he asked her to return at 4.30pm so they could discuss her injuries, but she did not.
(f) 27 March 2017 – claimant attends on Dr Tsang of Vale. The record notes she has had low back pains – last few months often dropping things from either hand, has been stressed at work but recently had holidays and still dropping things.
(g) 28 March 2017 – CT scan lumbar spine with a clinical history given to the radiologist of “right greater than left sciatica. Low back pain”. Minimal broad based disc bulges were seen at L2/3 and L3/4 with mild to moderate broad-based disc bulged at L4/5 and L5/S1 however there were no sign of central canal stenosis or lumbar nerve compression.
(h) 24 July 2017 – claimant attends on Dr Tsang of Vale with worsening low back pains and sciatica since March – “did not do physio strongly advised to see physio ASAP if not improving – still dropping things”.
(i) 7 August 2017 - MRI of Brain history of dropping things especially from the right hand for one year. Headaches and forgetfulness. Possible cerebral tumour or multiple sclerosis – normal study and no cause for symptoms.
(j) 16 August 2017 – claimant attends on Dr Tsang of Vale with a history of
“still dropping things”. Referral written for Dr Christian Skulina for management of “1 yr dropping things from either hand / lack of concentration / headaches / dizziness / pressure in head … stressed at work”.
(k) 17 September 2017 – claim form[10] signed by claimant denies previous conditions or injuries, no previous compensation claims. Alleges injuries to neck and head, arm (bruising) and thumb, back (mid/lower) and chest. Denies that the ambulance attended and says she was treated in the emergency department of Manly Hospital. Says she called 000 on the day of the accident, police took her details at the scene and that she reported the accident to the police assistance line.
(l) 16 November 2017 - report to police link command[11] – two vehicles “actual minor traffic crash” – tow away only. The report indicated that no persons were injured from either vehicle. The report does not suggest the police attended the scene on the date of the accident.
(m) 22 November 2017 – claimant attends Vale and the medical certificate accompanying the claim form is signed by Dr Monica. The notes record – aches and pains all over back with muscular spasm / knots having weekly physio. Paraesthesia R UP and RLL for CT
[IMAGE UNABLE TO RENDER]
(n) 23 November 2017 – CT scan neck[12] - history given of “right upper limb paraesthesia” – while there were minimal disc bulges at C3/4, C4/5 and C5/6, no significant foraminal or canal stenosis and the cause of the paraesthesia was said to be unclear.
(o) 7 December 2017 – the claimant attends Dr Jesudason of the Vale and a Centrelink medical certificate is issued. The record in the notes reads, “back and right shoulder since MVA 3 sessions of physio and not significantly better. Shoulder back and leg movements OK, sensation grossly normal”. Also 7 December 2017 Centrelink certificate – right shoulder and back pain MVA – temporary uncertain prognosis – neck pain right arm numbness and tingling, lower back pain leg numbness and tingling signed by Dr Jesudason.
(p) 23 February 2018 – MRI cervical spine with a history of a whiplash injury in March 2017 and right-sided paraesthesia in the right hand and right foot. Bilateral shin pain, low back pain and cervical spine, Headaches. Possible right cervical radiculopathy. Possible spinal cord injury or compression. – normal study no evidence of radiculopathy or cervical spine injury.
(q) 23 February 2018 – MRI lumbar spine same history as above with addition of “possible sciatica”. Conclusion “Normal study. No cause for the symptoms is evident.”
(r) 7 May 2019 – bone scan with CT of the lumbar spine and pelvis showing no lumbar facet joint arthritis or significant disco-vertebral disease but “minor focal arthritic change at the inferior end of the right sacroiliac joint.”
(s) 30 March 2020[13] – MRI scan cervical spine and lumbar spine referral with a history of Right sided paraesthesia and weakness, urinary bladder weakness, neck injury 2017 ?cervical nerve root irritation, LBP ?corda equina syndrome / R sciatica.
[10] Page 18 of the insurer’s final bundle of documents.
[11] Page 27 of the insurer’s final bundle of documents.
[12] Page 33 of the insurer’s final bundle of document.
[13] Page 30, claimant’s final bundle of documents.
The claimant’s usual general practitioner, Dr Monica Tsang from Vale provided a report dated 27 December 2017[14] which says:
(a) [BFY] was first seen by Dr Tsang on 27 March 2017. [BFY] advised she had been in an accident two weeks before and had been hit from behind. Dr Tsang recorded on that day there was no swelling or bruising and [BFY] had complained of a flare up of lower back pains and R more than L sided sciatica. The claimant was tender and a CT scan of the lower back was ordered which showed no canal stenosis or nerve root compression. The diagnosis was made of soft tissue injuries with an excellent prognosis.
(b) Persisting aches and pains all over back with muscular spasm / knots paraesthesia right upper and lower limb. CT Scan neck ordered with no significant stenosis.
(c) Mobic was prescribed and physiotherapy advised.
(d) “Patient stated she had previous back problems with pain [and] sciatica a few years ago and CT [lumbar spine] – no records (not our surgery).”
(e) Dr Tsang noted the claimant was having physiotherapy and is currently seeing a neurologist “for other chronic neurological symptoms”. There is a reference to Dr Skulina.
[14] Page 34 of the insurer’s final bundle of documents.
Dr Paul Saunders, also from Vale answered a questionnaire from the insurer and it is dated 12 June 2020[15]. Dr Saunders noted an initial whiplash injury with neck, right arm and leg radiculopathy and major depression with anxiety disorder. He considered her depression severe. [BFY]’s psychological symptoms were said to have occurred soon after the accident but have become more severe over the past year.
[15] Page 289 in the insurer’s final bundle of documents.
Three bundles of notes have been provided by Vale and they show regular attendances in 2018, 2019 and 2020 on Dr Paul Saunders and others but few attendances on Dr Monica Tsang. The most recent bundle includes the following entries:
(a) 1 February 2021 – Dr Saunders, constant chronic pain. Depression reactive.
(b) 16 December 2021 – Dr Schmid records “thinking about calling ambulance today – whole body on fire. Right side of body feels numb and there are pins and needles. Wants right hand and wrist strapped as has urge to move and is in pain. Right sided neck pains, throbbing headaches”.
(c) 19 December 2021 – Dr Saunders notes, pain worsening, heat packs, right hand paraesthesia. Stress increases symptoms. Every cell in body in pain, headaches, pain down right arm, right feet, leg, low thoracic back pain, lumbar pin, right arm. Referral Neurologist Skulina and Holland.
The claimant also attended the World Square Medical practice for treatment. Her first attendance was on 25 October 2018 where the reason for visit was said to be chronic pain after a car accident a year ago and she was planning to see a pain management specialist. On 31 October 2018 she addended again requesting a referral to a pain specialist, psychologist and physiotherapists because of early morning wakening, low self-esteem, depressed mood, anxiety, stress at work, relationship problems, financial problems. A mental health plan was developed and what looks like three referrals were given (physiotherapy, Dr Charlotte Johnstone for chronic pain and Ms Ondine Hasbani psychologist). There is no indication the claimant attended these persons and no reports from them. There is another attendance on 8 December 201 noting chronic pain with supportive counselling, anxiety / depression, whiplash and right back pain with radiculopathy – leg and arm.
Ms Plahn, psychologist filled in a questionnaire from the insurer and dated it 3 September 2020. She diagnosed a Post Traumatic Stress Disorder, chronic pain and the triggering of symptoms due to the insurance process. Her symptoms were said to have been present since “the traumatic MVA” and are severe.
There is a bundle of records[16] from the Northern Pain Centre as follows:
[16] Page 52 of the claimant’s bundle. There are multiple copies of some of the reports throughout both bundles.
(a) 18 February 2019 – first attendance on Dr Lewis Holford with “widespread neuropathic pain. Central sensitisation post significant MVA”. Letter of same date to Dr Palachevskaia of the World Square Medical Centre refers to neck, thoracic and lumbar pain with complaints of right hand and right upper limb.
(b) 12 March 2019 – consultation with Dr Andrew Singer – “development of severe central sensitisation perpetuating and exacerbating [BFY]’s pain” and a plan was developed.
(c) 5 April 2019 – consultation Dr Andrew Singer – depression and widespread pain in right neck, right knee and foot but everywhere. Prescribed Joncia on 3 April 2019 (for fibromyalgic type pain).
(d) 2 May 2019 – consultation Dr Lewis Holford – no mention shoulders, back or neck but claimant complained of right sacroiliac joint pain. Letter to Dr Saunders of Vale of the same date.
(e) 8 May 2019 – consultation Dr Andrew Singer – no mention shoulder pain, lower back or neck but “widespread pain, pain right hip, pain right knee”, right hip and pain in knee.
(f) 7 June 2019 – remains anxious and depressed, has not commenced Joncia medication. Also letter Dr Singer to GIO advising of continued widespread pain particularly in the right hip and right knee. Psychological treatment was required.
(g) 24 June 2019 – cancelled appointment with Dr Andrew Singer “work commitments, will ring to reschedule”.
(h) 30 August 2019 – report from Dr Wood psychologist to Dr Holford which refers to cervical, thoracic and lumbar pain (not shoulder pain). He said he had given her a book about managing pain and he advised an intensive approach was necessary.
(i) 12 June 2020 – consultation Ms Marianne Plahn psychologist plan for weekly therapy sessions as soon as possible.
Dr Skulina has produced her notes[17] which include three letters of relevance.
(a) To Dr Tsang of Vale 24 January 2018 – diagnosis “constellation of symptoms including right upper and lower limb abnormal sensation, pain and weakness since MVA, whiplash, tension headaches, lower back pain with intermittent right sciatica”. Dr Skulina has a history from the claimant of tension type headaches and recurrent lower back pain with right sciatica. She has a report of clumsiness in both hands right more than left and a history of dropping things with weakness “these symptoms have slightly improved since the accident”. No neurological diagnosis and further tests were requested.
(b) To Dr Tsang of Vale 21 November 2018 – same diagnoses in the heading she was still complaining of tingling and pins and needs in the right hand radiating up the arm and tingling in the right leg. No significant weakness or difficulty with co-ordination. Neck and lower back pains. Nerve conduction studies had been done and could show mild chronic radiculopathy and medication was prescribed.
(c) To Dr Palachevskaia of World Trade Medical Centre 3 April 2019 page 27 – constant pain over the whole body fluctuating in intensity but there every day. She should pursue her pain management program but there is no evidence of significant underlying neurological problem
Medico-legal reports
[17] Page 188 of the claimant’s bundle of documents.
Dr David Champion - rheumatology
Dr Champion saw [BFY] at the request of her previous solicitors on 9 March
2021. She denied anything other than “trivial conditions” and said she had never had counselling for psychological or mental health disorders. When Dr Champion took her to the pre-accident records, she said anything before this accident was of “less consequence by comparison”.
The claimant said she did not remember the biomechanics of the accident although she remembered seatbelt restraint. She recalled being quite severely “jolted” and that she may have struck her head and things she blacked out for a few seconds. She felt immediate pain in her neck and chest and her head was “spinning”.
Dr Champion notes the Manly Hospital discharge summary suggests the clamant attended there the day after the accident and that she then attended her GP for what appears to have been a pre-arranged appointment to discuss blood tests and that she was advised to return to discuss the accident but did not. The claimant explained to Dr Champion it was difficult for her to get at 4.30pm and that she wanted to see Dr Tsang and made an appointment for two weeks later. [BFY] explained this by saying she was in shock and her pains worsened over days in particular her lower back pain.
Dr Champion took the claimant to the history of dropping things and said she was adamant this occurred only after the accident. She also remembered bruising including her arms but that Dr Tsang had recorded no bruising.
Dr Champion took her to the gap in the records from 27 March to 24 July 2017 and the claimant explained that she was busy with work, not sleeping well because of her pain and struggling with life.
Dr Champion reviewed the reports of Dr Skulina and the claimant took issue with his notation that she was performing intensive exercise without problems. The claimant said this was untrue. He also reviewed the pain management reports.
In terms of psychological issues, Dr Champion notes the suggestion of Post Traumatic Stress Disorder was first mentioned in Dr Singer’s report of 17 November 2020 and that the claimant’s history suggested her symptoms (of hypervigilance, emotional arousal, disturbed sleep and vivid dreams and nightmares) came on very slowly. The claimant said she might have had earlier symptoms but did not remember. On administering a test (the Depression Anxiety and Stress Scale 21), the claimant’s self-reported scores rated extremely severe depression, anxiety and stress and on the Pain Catastrophising Questionnaire she rated “concerningly high” and she rated at 47/48 in a questionnaire for the perception of injustice. Dr Champion also completed the Post Traumatic Stress Disorder checklist from DSMV suggested her results were consistent with a Post Traumatic Stress Disorder diagnosis and noted what she wrote “Serious MVA. Threatened life, serious injuries, to date unable to live previous life prior to accident. Debilitating is an understatement”. While he considered the claimant may be deliberately scoring herself high, he also considered she may be reporting her true feelings.
The claimant complained to Dr Champion of pain in her back, pins and needles covering the whole of her root and tingly nervy ache in the right shoulder arm and extending to her digits. Dr Champion undertook what appears to be a thorough examination
He considered how, in the absence of pathology “[BFY] could claim such chronic multiregional pain-related disability, impaired function, changes to her mental health and her social situation”. He considered her genuine but vulnerable to low back pain and psychological symptoms. He posits a theory of a biopsychosocial reasons for her current presentation and diagnoses:
(a) a chronic post-traumatic lumbosacral pain syndrome;
(b) a multilevel cervical post-traumatic pain syndrome;
(c) chronic neuropathic pain syndrome in the right upper limb;
(d) a minor thoracic spine pain disorder;
(e) multiple disabilities for activities of daily living;
(f) multiple psychological consequences including Post Traumatic Stress Disorder, ongoing severe stress, anxiety, severe depression, strong perception of injustice and more, and
(g) multiple social consequences.
Dr Champion recommended an ongoing multidisciplinary pain and psychological management program over eight years, a reduction of her work hours for two years and domestic assistance in the home.
He assessed the claimant’s WPI at 19% as follows:
(a) lumbar spine – low back pain with radiculopathy (sciatic nerve root tension signs and reproducible sensory loss localised to the L5 nerve root) – DRE III = 15%, and
(b) cervical spine – she has dysmetria, radicular symptoms and electromyographic evidence for C5/6/7 radiculopathy however right upper limb symptoms are confounded by central nervous system signs – DRE II = 5%.
Dr Murray Hyde Page – orthopaedic surgeon
Dr Hyde Page examined the claimant on behalf of the insurer on 15 April 2019[18].
[18] His report is found on page 119 of the insurer’s final bundle.
He had a consistent history of the accident, the development of symptoms and her pre-accident history. He refers to her “generalised symptoms” in the neck, shoulders, right arm, back and right leg and that she had attended a pain clinic.
Dr Hyde Page notes the referral to the neurologist Dr Skulina and the pre-accident history of “dropping things”. The claimant is reported to have said her symptoms are getting worse not better and that she had neck pain going into her shoulders and down her right arm into the hand. She has ongoing generalised back pain with pain going into her right groin and down the right leg. As a result, she struggles with work and daily activities.
It does not appear (from the bottom of page 3 of his report) that Dr Hyde Page put to the claimant the pre-accident history of dropping things or of back pain but that he has repeated the histories from the documents.
She has medication including Mobic, Lyrica and Ibuprofen has massage and undertakes her own exercises.
He notes:
“She appeared to be moving reasonably comfortably and feely throughout. In fact, when I observed her during the assessment, she did not appear to have any significant pain in her neck, shoulders and back and was moving quite comfortably. However, when it came to the formal examination, she seemed to stiffen up significantly.”
There was some restriction of lumbar spine and cervical spine movements but was not satisfied she was moving as much as she could
He notes that in her words she has “pain everywhere” and he comments:
“Her CT scans of the cervical and lumbar spine are basically normal for a person of her age and she presents with a generalised pain condition that appears to be out of proportion to the severity of the injuries suffered in the motor vehicle accident.”.
He considered she had an “abnormal pain reaction to musculoligamentous or soft tissue injuries to her neck, back and shoulders.” He considered it was reasonable to for her to continue with pain clinic and psychiatrist.
Dr Graham George - psychiatrist
Dr George provided a report dated 21 January 2020[19] to the insurer.
[19] Page 141 of the insurer’s final bundle.
He has a consistent history of the accident and the claimant said that when the airbags deployed she thought there was smoke from a fire as opposed to the airbags. She remembers being aware of pain her right thumb, neck, lower back and right knee but was in a state of shock. She recalled going to hospital and then the doctor by which stage she had “whole body pain”.
She said she had seen doctors and specialists but had no ongoing treatment and suffers pain on a daily basis. She reported not following on with treatment recommended by her pain specialists. She also said she had no longstanding psychological help.
On page 6 of his report, Dr George reports that [BFY] said he had no past anxiety or depression but that “she thought she might have had a high level of trait anxiety”.
Dr George diagnosed a “major depression with anxiety secondary to pain”.
He thought she needed to see a psychiatrist and commence therapeutic dose of antidepressant medication, see an exercise physiologist and increase her level of general activity.
Dr George noted the entry on 26 June 2012 in the GP’s notes of six months of conflict with her employer, low mood, poor sleep, past history of depression for seven years and anger symptoms.
Dr George assessed the claimant’s WPI at 5% for her psychological condition.
Dr Robin Fitzsimons - neurologist
Dr Fitzsimons has provided a lengthy and detailed report to the insurer dated 2 April 2020[20]. The history of the accident is consistent but with more dramatic language “the car behind her ran into her car at full acceleration. Airbags exploded. Her body and neck jolted backwards and forwards”.
[20] Page 272 of the insurer’s final bundle.
The claimant said she thought she lost consciousness “for a few seconds” and that “she had bruises everywhere”, history of being unconscious, “she recalls the severity of the backwards and forwards movement of her neck”. She first felt pain in her thumb and her back then “a sense of pain all over her body”.
Dr Fitzsimons did not take a history of back or neck injury before the accident – except for “occasional back aches, which she [the claimant] did not regard as significant”. The claimant said she had ongoing neck and back pain and symptoms which she told Dr Fitzsimons was due to “radiculopathy”. She had seen a neurologist Dr Skulina because she was getting radiculopathy. She described this as constant and feels “pins and needles and painful tingling” particularly in the wrist and the fingers. She complained of tingling down her back and the front of her right leg to her foot “like a numbness”. She complained of loss of power in the hand and the foot.
Dr Fitzsimons records the claimant saying she had no mental health issues for 15 years before the accident.
Dr Fitzsimons documents [BFY]’s progression and treatment.
Dr Fitzsimons has challenged the claimant on the various histories and records. The claimant did not appear to shy away from earlier back pain but said it was more central and is now more right sided. [BFY] said Dr Hyde Page was biased. She was taken to Dr Tsang’s diagram in the medical certificate which indicated back pain only. The claimant says her doctor wrote this “without my consent” and did not document everything she said.
The claimant told Dr Fitzsimons she had not improved and is worse than she was which has caused her to be angry and seriously depressed.
The claimant said her thumb was OK “It is part of the feeling I feel in my hand”.
Dr Fitsimmons records under conclusions:
(a) the claimant had a nasty accident;
(b) there is no documented head injury;
(c) she presented at Manly Hospital where her major complain was recorded as back pain and there were contradictory comments about whether there were neck symptoms or not. Dr Fitzsimons notes the hospital records suggest neck and back were normal in any event;
(d) during 2017 back complaints were predominant, and you would expect neck symptoms to be present in respect of the “whiplash” injury sustained;
(e) she has “neurological” sorts of symptoms in her right arm and leg but no objective neurological abnormality on examination. “Notably the symptoms affect all her fingers and were not in the distribution of any one nerve root”
and the sensitivity to touch in the right arm and leg do not correspond to impingement on a nerve root;
(f) the radiology does not explain her symptoms;
(g) it would be prudent to undertake an MRI however Dr Fitzsimons would be surprised if it showed anything;
(h) the EMG findings were non-specific and could be a result of lower effort, and
(i) the dropping of things before the accident if due to weakness in her right arm cannot be attributed to the accident.
After considering all the evidence, Dr Fitzsimons considered it likely [BFY] sustained soft tissue injuries to her neck and back (aggravation) which should have settled “long ago”.
Dr Fitzsimons says that the “overwhelming impression is that of depression” and [BFY] is searching for a diagnosis but there is no neurological diagnosis relating to the accident. Dr Fitzsimons considered the claimant needs a treating psychiatrist.
In a separate report[21], Dr Fitzsimons assessed 0% WPI for both neck and back on the basis there were “no differentiators” which could put her in a higher category attracting a greater percentage. In a further report dated 5 August 2020[22] upon production of various MRI and scan reports and documents from the claimant’s pain management team, Dr Fitzsimons did not wish to change any of her earlier opinions and that any continuing complaints of pain are a result of organic consequences and sacroiliac pain is unlikely to be related to the accident.
RE-EXAMINATION FINDINGS
[21] Page 284 of the insurer’s final bundle.
[22] Page 286 in the insurer’s final bundle.
History
[BFY] attended Assessor Rosenthal’s rooms on 21 March 2022 and was examined by Assessors Rosenthal and Moloney.
[BFY] confirmed the history given to Assessor Bodel and others. She said she was struck from behind with great force by a vehicle and her vehicle was pushed into the car in front.
Initially she said she was in shock. The airbags had gone off. She was able to self- extricate and an ambulance took her to Manly Hospital. Her main injuries initially were to her neck, but she developed symptoms in various other areas of her body. She believes that her right shoulder particularly was injured (Panel comment - subsequent records do not report any shoulder injuries). When this was put to her, she stated that doctors often did not record some of her symptoms. She believed that her symptoms from the neck radiated to both shoulders initially then subsequently also impacting on the lower back.
The medical members of the Panel noted that [BFY] appears to have a preexisting back condition. The claimant stated that the symptoms from the back have changed significantly following the accident. She could not recall a CT scan of her lumbar spine which may have occurred in 2012.
She reported that following the subject accident she began getting significant symptoms, particularly down the right arm and hand. After the accident she began dropping things. She believes that the records were incorrectly reported when this began. She was adamant that these symptoms developed following the accident. She believed that generally her general practitioner records were unreliable and recorded incorrect dates. She was frustrated with the fact that she had to keep proving that she had sustained certain injuries despite the records of the various doctors she has seen, which she believes had recorded things incorrectly.
The Panel noted to her that there was no record of shoulder injuries for at least nine months after the accident and it was not recorded in her personal injury claim form. [BFY] claimed that she had symptoms in these areas, but the doctors were not recording those symptoms.
In regards to the back pain and right leg pain, she said this was not present before the subject accident. She said her current pain was not present before the accident and she has entirely different pain now in her back pain going down her right leg. The pictogram that she filled in with the claim form was shown to her and she believed that the x’s were referring to her shoulders. Further questioning of [BFY] indicated that the area in question was more in the upper trapezial region and the lateral side of the neck rather that the shoulder joints themselves.
Her treatment following the accident involved having various scans and investigations. She was seen by Dr Skulina, a neurologist and also treated by Dr Andrew Singer and Dr Lewis Holford, pain specialists. She developed a number of symptoms which were diagnosed as “pain sensitisation" and “chronic pain” conditions without a specific pathological diagnosis. The Panel notes Dr Champion’s biopsychosocial theory has not been peer-reviewed or published.
[BFY] also developed psychological issues and indicated to the Panel that she was suicidal at times and required treatment for major depression. She was put on various medications at various times, some of which had side effects.
In terms of current symptoms, her pain is chronic with neck pain radiating into both shoulders, worse on the right side and worse when she is doing any activity. She says she is getting significant headaches at the top of her head. She pointed to her upper trapezius as the area of pain starting from her neck and moving into her upper shoulders. She reported tingling and numbness in the right hand which is constant and reported a whole lot of symptoms (pins and needles, tingling, numbness) in both the right arm and right leg. At one point she remarked that every cell in her body hurt.
Physical examination
During the physical examination [BFY] became teary at times and she appeared to walk with a slightly antalgic gait although her gait varied.
She estimated her height at 168cm and weight at 68kg.
Examination of her neck revealed normal cervical lordosis. There was no spasm or guarding visible to the Medical Assessors. There was symmetrically restricted lateral flexion by one quarter. Rotation to left and right and flexion / extension movements were symmetrical and considered by both medical members of the Panel to be, in their clinical judgment a normal range of motion.
[BFY] was tender in multiple areas around the cervical spine area in particular the scapular region, the shoulder region and the upper trapezial regions. The right trapezius was more tender than the left. She was tender around both of her acromioclavicular joints. She was tender in the thoracic region in the midline and in the lumbar region in the midline and along the paraspinal muscles.
There were no objective neurological deficits in the upper limbs, although there was a general hypersensitivity in the whole of the right upper arm, hand and digits, but there was no sensory loss following any dermatomal distribution. Upper limb reflexes were equal and power testing did not identify any anatomically localised weakness. Upper arm measurements were 24cm on both sides, 10cm above the olecranon. Forearm measurements were 22cm on both sides, 10cm below the olecranon.
There was a full range of elbow, wrist and finger movements.
[BFY]’s shoulder movements were significantly variable on repeated testing and impacted by pain. The left shoulder moved in a greater range of motion than the right, but both were impacted by pain and movements were repeated three times with considerable variability. The inconsistency was put to her. She said pain affected all her movements. It was noted by the medical members of the Panel that passive movements (when [BFY] was being observed) were greater than active movements when she was being examined and which she again reported was due to pain when she moved.
[BFY] was also asked to comment about the inconsistencies with the range of motion in her shoulders in other medical reports, to which she commented that the pain levels vary at various times impacting on the range of motion.
She was also tender around the scapular region on both sides.
She was wearing a back brace (comment from the Panel – it is not clear who prescribed the back brace) and removed it for a lumbar examination and back movements were all self-restricted with reported pain. Flexion and extension were reduced by a half symmetrically. There was no asymmetry of movement. Lateral flexion appeared to the Panel in their experience to be of normal range as did rotation to both sides. There was no muscle spasm or guarding observed in the lumbar spine. She could get up on her heels and toes and do a half squat. Straight leg raise was 30 degrees on the right and 40 degrees on the left. [BFY] was reluctant to bring her right knee up to her chest, stating that the knee felt uncomfortable but on examination of the right knee she had a full range of movement, normal alignment and no retropatellar crepitus and no instability.
There were no objective neurological deficits in the lower extremities. The right leg generally had a global increase in sensitivity, that is increased sensitivity over the whole of the right lower limb including the foot. The lower limb reflexes were present and equal. Her Lasegue’s signs were negative. Full knee extension could occur once she was in the sitting position. She was tender over the sacroiliac joints, the right worse that the left. Thigh measurements were equal at 40cm on both sides, 10cm above the superior patella pole and calf measurements were 35cm on the right and 34.5cm on the left. The medical members of the Panel’s clinical judgment is that this level of variation is within normal limits.
CONSIDERATION OF THE ISSUES
Is the claimant’s evidence reliable?
The Panel is not of the view that the claimant’s evidence in respect of her pre-accident or post-accident history is reliable.
The claimant denied to the Medical Members of the Panel and Dr Fitzsimons any significant pre-accident back problems and that she has told her doctors all of her symptoms but that they have failed to record them correctly.
The Panel notes that Dr Tsang has recorded not only in her records but in her report to the insurer, the claimant’s reported history of pre-accident lumbar spine pains including the necessity of having a lumbar spine CT scan. The Panel also notes that the Manly Hospital discharge summary records complaints of “acute on chronic” back pain. That must have been a history provided by the claimant and it is not plausible that two medical practitioners (Dr Tsang and the Emergency Department personnel) would make the identical error as alleged by the claimant.
The Panel also notes that the claimant told Dr Bodel that she was taken to Manly Hospital in a neck brace from the scene of the accident. She told the Panel she was taken to the Hospital by ambulance. The Panel notes that the claimant’s answer to question 19 in her claim form “Did an ambulance come to the accident scene?” was “No”. There is no record, particularly in the hospital notes of the claimant having been brought in by ambulance. The consistent histories are that the police came, other histories suggest the claimant’s parents either came to collect her or she went home and found her own way to hospital.
For the above reasons the Panel considers her evidence unreliable and prefers to rely on the documentary evidence or to look for confirmation of the claimant’s history in the medical documentation.
Did the claimant have medical issues before this accident?
The Panel accepts on the basis of the evidence of Dr Tsang and Manly Hospital that the claimant did have previous back problems which were ‘chronic’ before the accident and that she also had anxiety symptoms and stress with work. The Panel accepts that these medical conditions were not significant in the immediate pre-accident period (due to the limited number of attendances).
The Panel does not accept the claimant’s evidence that [BFY] was not ‘dropping things’ before the accident and that this symptom began only after the car accident. The Panel notes that Dr Tsang had taken a history from the claimant on 27 March 2017 of her dropping things over the last few months, that she was stressed at work but that she continued to drop things after her holidays and having time off. The note of 25 February 2017 in the Vale records relates to a holiday in Singapore which lends credence to the history taken by Dr Tsang. The later note on 16 August 2017 (after the claimant had the MRI of her brain) has a slightly different history of the symptoms remaining with a year of dropping things and that the symptoms occurred on days off and on holidays. There is no mention of the car accident in this consultation.
What injuries did the claimant sustain in the accident?
While the claimant has told Dr George and Assessor Bodel about a right knee injury, and the claimant complained to Dr Singer about right hip and right knee pain, there is no contemporaneous record of these injuries and no record in the GP notes. The Panel considers that any hip and knee pain is part of the claimant’s chronic pain condition.
The medical assessors determined that there was adequate evidence to establish causation of soft tissue injury to the cervical spine (neck) and soft tissue injury to the lumbar spine (lower back). While the hospital discharge summary is, to some extent unclear, the Panel notes the claimant’s chest, lower back, right thumb and cervical spine (neck) were all X-rayed at approximately 10.00pm on the night of the accident[23].
[23] All four x-ray reports are included in the insurer’s final bundle at pages 98 – 101.
There is no record of any frank or specific injury to the actual shoulders or shoulder joints at the time of the accident. There is no mention of shoulder problems until nine months after the motor accident. That note (by Dr Jesudason and not Dr Tsang) has a history of back and right shoulder pain but that movements were “OK” and sensation “normal”.
The Panel is of the view that the claimant did not injure her shoulders and that any restriction of movement or complaints of pains in the shoulders relate to any injury of the neck or the progression of the claimant’s chronic pain condition.
The Panel agrees with the evidence of Dr Robin Fitzsimons and Dr David Champion that [BFY] has developed chronic pain symptoms. There is nothing in the radiology to support any neurological or skeletal cause. The Panel therefore concludes the claimant has sustained soft tissue injuries to her neck and back.
ASSESSMENT OF WHOLE PERSON IMPAIRMENT
Cervical spine
| DRE | Assessment criteria in the Guides / Guidelines | Application to [BFY] |
| I | Does the claimant have pain or symptoms in her neck? | Yes - the claimant has been consistent in her complaints of neck pain in reports of practitioners since the accident. |
| II | Does the claimant have muscle guarding? | No - when both members of the Panel examined the claimant, they found no evidence of muscle spasm or guarding. |
| Does the claimant have dysmetria (nonuniform range of motion)? | No -when both members of the Panel examined the claimant, they found no evidence of dysmetria. Any restriction of movement in the neck was uniform as recorded above. | |
| Does the claimant have non-verifiable radicular complaints of: 1. Loss of sensation 2. Loss of power 3. Loss of reflexes which correspond to a particular nerve root? | No - when both members of the Panel examined the claimant, they detected no loss of power or absence of reflexes. While the claimant did have complaints of loss of or altered sensation in her right arm and hand, this did not follow a dermatomal distribution of the nerve roots which power the right upper limb. | |
| III | Does the claimant have two or more of the following signs of radiculopathy? 1. Loss or asymmetry of reflexes 2. Position sciatic nerve root tension signs 3. Muscle atrophy and /or decreased limb circumference 4. Muscle weakness anatomically localised to appropriate nerve root distribution | No - in the clinical judgment of the medical members of the Panel after a careful reexamination of [BFY], the Panel found no neurological abnormality and no evidence of radiculopathy. |
| 5. Reproducible sensory loss anatomically localised to an appropriate nerve root distribution |
In reference to the Guidelines, the cervical spine is assessed under Cervicothoracic Spine, Table 73, p.110 of the AMA4 Guides and in accordance with the summary and definitions contained within the Guidelines. [BFY] is assessed as category DRE I which equates to a 0% whole person impairment.
Lumbar spine
| DRE | Assessment criteria in the Guides / Guidelines | Application to [BFY] |
| I | Does the claimant have pain or symptoms in her back? | Yes - the claimant has been consistent in her complaints of lower back pain since the accident. |
| II | Does the claimant have muscle guarding? | When both medical members of the Panel examined the claimant, they found no evidence of muscle spasm or guarding in the lower back. |
| Does the claimant have dysmetria (nonuniform range of motion)? | When both medical members of the Panel examined the claimant, they found no evidence of dysmetria. Any restriction of movement in the lower back was, in the opinion of the medical members of the Panel, uniform. | |
| Does the claimant have non-verifiable radicular complaints of: 1. Loss of sensation 2. Loss of power 3. Loss of reflexes? which correspond to a particular nerve root? | When both members of the Panel examined the claimant, they detected no loss of power or reflexes. While the claimant did have complaints of loss of or altered sensation in her right leg and foot, this did not follow a dermatomal distribution of the nerve roots which power the right lower limb. | |
| III | Does the claimant have two or more of the following signs of radiculopathy? 1. Loss or asymmetry of reflexes | In the clinical judgment of the medical members of the Panel after a careful re-examination of [BFY], the Panel found no |
| 2. Position sciatic nerve root tensions gins 3. Muscle atrophy and /or decreased limb circumference 4. Muscle weakness anatomically localised to appropriate nerve root distribution 5. Reproducible sensory loss anatomically localised to an appropriate nerve root distribution | evidence of neurological abnormality and no radiculopathy. |
In reference to the Guidelines, the lower back is assessed under Lumbosacral Spine, Table 72, p.110 and in accordance with the summary and definitions contained within the Guidelines. [BFY] is assessed as category DRE I which equates to 0% whole person impairment.
Shoulders
The Panel did not find any evidence of frank injury to the joints of either shoulder. The symptoms that [BFY] described, after questioning from the medical members of the Panel appear to correspond to radiating symptoms from her neck to her shoulder regions. 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[24] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[24] (2011) NSWSC 351.
When measuring range of motion in [BFY]’s shoulders, the Panel found that
[BFY]’s movements were so inconsistent that the Panel considered that range of motion could not be used as a valid method of assessing impairment. The Panel notes the contents of clauses 1.41 and 1.50.5 of the Guidelines and the discretion available to it to consider whether an impairment is present.
There has been no investigation of the claimant’s shoulders and no objective evidence of any pathology in the shoulders. There is no imaging of the cervical spine which would explain the restriction of motion in the shoulders. If [BFY] does have any accident-related restriction of motion in the shoulders, it is a restriction caused by her chronic pain and, as clause 1.38 of the Guidelines provides, there can be no assessment of pain as an injury and chapter 15 of the AMA 4 Guides cannot be used.
In the exercise of the Panel’s discretion there is no objective evidence to allocate any impairment value in respect of any restriction of motion of the shoulders.
CONCLUSION
The Panel assesses the claimant’s WPI as a result of the injuries sustained in the accident as follows:
(a) cervical spine / neck – 0%, and
(b) lumbar spine / lower back – 0%.
The Panel notes that an assessment of 0% WPI does not mean [BFY] did not sustain an injury in the accident or that she has no symptoms arising from it. The Panel’s finding means that, at the time of this assessment, the injury and any symptoms arising from it do not give rise to an impairment greater than 0% within the scheme of assessment prescribed in the AMA4 Guides and the Guidelines.
0
0
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