AAI Limited t/as GIO v Cupac
[2024] NSWPICMP 670
•20 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Cupac [2024] NSWPICMP 670 |
CLAIMANT: | Milan Cupac |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 20 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Permanent impairment dispute; claimant sustained injuries to cervical, thoracic and lumbar spine and soft tissue injury to the right shoulder including a labral tear; whether injuries caused by the motor accident; shoulder movement restricted by thoracic pain; appropriate method of assessment of right shoulder soft tissue injury with labral tear; impairment to right shoulder assessed by reference to an analogous condition being crepitation in the glenohumeral joint of the right shoulder; appropriate analogous condition as it results in discomfort and restriction of shoulder movement on elevation and rotation; Held – injuries caused by motor accident; permanent impairment assessed at 9%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical assessment – degree of whole person impairment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% 1. The Review Panel revokes the certificate of Medical Assessor Bodel dated 6 October 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10% (9%): (a) soft tissue injury to the cervical spine – 0%; (b) soft tissue injury to the thoracic spine – 5%; (c) soft tissue injury to the lumbar spine – 0%, and (d) soft tissue injury to the right shoulder, incuding labral tear – 4%. |
STATEMENT OF REASONS
INTRODUCTION
Milan Cupac (the claimant) alleges that he sustained injuries in a motor vehicle accident that occurred at the intersection of Clyde Street and Wellington Road in South Granville. As he was turning right onto Wellington Road, a vehicle travelled straight through the intersection into colliding with his vehicle, he says forcefully.
There is a medical dispute between the claimant and the insurer as to the extent of the permanent impairment occasioned by the injuries cause by the motor accident.
A medical dispute was referred to the Personal Injury Commission (the Commission) for assessment injuries to the cervical spine (soft tissue, injury to discs), lumbar spine (injuries to discs), thoracic spine (lesions, soft tissue, injuries to discs), right shoulder (extensive labral tear involving anterosuperior posterosuperior and posteroinferior quadrant, large lobulated paralabral cyst, subacromial/ subdeltoid bursitis, soft tissue injury), and left shoulder (soft tissue injury) caused by the motor accident and have caused him whole person impairment (WPI) greater than 10%.
Medical Assessor James Bodel conducted a medical assessment and determined in a certificate dated 6 October 2023 that the injury caused by the motor accident gave rise to permanent impairment of 13% and is greater than 10%.
The insurer sought a review of the medical assessment pursuant to s 7.26 of the Motor Accidents Injuries Act 2017 (the MAI Act). The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought. The President’s delegate referred the medical assessment to the Review Panel (the Panel) on the basis that he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
Section 10.2 of the MAI Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 10.2 of the MAI Act for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive. The review assessment is conducted pursuant to AMA 4 and Guidelines.
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the claimant suffered soft tissue injury to cervical, thoracic and lumbar spine. He diagnosed the claimant’s injuries as rotator cuff pathology in the region of the right shoulder with bursitis, tendinitis and a labral tear. The Medical Assessor was satisfied that the injuries referred to the Commission were caused related to the accident and assessed those injuries as occasioning a degree of permanent impairment of 13%.
EVIDENCE BEFORE THE PANEL
The Panel issued a direction to the parties requesting a provision of a joint bundle which was provided as directed.
In his Personal Injury Claim Form dated 1 December 2020, the claimant describes the injuries received as the result of the accident as an injury to the neck, mid back, upper back and lower back with pain radiating in his arms, hands and legs right, injury to his right shoulder with pain and reduced range of movement and weakness.
Statement from the claimant
In a statement dated 11 November 2023, the claimant described the accident as forceful. He says that the airbags in the vehicle at fault deployed. The force caused the front left side of his vehicle to turn in a clockwise direction and his body to twist in his seat. He had no chance to avoid the collision or prepare for it by bracing his body. He says that despite wearing a seatbelt he was forcefully flung sideways the forces of the collision. He remembers feeling his head being flung around.
He does not have a clear recollection of how he felt immediately after the accident because he was in shock. Ambulance and fire brigade attended. At the time the claimant did not think he was injured or severely injured enough to attend hospital. He organised a tow truck to collect his vehicle and took a taxi to his employer’s head office where he collected a replacement vehicle and drove himself home and back to work the following day. After the accident he said he had an intense headache radiating from his neck and felt intense pain and discomfort in his upper, middle and lower back as well as in his neck and shoulders. This was particularly so when he started to move the tools from one vehicle to another. He reported his pain to his employer and went home the next day.
He attended upon his general practitioner, Dr Oreb in Newtown, who told him he should rest over the weekend and advised him to take Panadol on Nurofen for the pain. He was advised not to return to work until having a medical assessment. He was certified unfit for work for one week. He was referred for an X-ray, and MRI and physiotherapy.
He attended physiotherapy, which he found aggravating. He decided to treat himself with stretching and strengthening exercise.
He complains of ongoing headaches, often severe in nature. He had pain and stiffness and discomfort his lower back and neck and right shoulder, particularly the mid back. He says he currently experiences ongoing pain, stiffness and discomfort in the neck which radiates down his upper back into the larger muscles. In his right shoulder he experiences a pain which he describes as “nerve pain”.
Clinical and treatment evidence
In an Allied Health Recovery Request dated 30 October 2020, the claimant’s physiotherapist, Andrew Phan, diagnosed the claimant as having a whiplash associated disorder in the cervical spine, subacromial pain syndrome, posterior cuff tendinopathy in the right shoulder and mechanical trauma and joint sprain in the thoracic spine. He requested eight physiotherapy sessions to perform whiplash rehabilitation and increase spinal/thoracic mobility and maintain capacity at work.
In a letter dated 25 November 2020, the claimant’s general practitioner diagnosed his injuries as post traumatic mechanical derangement of the cervical and thoraco lumbar spine, and right shoulder. The doctor stated, without explanation, that the claimant’s work was not a contributing factor his pathology. He stated that there were no pre-existing problems with the claimant’s neck back right shoulder. He prescribed an MRI scan to the claimant’s neck and back and an ultrasound of his right shoulder.
In an MRI of the cervical, thoracic and lumber spine on 2 December 2020, the radiologist reported that there was T2 hyperintense lesions within T1 and T5 vertebrae which were likely to represent fat poor haemangiomas. The differential diagnosis included metastasis or myeloma, but this was considered less likely. A bone scan and myeloma screen were considered helpful to exclude this, otherwise the study was considered to be normal.
In an ultrasound report dated 21 December 2020 of the claimant’s right shoulder and upper arm, it was reported that the claimant was suffering from subacromial/subdeltoid bursitis. There was a suggestion of old low-grade partial thickness tear of the insertion of the middle segment of the supraspinatus tendon fibres. There was mild acromioclavicular (AC) joint synovitis.
In a report of an MRI of the claimant’s right shoulder on 26 April 2021, the radiologist commented that there was an extensive labral tear involving the anterosuperior, posterosuperior and posteroinferior quadrants. There was a large lobulated paralabral cyst arising from posteroinferior quadrant and dissecting anteriorly beneath the inferior glenohumeral ligament where it measured approximately 8 x 18 x 18mm. There was mild subacromial sub deltoid bursitis noted.
In a letter dated 19 April 2021, Dr Chris Smithers, orthopaedic surgeon, writing to the claimant’s general practitioner, reported upon his examination of the claimant which demonstrated no focal tenderness over the greater tuberosity, AC joint or long head of the biceps groove. There was mild tenderness over the posterior joint line. Forward elevation was to 170° with pain from 160°. External rotation was 70°, internal rotation to L1 with end range of pain on the right. Internal rotation on the left was to T1. Cuff power was preserved. O'Brien's test was positive, and the claimant had pain reproduced with abduction and external rotation. Load and shift test was negative. The ultrasound of the shoulder had demonstrated subacromial bursitis and the suggestion of an old partial grade thickness insert tear of the supraspinatus. The claimant’s symptoms were considered most consistent with a labral tear. He made arrangements for a right shoulder MRI scan. He opined that the claimant may be a candidate for shoulder surgery.
In a letter dated 7 May 2021, Dr Smithers, upon whom the claimant had attended again following his right shoulder MRI scan, the doctor commented that the MRI had demonstrated relatively extensive labral tearing both anteriorly and posteriorly. There was also a paralabral cyst formation particularly inferior but also posterior, extending to the suprascapular notch. The rotator cuff was intact. The doctor opined that he considered the combination of labral tearing and the cysts to be responsible for the claimant’s symptoms. He recommended the claimant undertake a comprehensive physiotherapy program for three months to focus on rotator cuff strengthening and scapula stability work.
In a report dated 25 May 2022, Dr Jeffrey Brennan, neurosurgeon, reporting to the claimant’s general practitioner, recorded the claimant’s spinal pain as maximum in the interscapular region, with the claimant indicating the portion where his arms meet his spine as being a source of pain. The pain was described as not tending to spread down the claimant’s arms and if the claimant were to rest, the pain settles down. He remarked that the MRI scan of his spine was essentially normal and did not show any cause for spinal pain. It did show some small haemangioma, which the bone scan confirmed were lesions in the bone and there was very little likelihood of an uptake of scintographic activity in the spine at all. The bone scan did not pick up the AC joint disruption. The doctor remarked that because the claimant had persistent spinal pain in the context of an essentially normal MRI scan, it was impossible to identify exactly where the pain was coming from. He remarked that because the MRI scan was normal there was no role for surgery and the only treatments were non-operative. He opined that the fact that the symptoms did not settle down when the claimant rested made it sound more kinaesthetic and functional in nature. He opined that the claimant may benefit from seeing a rehabilitation physician with interest and expertise in low back pain.
Medico-legal evidence
In a report date 22 June 2021, Dr Stephen Rimmer, orthopaedic surgeon, reported on an independent medical examination of the claimant. Following an examination of the claimant, he diagnosed the claimant as having suffered a musculoskeletal strain of the cervical and thoracolumbar spine, a soft tissue injury to his right shoulder and abnormal illness behaviour. He noted gross inconsistencies in his history and presentation. He opined that the injuries sustained on 24 September 2020 ought to have been fully resolved had the claimant complied with treatment. He noted that the claimant had only attended two physiotherapy sessions in nine months, which the claimant attributed to the fact that he was disorganised. The doctor opined that the claimant needed to attend physiotherapy for six to eight weeks and be reassessed.
In a report dated 17 October 2022, Dr Evan Dryson, occupational physician, reported on an independent medical examination of the claimant. He diagnosed the claimant has having suffered from a soft tissue injury to the vehicle, thoracic and lumbar spine and a labral tear to the right shoulder. He found on examination and asymmetric loss of movement range of movement in the cervical and lumbar spines. There was symmetrical loss of range of movement in the thoracic. There was a reduced range of movement in the right shoulder and reduced strength in the right arm with altered sensation in both thumbs. Noting that the claimant had not responded to appropriate conservative management, he opined that is likely that the claimant would need to proceed to surgery of the right shoulder identified as a debridement and repair of tears plus or minus cyst decompression in the right shoulder. He opined that there was little further to be offered in respect of spinal pain noting that the MRI scan showed no abnormality. He opined that the claimant would need to continue an exercise program in respect of his spinal pain even if the pain were likely to continue in the future. He assessed the claimant as having suffered 5% WPI for the cervical spine, 0% WPI for the thoracic spine, 5% WPI for the lumbar spine and 14% WPI for the right shoulder.
In a report date 19 December 2022, Dr Andrew Keller, occupational physician, following an independent medical examination of the claimant reported that there was an inconsistent restriction of motion in the cervical spine without radiculopathy and unexplained restriction of motion in both shoulders that appeared inconsistent. The doctor reported that the claimant was unable to demonstrate movements in the lumbar spine and had to terminate the full examination of the claimant’s spine and legs due to back pain. The doctor opined that it was possible that the claimant had suffered soft tissue injuries as a result of the accident. It was not clear to the doctor that the right shoulder labral tear related to the accident. He had high levels of reported disability and pain which were not consistent with his ability to work full-time in his pre-injury role in the two years since the that there was a possible soft tissue injury to the thoracic spine.
SUBMISSIONS
In submissions dated 23 January 2024, the insurer referred to an attached bundle of records from the claimant’s general practitioner for the period 18 September 2021 to 12 December 2023 and noted that the records in the joint bundle were incomplete. The claimant attended upon his general practitioner two weeks after the subject accident on 28 September 2020 at which time his complaints were limited to his spine but upon examination were considered “unremarkable”. An X-ray of the thoracic spine was performed on 29 September 2020 and demonstrated narrowing at the C 5/6 disc with degenerative changes. The insurer relied upon they Allied Health Rehabilitation Request of 30 October 2020 confirmed that the claimant no longer complained of lower back pain. It referred to the examination of Dr Keller who considered the level of extreme disability and movement consistent with the capacity to work full-time in a physically demanding position. It also noted that the presentation to Dr Keller was inconsistent with the presentation to Dr Rimmer. It disputes the injury to the left shoulder, on the basis that objective evidence does not support it.
The claimant submits that he suffered from severe right shoulder injury caused by the accident which is confirmed in the MRI findings. The notes that the insured does not suggest in its submissions that the right shoulder injury was not caused by the accident. He relies on a liability notice dated 28 January 2022 issued by the insurer wherein it agreed that the claimant’s shoulder injury was a non-threshold injury due to the labral tear suffered in the motor accident. The severity of the injury was confirmed by Dr Smithers, who recommended surgical debridement and repair of tears and decompression. He relies upon the Medical Assessor’s findings and conclusion, as correct.
RE-EXAMINATION OF THE CLAIMANT
The Panel determined to re-examine the claimant. The claimant attended accompanied by a friend but was examined alone. He was assessed by Medical Assessor Oates on behalf of the Panel at the Commission’s Medical Suites on 31 January 2024. The following is the report of the re-examination undertaken.
“HISTORY
Pre-accident medical history and relevant personal details
Mr Cupac said he had fractured the right 5th metacarpal some time after he came to Australia from his native Croatia in 1998. He could not recall when. He had surgery but says there was no metal fixation. He made a good recovery. He said he was a student at the time.
He then worked as an air-conditioning and refrigeration mechanic for Superior Air-conditioning. Since the accident, he has continued to work for them but can’t do the lifting and installation of air-conditioning ducting because of right shoulder and upper thoracic pain, and to some extent low back pain, since the accident. He now does smaller jobs such as connecting cables and other electronic tasks, and also supervises workers. He usually works his normal hours.
He lives alone in a house on his parents’ five-acre property. He is single and has no children. His parents do the yard work. He looks after his own dwelling internally.
History of the motor accident
Mr Cupac confirmed the date of accident was 24 September 2020, a Thursday, as he recalls. He was the driver of a 2WD Ford Ranger utility with no passengers. He was making a right turn with a green arrow in his favour, when an oncoming motor vehicle travelling in the opposite direction, which was a right turn only lane, instead went straight ahead and struck the front left corner of Mr Cupac’s utility.
He estimates his speed at about 20kph but the other car was going faster, and he only saw this car a split-second before the impact. His car spun with the impact. He recalls his right hand was on the steering wheel at the time of impact. He can’t remember any other details of the accident.
History of symptoms and treatment following the motor accident
The ambulance and fire brigade attended but he does not recall police being in attendance. The ambulance officers checked him and cleared him to leave the scene. He got a lift with the tow truck driver, as his car had to be towed and was subsequently repaired for an undisclosed amount.
He contacted his GP, Dr Oreb, Newtown, but could not get an appointment until the following week.
He says on the day of the accident, he had severe headache and also some upper to mid thoracic and neck pain, and was feeling stressed as there were young children and an elderly woman passenger in the car which hit him.
By the time he saw Dr Oreb, he was complaining of middle back pain, which was his main problem, and he had pain in the neck radiating to both trapezii and pain at the right shoulder affecting the upper arm and posterior aspect of the shoulder joint. He had x-rays which showed no fracture. He had a week or two off work, he can’t remember how long, but says the employer was calling him up and asking him to return to work.
He then resumed his work and remained there after he returned, but would take an occasional day or couple of days off to rest when his thoracic pain was more severe.
He was taking medications consisting of anti-inflammatories and analgesics. He had physiotherapy to the thoracic back initially and later with another physiotherapist to the neck and back and ‘everything’ and he was given home exercises. He attended physiotherapy for a couple of months.
He saw Dr Smithers, upper limb orthopaedic surgeon, who reviewed an ultrasound scan of the right shoulder and ordered an MRI scan which showed a labral tear. Dr Smithers gave him treatment option of cortisone injection or surgery or just to let the shoulder have more time to see if it would settle by itself. Mr Cupac chose the latter ‘watch and wait’ approach.
He also saw Dr J Brennan, neurosurgeon, about the cervicothoracic spine pain and was told that the MRI scan of the spines (cervical, thoracic and lumbar) showed no lesion which was amenable to surgery. It was suggested he go back to his own doctor for further management.
Thereafter, he self-treated with medications and home exercises.
He said he was not diagnosed with a specific left shoulder injury to his knowledge, but said if he moves the left arm, he gets upper to middle thoracic back pain.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
His main problem is feeling ‘zaps’ of sharp pain on either side of the mid-thoracic spine area. He also feels tingling and numbness in both legs and feet if he sits too long. His thoracic spine is most comfortable if he is sitting and leaning forward.
If he moves his head, he feels pain from the base of the neck, radiating to the right upper trapezius and to the upper arm and upper back on both sides of the thoracic spine. There is no radiating pain to the left shoulder or arm.
From time to time, he will get a dull ache in the lower back if he gets up from lying down or the seated position. He was unable to say whether this pain radiates out of the back. He sometimes gets a different sensation of tingling in the right arm to the hand, affecting all fingers, from time to time.
He feels stressed and can’t sleep. He wakes during the night from pain in thoracic spine and right shoulder if he has turned onto his right side, and when he moves his position, he can’t go back to sleep again.
Current and proposed treatment
He has meloxicam (anti-inflammatory) about five tablets per week. He has Panadeine Forte but tries to avoid these by taking Panadol instead. He takes Panadol most days. He had difficulty estimating how many Panadeine Forte he has in an average week, but guessed about five.
He sees Dr Oreb, his GP, monthly.
EXAMINATION
General presentation
He appeared uncomfortable when sitting and was leaning forward in the chair, saying this was the best position for his constant thoracic spine pain.
He was of tall, slim build with weight 90kg and height 186cm. He had a long beard and long hair tied at the back.
He showed prominent pain behaviour and would duck away from the lightest palpation of the paraspinal muscles. When putting his shirt on after the examination, he slid one arm at a time in the shirt and did not raise the arm at the shoulders. Throughout the examination, he was grunting with sharp expiration.
He stood erect and walked without a limp. There was a normal cervical lordosis, lumbar lordosis and thoracic contour.
Cervical spine (cervicothoracic)
There was some right upper trapezial tenderness. There was no central spinal tenderness. There was no guarding or muscle spasm. There was voluntary stiffening of the muscles on areas being palpated.
Range of movement in all directions was extremely limited and said to be because of zaps of sharp pain in the upper thoracic spine. Flexion and extension were one-quarter of normal range. Lateral flexion was one-third of normal range bilaterally, limited by complaints of neck and thoracic pain, and rotation one-third of normal range bilaterally limited by thoracic pain.
Power in the upper limbs was normal. Sensation was normal. Reflexes were symmetrical but he jumped and jerked his arms when reflexes were tested, due to complaints of zaps of pain in the thoracic spine.
Girth of right upper arm equals left equals 32cm. Girth of right forearm 29cm, left 28.5cm – consistent with stated right-hand dominance.
There was no dysmetria. There were no non-verifiable radicular complaints following a specific nerve root distribution.
Thoracic spine (thoracolumbar)
There was no muscle guarding or spasm. He voluntarily contracted muscles when they were being palpated and withdrew from the examiner’s hand. There was central tenderness in the T4 to T5 area. Rotation was one-third to the right and one-quarter to the left, with complaint of zaps of sharp thoracic pain. Sensation over the trunk was normal.
Lumbar spine (lumbosacral)
There was no guarding or muscle spasm. There was no tenderness to palpation. Flexion and extension were one-quarter of normal, said to be limited by zaps of sharp pain in the thoracic spine. Lateral flexion was one-half normal bilaterally, also limited by thoracic pain.
Power and sensation were normal. The reflexes were symmetrical, but he complained of zaps of thoracic pain on testing lower limb reflexes and withdrew his legs from the tendon hammer. Plantar responses were both flexor.
A sitting slump test was negative for sciatic nerve stretch test bilaterally. There were complaints of thoracic pain on left straight leg raising when sitting on the edge of the couch. He said he was unable to lie flat for supine straight leg raise test.
Thigh girth; right equals left equals 44.5cm measured at 10cm above the superior patellar pole. Leg girth; right equals left equals 40cm measured at maximal girth.
Upper extremities
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°, 80°, 40°
limited by sharp thoracic pain
100°, 105°, 90°
with complaints of thoracic pain
Extension
50°, 40°, 30°
limited by thoracic pain
70°
Adduction
40°, 10°, 20°
with complaint of thoracic pain
50°
Abduction
70°, 50°, 60°
with complaint of thoracic pain
100°, 90°, 80°
with complaint of thoracic pain
Internal Rotation
70°, 50°, 80°
with complaint of thoracic pain at the end of range
90°
with elbow supported by examiner because the claimant stated he could not hold his arm in position actively
External Rotation
50°, 0°, 20°
limited by complaint of right shoulder and upper to mid thoracic pain
90°
Comments on consistency
At the commencement of examination, I had asked the claimant to demonstrate his best range of active motion so that an accurate assessment of permanent impairment could be done and he agreed to this.
However, during the examination, particularly of the spine and the right shoulder, range of movement was variable and quite limited, and was said to be due to complaints of upper to mid thoracic sharp pain, which also affected his ability to relax for reflex testing.
I asked the claimant why his range of movement was so much reduced compared with that recorded especially for the right shoulder by Assessor Bodel and he said he did not know. He then suggested that maybe he didn’t have as much pain that day in the thoracic spine.
SUMMARY OF RELEVANT RADIOLOGICAL AND MEDICAL IMAGING AND OTHER INVESTIGATIONS
He brought the following imaging films to this examination:
29/9/2020 – X-ray of cervical, thoracic and lumbar spines
21/12/2020 – Ultrasound right shoulder – a packet was provided but there was nothing in the packet
2/12/2020 – MRI cervical, thoracic and lumbar spine was on a compact disc which could not be opened
26/4/2021 – MRI scan of spine on compact disc which could not be opened
1/4/2022 – Bone scan had both images and report
The imaging I reviewed was consistent with the reports in the file of evidence.”
PANEL’S CONCLUSIONS
Diagnosis, causation and reasons
The Panel notes that there is no dispute that the claimant suffered a soft tissue injury to the spine; the dispute is only to the extent to which these injuries has occasioned permanent impairment. Likewise, there is no dispute that the claimant suffered an injury to the right shoulder; it is only the extent to which the right shoulder injury is productive of WPI.
The Panel concludes that the claimant suffered a soft tissue injury to cervical, thoracic and lumbar spine, and labral tear of right shoulder caused by the motor accident. This diagnosis is based on the imaging performed. The Panel is satisfied that the accident was a cause of the above injuries because they were listed on the Personal Injury Claim Form and in the initial report from Dr Oreb on 25 November 2020. This diagnosis is supported by the initial assessment of the claimant by his physiotherapist on 30 October 2020.
There is no evidence of injury to the left shoulder having occurred and the claimant confirmed this at the re-examination. He did mention that symptoms from the thoracic spine could spread to the left shoulder girdle area at times. He did not confirm any radiating symptoms to the left upper extremity.
PERMANENT IMPAIRMENT ASSESSMENT
Cervical spine – soft tissue injury
There was no dysmetria, no guarding, and no non-verifiable radicular complaints, that is complaints following a specific spinal nerve root distribution, and no radiculopathy present on clinical examination. There were symptoms present. Symptoms are a differentiator for diagnosis-related estimate (DRE) Cervicothoracic Category I giving 0% WPI.
Thoracic spine – soft tissue injury
There was focal tenderness but no guarding and no muscle spasm. There were no non-verifiable radicular complaints. There was no radiculopathy in the thoracic spine. There were florid symptoms in the thoracic spine, and there was some asymmetry of movement with rotation to the right of greater range than rotation to the left, albeit by a small margin. This dysmetria is a differentiator for DRE Thoracolumbar Category II giving 5% WPI.
Lumbar spine – soft tissue injury
There was no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy. There were symptoms present. Symptoms are a differentiator for DRE Lumbosacral Category I giving 0% WPI.
Right shoulder – soft tissue injury including labral tear
The active range of movement demonstrated at the clinical examination was varied and reported to be limited by “zaps” of sharp upper to mid-thoracic pain, rather than referred symptoms from the cervical spine. Hence, the Nguyen principle (Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351) does not apply.
It is not physiological for shoulder movements to be restricted by thoracic pain.
Because the right shoulder movement was significantly affected by complaints of pain, it is not appropriate to use active range of movement as the basis for assessing permanent impairment.
Impairment was assessed by reference to an analogous condition, which is joint crepitation in the glenohumeral joint of the right shoulder. This is considered an appropriate analogous condition to use, because it results in discomfort and restriction of shoulder movement on elevation and rotation. Mild crepitation gives 10% impairment of the joint. The glenohumeral joint represents 60% upper extremity impairment. Ten percent of 60% gives 6% upper extremity impairment, which is equivalent to 4% WPI.
Combining 5% and 4% gives 9% WPI.
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