AAI Limited t/as GIO v Radosevic
[2024] NSWPICMP 314
•17 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Radosevic [2024] NSWPICMP 314 |
| CLAIMANT: | Robert Radosevic |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 17 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s review of Medical Assessor (MA) Bodel’s assessment of 18% whole person impairment (WPI); claimant injured in accident on 4 October 2020, alleged injuries to chest, spine (cervical, thoracic and lumbar), both shoulders and right knee; MA found impairments in both left and right shoulders, lumbar spine and right knee and found all other injuries resolved with no impairment; Held – chest injury and thoracic spine resolved with no symptoms and no impairment; lumbar spine and cervical spine injured in accident (soft tissue) with symptoms of pain but no radicular symptoms or signs of radiculopathy; DRE for each 0%; right knee injury produced minor symptoms but no loss of motion, no indication of arthritis and no ligament laxity therefore no impairment; Panel determined shoulder range of motion could not be used due to inconsistency and variation; MA’s satisfied there was an impairment which was analogous to crepitation of the acromioclavicular joint and assessed 3% for the right and 2% for the left shoulder. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Bodel dated 29 September 2023. 2. Certifies that the degree of Robert Radosevic’s permanent impairment resulting from the injuries caused by the motor accident on 4 October 2020 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Robert Radosevic was involved in a motor accident on 4 October 2020. The claimant was a passenger in a vehicle driven by a friend when a collision occurred with another vehicle the driver of which failed to stop at a give-way sign.
Mr Radosevic says he injured his chest, spine (cervical, thoracic and lumbar), both shoulders and right knee in the accident and made a claim for statutory benefits and damages against GIO, the third-party insurer of the vehicle that hit the vehicle he was in at the time of the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Radosevic referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 29 September 2023, Medical Assessor Bodel determined that Mr Radosevic had a WPI of 18% which is of course greater than 10%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 6 December 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on the same day the delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Mr Radosevic’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law, as modified by the MAI Act, an injured person can make a claim for damages for both economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which is largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
Dispute Resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Bodel’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26.
ASSESSMENT UNDER REVIEW
Medical Assessor Bodel examined the claimant on 19 September 2023 and issued his certificate and reasons 10 days later.
At [2], Medical Assessor Bodel lists the injuries he was asked to assess:
(a) fracture to the right side of the chest wall;
(b) post-traumatic symptoms in the left shoulder including bursitis and a labral tear;
(c) post-traumatic symptoms in the right shoulder including impingement, tendinopathy, bursitis and a labral tear;
(d) undisplaced peripheral tear in the right knee, and
(e) musculoligamentous sprains and strains in the thoracic and lumbar spine.
Medical Assessor Bodel at [8] to [11] has the following history:
(a) the claimant migrated to Australia in 2003 and worked as a formwork carpenter up until the accident but has not worked since;
(b) apart from hay fever he was well before the accident;
(c) he was a passenger in a motor vehicle involved in an intersection collision;
(d) the impact was severe and the front part of the car the claimant was “destroyed”;
(e) airbags deployed and the claimant put his right arm up and was hit on the forearm and centre of the chest by the airbag. His seatbelt grabbed and he felt immediate right sided rib pain;
(f) police and ambulance attended, and Mr Radosevic was taken to Campbelltown Hospital where he remained overnight;
(g) while shocked, he was not knocked out and developed shortness of breath, severe pain in the neck and shoulders on both sides, the middle back, lower back and front of both knees the right more than left, and
(h) he saw his general practitioner (GP), Dr Tomka a few days later and had investigations which confirmed degenerative changes in his cervical spine, lumbar spine and right shoulder rotator cuff pathology.
In terms of current symptoms at [11] and [13] Medical Assessor Bodel documents
(a) the left knee pain has resolved but his right knee is troublesome with anterior knee pain;
(b) the chest wall injury and symptoms have resolved;
(c) he has intermittent neck pain (at the base of the neck) and over the top of both shoulders;
(d) “very significant” back pain in the lower back aggravated by sitting, bending, twisting or lifting, and
(e) no pain in the interscapular region of the thoracic spine.
The claimant reported taking Targin and Norgesic for pain and that he was having physiotherapy and hydrotherapy intermittently for back pain.
On examination, Medical Assessor Bodel records:
(a) in the cervical spine there was tenderness, guarding and a symmetrically restricted range of neck movement. There was no neurological abnormality reported;
(b) the thoracic spine examination was normal;
(c) in the lumbar spine there was tenderness with guarding and dysmetria (asymmetrical loss of motion) but no signs of radiculopathy;
(d) shoulder motion was restricted in the left more so than the right, and
(e) there was minor restriction of motion in the right knee.
Medical Assessor Bodel diagnosed at [26] and [27] injuries to the neck, shoulders and rib cage, thoracic and lower back as well as right and left knee. He says at [30] that the thoracic spine and chest injuries have resolved.
At [33] he assessed impairment as follows:
(a) left shoulder 6%;
(b) right shoulder 4%;
(c) lumbar spine 5%, and
(d) right knee 4%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer says at [8] that the Medical Assessor was not provided with all the documentation and did not consider all of the medical evidence and did not provide proper reasons which explained his decision. The insurer says the Medical Assessor incorrectly calculated lower extremity impairment and did not assess WPI for the neck injury which the insurer submitted ought be assessed at 0% based on the clinical findings.
The insurer says the Medical Assessor did not explain why he made no apportionment for pre-existing impairment in the light of his finding there was pre-existing pathology.
The insurer says that on 31 August 2023 the claimant lodged additional documents which were allowed in as evidence and that on 1 September 2023 the insurer lodged an application for late documents which were also allowed into evidence. The insurer says that the Medical Assessor at [4] says there were no additional documents provided.
The Medical Assessor cites the AMA 4 Guides and suggests the measurement of knee motion translates to a 0% impairment.
Claimant’s submissions
The claimant refers to a number of references in the decision of Medical Assessor Bodel that suggest he did have all the documents.
The claimant says Medical Assessor Bodel did explain his reasons for not allowing for a pre-existing shoulder impairment because he acknowledges while there was pre-existing pathology, “it clearly was not causing any impairment.”
The claimant interprets Table 41 of the Guides and says if there is an error it is in the insurer’s favour and the claimant is likely to have an additional impairment.
The claimant says the omission of an impairment assessment of the cervical spine is not material as the findings of the Medical Assessor suggest a 0% impairment in any event.
Procedural matters
First directions and first teleconference
On 6 December 2023 the Panel issued directions to the parties for bundles of documents. The insurer’s bundle was due on 12 January 2024 and was received on 9 January 2024 and comprised 326 pages. The claimant’s bundle due on 31 January 2024 was received on 14 February 2024 and comprises 172 pages.
The Panel met on 13 February 2024 and reported to the parties.
The Panel noted that:
(a) Medical Assessor Bodel was asked to assess the claimant’s chest, left shoulder, right shoulder, right knee, thoracic spine and lumbar spine;
(b) Medical Assessor Bodel has also assessed the claimant’s neck;
(c) impairments were found in the right knee, shoulder and lumbar spine, and
(d) no impairment was found in the thoracic spine, chest and cervical spine.
The Panel directed the parties to confer and advise the Panel “whether the claimant agrees the chest, thoracic and cervical spine do not need to be assessed”.
The Panel asked for details of the medical practitioners consulted by the claimant for the three years before the accident and any records from those medical practitioners.
The Panel advised of the details of the re-examination by the Medical Assessors and directed the claimant to attend the medical examination and bring with him copies of all relevant imaging.
Claimant’s responses
On 20 February 2024 the claimant’s solicitor wrote to the Commission asking why “two medical practitioners” would be conducting the assessment.
On 5 March 2024 the claimant’s solicitor wrote to the Commission advising that the claimant did not seek treatment from any medical practitioners in the three years before the accident and gave a list of the medical practitioners the claimant has seen since the accident.[5]
[5] On 14 March 2024 the claimant’s solicitor wrote to the Commission regarding the claimant’s application for review of a psychiatric impairment assessment. The claimant had been examined by Medical Assessor Friend who had certified that the claimant did not have a WPI of greater than 10% as a result of any psychiatric injury caused by the accident. The Panel is not aware of the current status of that application for review.
In a letter to the Panel dated 15 April 2024 the claimant’s solicitor advised that “the claimant instructs he has not recovered from any of the injuries and therefore all the injuries are in dispute and should be assessed.”
Application to Admit Late Documents
On 15 April 2024, the claimant lodged an application to admit late documents attaching reports from Dr Kuljic, Kim Patrick and clinical records of Dr Tomka and Dr Hyde. The claimant also attached a copy of the Certificate and Reasons of Medical Assessor Friend and Dr Bodel.
On 18 April 2024, the insurer uploaded a message into the portal advising that the insurer did not consent to the report of Patrick Kim being included as he “is not an AHP doctor.” The insurer consented to the other documents being admitted into evidence.
The claimant’s solicitor uploaded to the portal two letters sent to the insurer’s solicitors dated 20 April 2024 and 26 April 2024 concerning the additional document of Kim Patrick. The claimant submitted it was a work capacity report and not a medical report and there are no vocational capacity practitioners approved by the State Insurance Regulatory Authority and is an admissible document.
The Panel notes that the report of Kim Patrick was included in the claimant’s original bundle of 172 pages.
The Panel has allowed all of the late documents into evidence including the report of Kim Patrick. The contents of the report are not greatly relevant to a medical assessment of WPI and the insurer has been on notice of the report since the original bundle was filed in these review proceedings. They were never strictly “late” documents.
REVIEW OF THE EVIDENCE
Police, ambulance and hospital records
The police report[6] documents a “major traffic crash” involving two vehicles in a 50km speed zone. The pre-crash speed of the GIO vehicle (a Toyota Utility) was said to be 60km and the vehicle the claimant was in was said to be travelling at 50km.
[6] Page 30 of the insurer’s bundle and page 18 of the claimant’s bundle.
The ambulance report[7] records the claimant was standing outside of the car complaining of pain to the abdomen and right rib region. Pain relief was offered but refused.
[7] Page 119 of the insurer’s bundle.
The hospital notes[8] confirm the claimant was admitted due to fractures of the right 9th and 10th ribs and that Mr Radosevic was given a script for Targin and advised to see his GP in a week.
[8] Page 126 of the insurer’s bundle.
He had no head strike or loss of consciousness. He complained of no neck pain and could move his neck freely. He had no pain in the extremities and complained of chest pain with deep breathing.
The accident occurred at an intersection. The claimant has provided closed circuit television footage from two cameras on two properties facing the intersection. The second film in particular shows a sudden collision, at speed, with the vehicles spinning and colliding with property before stopping. The Panel notes the extensive damage done to both vehicles.
Claim form and claim documents
The claim form was signed as true and correct and dated 20 October 2020. The claimant describes the accident and says he injured his neck, lower and upper back, both shoulders, fractured two ribs.
The claimant denied any previous Compulsory Third Party (CTP) claims and said he was not, at the time, suffering from any illness or injury affecting the same parts of his body as those he says were injured in the accident.
The first page of what is likely to be the first certificate of capacity has been provided.[9] It notes the claimant was first seen at the practice on 8 October 2020 and documents the injuries as to the “neck, upper and lower back, both shoulders, both knees and fractured right ribs”.
[9] Page 30 of the claimant’s bundle.
On 30 June 2022, Dr Tomka issued another certificate of capacity listing the injuries as neck, upper and lower back and both shoulders. No knees and no ribs are mentioned.
A certificate of capacity has been provided signed by Dr Tomka and dated 19 August 2022. The injuries are noted as neck, both shoulders, upper and lower back and post-traumatic stress disorder.
Treating medical records and reports
Dr Tomka’s notes have been provided. They give little in the way of information other to confirm certificates of capacity were issued, referrals were written and prescriptions for pain killing medication provided. On most of the consultation dates there is little in the way of a description of symptoms, or any parts of the body mentioned.
On 17 November 2020 at the request of Dr Tomka, the claimant had an MRI of his right shoulder[10] at Castlereagh Imaging in Edgecliff which showed:
(a) mild to moderate subscapularis and supraspinatus insertional tendinopathy;
(b) superior labral tear;
(c) parameniscal cyst;
(d) mild gleno-humeral joint degenerative change, and
(e) mild subacromial/subdeltoid bursitis.
[10] Page 32 of the claimant’s bundle.
Also on 17 November 2020, the claimant had an MRI of his cervical and lumbar spine at the request of Dr Tomka. These showed:
(a) multilevel degenerative disc changes at C3/4 with left foraminal narrowing at the C4 nerve root;
(b) a C5/6 broad based disc bulge with right sided foraminal narrowing with contact at the C6 nerve root;
(c) multilevel disc changes at L2/3 and L4/5, and
(d) at L5/S1 impingement of the exiting nerve root at L5 left more so than the right.
Dr Guirgis saw the claimant and wrote to Dr Tomka on 24 November 2020. He diagnosed:
(a) post-traumatic mechanical derangement of the cervical, thoracic and lumbar areas;
(b) post-traumatic symptoms of subacromial impingement in the right shoulder joint;
(c) post-traumatic symptoms in the right lower chest wall at the site of the rib fractures, and
(d) post-traumatic symptoms in the right and left knee joints.
On 27 November 2020, the claimant had a full bone scan[11] of the neck and lower back at the request of Dr Guirgis on the basis of a clinical presentation of “pain in shoulders, low back and both knees”. The conclusion was:
(a) discovertebral degenerative arthritis at C5/6, L5/S1;
(b) arthropathy in the left facet joint at L4-5, and
(c) recent fracture of the 7th, 8th and 9th ribs.
[11] Page 35 of the claimant’s bundle.
Dr Guirgis referred the claimant to Professor Murrell and on 2 December 2020, Professor Murrell wrote to Dr Guirgis[12] noting the claimant had a good range of motion in the right shoulder with a positive O’Brien sign.[13] He noted the MRI indicated tendinopathy a labral tear and ganglion cyst confirmed on ultrasound, and he advised arthroscopic stabilisation of these features.
[12] Page 115 of the insurer’s bundle and page 37 of the claimant’s bundle.
[13] Which would indicate a SLAP tear.
Professor Murrell made no comment at all about the left shoulder.
On 16 December 2020 the claimant had an MRI of his left shoulder at Castlereagh Imaging at Edgecliff at the request of Dr Tomka. This revealed an undisplaced posterior labral tear, with labral cyst but no significant rotator cuff abnormality. There was mild subacromial / subdeltoid bursitis and acromioclavicular joint osteoarthrosis.
On the same date the claimant also had an MRI of the right knee which showed degenerative changes, a possible undersurface tear but no lateral meniscal tea.
Dr Guirgis saw the claimant on 2 February 2021 and he wrote a short letter to Dr Tomka.[14] Dr Guirgis maintained his diagnosis of cervical, thoracic and lumbar areas of the spine noting L5 right sided sciatic radiation; right shoulder issues, right lower chest wall symptoms, right knee joint symptoms but he noted “the left knee became OK.” In a second letter of the same date there is a much longer explanation for each of the diagnoses and the left shoulder is also included.
[14] Page 41 of the claimant’s bundle.
Dr Guirgis next saw the claimant on 23 September 2021 and wrote to Dr Tomka.[15] The claimant was reporting “intolerable pain in the right shoulder and tolerable stiffness in the left”. The claimant was fearful of surgery. There is then repetition of much of the information from previous reports.
[15] Page 46 of the claimant’s bundle.
Mr Kaluderovic of Bodyhealth lodged an Allied Health Recovery Request (AHRR) form seeking approval for eight sessions of physiotherapy addressing the injuries to the neck, lower back, shoulders and knee. In the seventh AHRR, Mr Kaluderovic noted the claimant had improved and he was transitioning the claimant to a home-based exercise program. Notes have been provided documenting his treatment.
The first report from Mr Kaluderovic is dated 9 November 2020.[16] The claimant was complaining of pain at the level of 10 out of 10, he had difficulties with his activities of daily living was not working or sleeping and had pins and needles in the lower limbs.
[16] Page 31 of the claimant’s bundle repeated at page 137.
The claimant was discharged from physiotherapy on 2 September 2021[17] by Mr Kaluderovic of Bodyhealth due to there being no further funded sessions.
[17] Page 57 of the insurer’s bundle and page 45 of the claimant’s bundle.
Mr Jung of OccHealth Network Pty Limited applied to the insurer to provide rehabilitation services to the claimant in a request dated 28 July 2021.[18] Two further requests were made for additional services aimed at improving the claimant’s chances of returning to work.
[18] Page 95 of the insurer’s bundle.
Dr Hyde, psychiatrist saw the claimant and reported to Dr Tomka on 18 October 2021[19] that the claimant had an adjustment disorder and post-traumatic stress disorder. He commenced the claimant on Sertraline advising that it would take up to four weeks for it to take effect.
[19] Page 47 of the insurer’s bundle. The referral is found at page 64.
Dr Hyde next saw the claimant on 15 February 2022. The claimant was still depressed, and his medication was increased, and he was referred to a psychologist. There was no improvement on 14 March 2022.
When seen in December 2022 the claimant had not started counselling, had chronic pain and remained depressed and anxious. The claimant was reported to be taking 30mg of mirtazapine but reported feeling over sedated in the mornings.
Dr Tomka referred the claimant to Liverpool Hospital pain clinic on 15 September 2022 for “chronic pain after MVA”.[20]
[20] Page 46 of the insurer’s bundle.
Medico-legal reports
Whilst Dr Guirgis was a treating specialist referred by Dr Tomka, he also accepted instructions from the claimant’s lawyers and prepared a report in the claim dated 18 February 2022.[21]
[21] Page 57 of the claimant’s bundle.
Dr Guirgis expressed the view the claimant’s injuries were non-threshold (due to the fractured ribs) and indicated the WPI was 22% assessing the thoracic spine at 0% and the noting the left knee has resolved.
Dr Hyde Page saw the claimant at the request of the insurer and provided a report dated 13 December 2022.[22] He records complaints of ongoing neck pain and stiffness, pain and stiffness in the shoulders, low back pain and stiffness and pain in the front of his knees.
[22] Page 35 of the insurer’s bundle.
On examination Dr Hyde Page was concerned with the claimant’s consistency as he displayed abnormal pain reactions and stiffened resisting a full active range of motion. Dr Hyde page noted a difference in range of motion between formal examination and informal observation. There was a full range of motion in the knees.
Dr Hyde Page found no impairment to any of the allegedly injured body parts.
Dr McMahon, psychologist provided a report to the insurer dated 27 March 2023.[23] Dr McMahon, after administering tests considered the claimant was feigning some of his symptoms and diagnosed a somatic symptoms disorder with predominant pain. Due to the attitudinal factors he declined to assess impairment.
[23] Page 228 of the insurer’s bundle.
Dr Kuljic, psychiatrist provided a report to the claimant’s solicitors dated 18 August 2023.[24] He has a history of the claimant emigrating in 2003 and working in 2005 as a carpenter and that, at the time of the accident he was working full time at Sydney Airport.
[24] Page 118 of the claimant’s bundle and also attached to the application for late documents.
The claimant denied any previous medical history of psychological injury.
Dr Kuljic has a history of the delay in onset of psychological symptoms and that nine months earlier he had been referred to a psychiatrist and that he was now prescribed an anti-depressant Mirtazapine.
The claimant reported significant intrusive symptoms and sleep disturbance.
Dr Kuljic diagnosed a post-traumatic stress disorder with significant symptoms affecting his ability to work and function in a social and family setting. He assessed WPI at 20%.
Vocational assessment was undertaken, and it was noted that the claimant could work full time in sedentary or selected light jobs.
The physical examination undertaken as part of the vocational assessment indicated issues of consistency including a greater range of shoulder movement when not being formally examined. There was also pain behaviours noted and exaggeration.
OTHER ASSESSMENTS
Medical Assessor Friend examined the claimant on 23 November 2023 and issued his certificate on 6 December 2023 certifying the claimant had a WPI of 6% in respect of his psychological injuries. The Medical Assessor had diagnosed a persistent Depressive Disorder and Generalised Anxiety Disorder.
RE-EXAMINATION FINDINGS
Mr Radosevic attended the Commission’s Medical Suites on 3 May 2024 for re-examination by Medical Assessor Rosenthal and Medical Assessor Oates as arranged. A Serbian interpreter was present for the duration of the assessment. Mr Radosevic was able to converse reasonably well in English, however needed the assistance of the interpreter from time to time.
History
Pre-accident medical history and relevant personal details
The claimant is 52 years of age. He came to Australia from Europe in 2003. He has worked as a formwork carpenter since arriving in Australia, up until the time of the accident.
He told the Medical Assessors that he only attended a GP once or twice in his time in Australia, as he was in very good health. He remembers attending a Dr Todorovic when he had some chest pain and had a chest X-ray and blood tests, but no treatment was required.
He had a minor car accident in 2012 and went for a medical check-up but there were no injuries.
He has had occasional low back pain or stiffness but required no treatment, just an occasional day off work.
In 1993, he sustained a bullet wound to the abdomen, penetrating the colon, in the Balkan conflict.
History of the motor accident
Mr Radosevic said that on 4 October 2020, he was the front seat passenger, wearing a seatbelt, in a Nissan Navara vehicle. He and his friend (who was driving) were going through an intersection when a car came through a give-way sign from their right at speed and a collision ensued. The airbags in the vehicle Mr Radosevic was in were deployed.
He was taken by ambulance to Campbelltown Hospital. He stayed overnight in hospital. He had scans and was given analgesics.
He remembers immediate chest pain, then after about an hour he felt pain over the right ribs and then the shoulders, and the next day some right knee pain. He noticed a bruise on the right knee and right elbow.
History of symptoms and treatment following the motor accident
Mr Radosevic rested for a few days and then saw his GP, Dr Tomka. He was treated with Targin and had scans, and was then referred to Dr Guirgis, orthopaedic surgeon in Newtown. Mr Guirgis assessed him and referred him on to Professor Murrell, shoulder orthopaedic surgeon, regarding the right shoulder.
The claimant had an ultrasound scan and surgery was recommended. He did not proceed with the surgery and did not have any cortisone injections for the shoulder. He had physiotherapy and hydrotherapy. He then started a gymnasium program which was supervised. Treatment from the therapist was directed to both shoulders and there was some treatment to the lower back. Mr Radosevic said he had no treatment to the knees.
Dr Guirgis subsequently referred him to Professor Murrell for an opinion about the left shoulder, but the insurer declined liability, so this assessment did not take place.
Mr Radosevic later added that he initially injured his left knee in the accident, but that this has since resolved.
He has not returned to work since the motor vehicle accident because of low back and shoulder problems. Mr Radosevic said the insurer is paying him benefits.
Details of any relevant injuries or conditions sustained since the motor accident.
Mr Radosevic said he has had no further accidents, injuries or conditions develop.
Current symptoms
Mr Radosevic has tightness in the neck and says he cannot extend his head backwards because of discomfort. He has tingling in the ring and little fingers of both hands, which disturbs his sleep at times, and is also noticed when he lifts his arms.
Mr Radosevic says he does not have any discomfort or pain in the thoracic interscapular area of the spine.
His low back is stiff, and he says he is unable to bend without discomfort.
He has bilateral shoulder problems, with the right being greater than the left. He has pain he says fairly constantly on the right side but intermittent in the left side. The left shoulder will lock for 10-15 seconds sometimes.
His right knee is sore if he squats or when using stairs, or with prolonged walking. Mr Radosevic said he has had no swelling, locking or clicking in the right knee. He denied any symptoms in his left knee.
His ribs are now OK and he has no further chest discomfort.
His wife does not work. Their two daughters have grown up. He does a few light household chores and carries the bins if his shoulder is not too bad. The insurer pays for someone to come and do the mowing.
His wife had spinal surgery recently and cannot do much at home.
Current and proposed treatment
Mr Radosevic says he uses Therabands to do exercises for his arms.
He takes Targin and Norgesic as required, not every day, but will take some if he has to go out.
He has Mirtazapine at night, prescribed by his psychiatrist to help him sleep. He says he cannot sleep because of discomfort in the back and right shoulder, depending on his position.
He is no longer having any physical therapy.
He sees Dr Tomka only now. He no longer sees any specialist since he declined to have shoulder surgery. He just tries to live with things as they are.
He says he attended imaging in Edgecliff because a family friend offered to drive him there, as he (the friend) had previously had imaging done there, and Mr Radosevic could not drive at the time because of shoulder and back pain.
EXAMINATION
General presentation
Mr Radosevic was 190cm tall and weighed 100kg.
He sat comfortably whilst relating his history and could transfer without visible physical discomfort out of a chair and on and off the couch.
Cervical spine (cervicothoracic)
There was no guarding. There was mild central lower cervical tenderness.
Flexion and extension were both one-half normal range with discomfort complained of, particularly on extension. Lateral flexion was one-third normal range both left and right and rotation was one-half normal range on both sides.
Sensation, power and reflexes in the upper limbs were tested and the results were all normal. The girth of the upper arms was measured at 31cm on the right and 30.5cm on the left at 10cm above the elbow crease. Forearm girth was also measured at 29.5cm on the right hand side and 28.5cm on the left at 10cm below the elbow crease.
Thoracic spine (thoracolumbar)
There was no guarding or tenderness. Thoracic rotation was symmetrically reduced to one-third normal range bilaterally.
Sensation was intact over the trunk.
Lumbar spine (lumbosacral)
There was no guarding. There was no specific focal tenderness. Flexion and extension were one-half normal range, lateral flexion was one-quarter normal range on both sides, and rotation was one-third normal range bilaterally. As restriction of movement was equal, there was no dysmetria.
There were no non-verifiable radicular complaints made by Mr Radosevic. In particular he did not describe any radiating pain into his lower limbs. Reflexes in the lower limbs were present, all of low amplitude but symmetrical. Plantar responses were both flexor. Sensation and power in the lower extremities was normal on testing.
Straight leg raising was 70° bilaterally with hamstring tightness but negative nerve stretch indicating no nerve root tension signs were present.
The girth of the thighs was equal on both sides at 47cm measured at 10cm above the superior patellar pole. The girth of the calves were measured at 37cm on the right and 37.5cm on the left.
On attempted toe walking, Mr Radosevic seemed to have difficulty maintaining his balance, but heel walking was OK. He complained of a little right low back discomfort. He could squat only one-quarter with support, complaining of soreness in the back, right shoulder and right knee.
Upper extremity
Active range of movement of the shoulders was measured with a goniometer and repeated.
Range of Movement of Shoulders Movement Right shoulder ROM Left shoulder ROM Flexion
100°, 90°, 90°
limited by shoulder pain120°, 110°, 100°
limited by shoulder painExtension 30°, 30°, 30° 30°, 30°, 30° Adduction 35°, 30°, 35° 45°, 40°, 45° Abduction 100°, 90°, 90° 120°, 120°, 120° Internal rotation 60°, 60°, 60° 60°, 60°, 60°
with complaint of shoulder painExternal rotation 90°, 90° 90°, 90
The Medical Assessors asked the claimant why his shoulder range of movement was worse at the re-examination than the measurements recorded in Medical Assessor Bodel’s certificate. The claimant said he does not know why this is, and then added that his ability to move his shoulders varies during the day according to how much activity he has undertaken and the time of the day. He says he finds his shoulders are more restricted in the mornings.
The claimant was examined at 9.30am.
Lower extremity
There was a patellar click on both sides but no crepitus, and no retropatellar discomfort when the patellar was compressed.
There was also medial right knee discomfort, but McMurray’s test was negative for a meniscal tear. The ligaments were stable.
Range of Motion of Knees Movement Right knee ROM Left knee ROM Flexion
115°
130°
Extension 0° 0°
The claimant said he found it difficult to relax his legs to enable the Panel to check active movement of the knees, which was measured with a goniometer.
Consistency of presentation
Because of the variation in shoulder measurements, both at the time of the Panel re-examination and compared with the findings of other examiners (see annexure 1 to these reasons), the Medical Assessors on the Panel decided that active range of movement cannot be used to assess permanent impairment of the shoulders.
Imaging
The imaging films of MRI scans of the whole spine, shoulders and knees, and also a bone scan, were brought to this assessment. These reports are in the file of evidence and after viewing the images, the Assessors agreed with the radiological reports.
DIAGNOSIS AND CAUSATION
The Panel has viewed the footage of the accident and it appears to have been a very sudden accident which caused significant damage to both vehicles.
Having considered the insurer’s submissions in response to the original application for medical assessment and the submissions in support of this review, there does not appear to be any issue raised as to the causation of an injury to the various body parts assessed by Medical Assessor Bodel. What is clearly in dispute is the nature and extent of each of the injuries and the resulting WPI.
Chest
There were fractures to right-sided ribs in the chest wall. The accident was clearly a cause of this injury, as it was referred to in the ambulance and hospital records.
This injury has resolved, and the claimant says he has no chest symptoms.
Left shoulder
The accident was a cause of a left shoulder injury, as it is referred to in the early GP records dated 8 October 2020 and has been investigated with an MRI in December 2020. The Panel notes Professor Murrell made no comment in his report of any complaints in the left shoulder. The injury has been reported in the medico-legal reports and is still symptomatic.
It is the Medical Assessor’s clinical judgment that the claimant has sustained a soft tissue injury to his left shoulder on a background of degenerative changes.
Right shoulder
The accident was a cause of a right shoulder injury, as it is referred to in the GP records from soon after the accident and in the AHRR as above. The claimant has seen a specialist and has been advised to have surgery which he declines.
The claimant has made complaints of right shoulder symptoms since the time of the accident and on the basis of the re-examination and the history from the claimant that injury is still symptomatic.
It is the Medical Assessor’s clinical judgment that the claimant’s right shoulder injury is a soft tissue injury to his left shoulder on a background of degenerative type changes in the joint.
Lumbar spine
The GP record of 8 October 2020 and the AHRR of 4 November 2020 both mention lower back pain. The lower back was included in the claim form on 20 October 2020. Dr Guirgis diagnosed mechanical derangement of the lower back.
The lumbar spine injury is still symptomatic.
It is the clinical judgment of the medical members of the Panel that the claimant sustained a soft tissue injury to the lower back on a background of degenerative changes identified in radiology and the bone scan of 27 November 2020.
Thoracic spine
As above, the upper back was referred to in the first GP note, the claim form and the first AHRR. The Medical Assessors are of the view that on the basis of their clinical experience, the claimant sustained a soft tissue injury to this part of his body.
The Panel notes the normal examination and the claimant’s lack of complaints in this area and is satisfied that the thoracic spine injury has resolved.
Cervical spine
Mr Radosevic included his neck in the list of injuries in the claim form. The certificate of capacity written by Dr Tomka includes a neck injury and the first AHRR sought treatment for the neck. The claimant has had his neck investigated with an MRI on 17 November 2020 which revealed degenerative changes and Dr Guirgis has diagnosed mechanical derangement of the cervical spine.
The Panel is satisfied that the claimant injured his cervical spine in the accident and that the nature of that injury is a soft tissue injury aggravating degenerative changes in the cervical spine.
Right knee
The accident was a cause of this injury. The right knee was referred to in the GP records and AHRR as above and Dr Guirgis records complaints in the right knee. The right knee remains symptomatic but there is no clinical evidence of any bony, ligament or meniscal injury.
It is the clinical judgment of the medical members of the Panel that this injury is a soft tissue injury with contusion.
PERMANENT IMPAIRMENT
As the injuries to the chest and the left knee have recovered, there is no assessable impairment in those parts of the claimant’s body resulting from any accident-related injury.
Assessment of the spine generally
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
If injury to the spine is alleged then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories and a number of indicia provided (see Table 7). The first is diagnosis-related estimate (DRE) category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
DRE II requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE III requires radiculopathy which is defined in cl 6.138 as
“dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …
(a)loss or asymmetry of reflexes;
(b)positive sciatic nerve root tension signs;
(c)muscle atrophy and/or decreased limb circumference;
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Lumbar spine
The clinical findings on re-examination were consistent with DRE Lumbosacral Category I giving 0% WPI.
There was no dysmetria and no guarding. While Dr Guirgis has a record of sciatic complaints, the claimant did not mention any symptoms in his lower legs which could be considered as non-verifiable radicular complaints. There were none of the five signs of radiculopathy required by the Guidelines for a DRE III impairment.
Cervical spine
There was no guarding and no dysmetria. Mr Radosevic did not complain of pain in his neck, constant or intermittent. He did complain of a tight neck with discomfort on extension and tingling in the ring and little fingers of both hands.
The clinical findings on re-examination were consistent with DRE Cervicothoracic Category I which attracts 0% WPI. It is the clinical judgment of the medical members of the Panel that the complaint of pins and needles in the ulnar two fingers of each hand are not non-verifiable radicular complaints. They occur in a peripheral nerve distribution, most likely the ulnar nerve at the wrist level, but not in a specific cervical nerve root distribution, which would be more widespread involving the ulnar aspect of the forearm and the inner upper arm. The Panel notes that these symptoms have not been medically investigated or diagnosed.
Right knee
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Clause 6.70 and Table 6.5 of the Guidelines states which of the above methods can and cannot be combined and Table 6.6 provides guidance is selecting the most appropriate method. Clauses 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
On the range of motion method, the re-examination findings resulted in a 0% assessable permanent impairment arising from the right knee injury.
A finding of 2% WPI could be allowed under the arthritis method if there was a history of direct trauma (which there appears to be in this case) with complaints of patellofemoral pain and crepitation. As there was no crepitus with tenderness on patellar compression the arthritis method does not give rise to an assessable permanent impairment.
There was also no ligamentous laxity demonstrated on clinical examination and therefore none of the diagnostic estimates provided for in Table 64 at page 85 of the AMA 4 Guides can apply.
It is the clinical judgment of the medical members of the Panel that there is no other method of assessment appropriate or applicable in Mr Radosevic’s case and he has no assessable right knee impairment.
Shoulders
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The usual method of assessment is the range of motion method. Clause 6.50 provides that range of motion should be assessed as follows:
(a) a goniometer should be used where clinically indicated;
(b) passive 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;
(c) if 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;
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines), and
(e) if 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 Medical Assessors determined that there was a permanent impairment present, when they examined Mr Radosevic but that active range of movement could not be used as a valid indicator of permanent impairment for the following reasons:
(a) inconsistency in some of the findings on active range of movement on re-examination;
(b) variability of the results between the Medical Assessors’ measurements and other examiners, and
(c) the claimant’s evidence that his range of shoulder motion varies depending on activity level and the time of day.
Medical Assessors Oates and Rosenthal exercised their clinical judgment and determined that it was appropriate to consider an analogous condition in Section 3.1m of AMA 4 Guides, the “Other Disorders of the Upper Extremity” section. The condition chosen was crepitation of the acromioclavicular joint for each shoulder. This was chosen because this type of condition can cause symptoms and examination findings similar to what the claimant is experiencing in this case, namely pain and discomfort on active elevation of the arms at the shoulder joints.
At the right shoulder, the Medical Assessors assessed a moderate crepitation severity, which is 20% impairment of the joint in accordance with Table 19 on page 59 of AMA 4 Guides. The acromioclavicular joint is 25% UEI in accordance with Table 18 on page 58. As 20% of 25% is 5%, the claimant has a 5% UEI which translates to a 3% WPI.
At the left shoulder, the Medical Assessors assessed mild severity of the condition, which is 10% impairment of the joint. As 10% of 25% is 2.5% which must be rounded up to 3% UEI, which is equivalent to 2% WPI.
CONCLUSION
Of the injuries considered by Medical Assessor Bodel (including the neck) the claimant’s WPI is assessed at 5% made up of the following:
(a) lumbar spine 0%
(b) thoracic spine recovered with no assessable impairment
(c) cervical spine 0%
(d) right shoulder 3%
(e) left shoulder 2%
(f) chest recovered with no assessable impairment
(g) left knee recovered with no assessable impairment
(h) right knee 0%.
As the Panel has come to a different conclusion to Medical Assessor Bodel it follows that his certificate must be revoked.
ANNEXURE 1 SHOULDER MOTION
| Left Shoulder | Normal | Dr Guirgis Feb 22 | Dr Hyde Page | Medical Assessor Sep 23 | Review Panel May 24 |
| Flexion | 180 | 150 | 120 | 140 | 120, 110, 100 |
| Extension | 50 | 50 | 30 | 40 | 30 |
| Abduction | 180 | 140 | 100 | 120 | 120 |
| Adduction | 50 | 50 | 30 | 20 | 45, 40, 45 |
| Internal rotation | 90 | 80 | 80 | 60 | 60 |
| External rotation | 90 | 50 | 70 | 60 | 90 |
| Right Shoulder | Normal | Dr Guirgis Feb 22 | Dr Hyde Page Dec22 | Medical Assessor Sep 23 | Review Panel May 24 |
| Flexion | 180 | 100 | 120 | 160 | 100, 90, 90 |
| Extension | 50 | 20 | 30 | 40 | 30 |
| Abduction | 180 | 100 | 100 | 20 | 100, 90 |
| Adduction | 50 | 30 | 30 | 140 | 35, 30 |
| Internal rotation | 90 | 40 | 80 | 60 | 60 |
| External rotation | 90 | 40 | 70 | 60 | 90 |
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