AAI Limited t/as GIO v Russell

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Russell [2023] NSWPICMP 359
CLAIMANT:	Christopher Russell
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	26 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Wijetunga and insurer’s review under section 7.26; claimant alleged injuries to back, left knee, right hip and right shoulder; WPI assessed at 13%; application for review made on basis of causation; claimant had injured his left knee in October 2017 and was using crutch and walking stick for mobility at the time of the May 2018 motor accident; claimant pedestrian and knocked over by reversing car; claimant could not get onto examination couch; could not take his shirt off and would not demonstrate six movements of his shoulder; Held – claimant denied injury to his right hip; claimant sustained aggravation or exacerbation of the pre-existing injury which has now returned to its previous level; injury to shoulder including tears and lumbar spine injury caused; WPI of left knee is 0% on basis recovered and 0% in any event; lumbar spine Diagnosis Related Estimate (DRE) I (0%) and right shoulder 3%; range of motion method could not be used; discussion of appropriate method to be used; Certificate of MA revoked; claimant did not have WPI greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Wijetunga dated 13 September 2022. 2. Certifies that the degree of Christopher Russell’s permanent impairment resulting from the injuries caused by the motor accident on 10 May 2018 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Christopher Russell was involved in a motor accident on 10 May 2018. Mr Russell says he was walking across the street in a shopping district when a car reversed into him and he fell to the ground. He was at the time, 52 years of age and is now 58.
The claimant says he injured mainly his back and right shoulder in the accident and made a claim for damages against GIO, the third-party insurer of the vehicle that he says was at fault and caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Russell referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Wijetunga determined on 13 September 2022 that Mr Russell had a WPI of 13% which is of course greater than 10%. The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 20 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 shortly thereafter the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mr Russell’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are regulated by the provisions in Part 4, Division 4.3 of the MAI Act. 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 2022 is $605,000.

Dispute resolution

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] Section 4.12 of the MAI Act.
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 Wijetunga, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Section 7.26(6) of the MAI Act provides that a Review Panel is to undertake a “de novo” assessment. This means that when determining the current proceedings, the Review Panel’s task, is not to look for errors and to conduct an appeal.
The Panel, like a medical assessor “is not to pronounce on the correctness of other medical opinion”, put before it by the parties, “but to form his or her own opinion”: Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [64]. The job of the Panel therefore is not to adopt one or other of the medical opinions on which either the claimant or the insurer relies, or even to choose between the opinions of the parties’ experts. The Panel must form its own opinion on the matters in issue between the parties in a fresh assessment of what is disputed.

Permanent impairment assessment

Permanent impairment must be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3 of the AMA 4 Guides, the musculoskeletal system, is relevant.

ASSESSMENT UNDER REVIEW

Medical Assessor Wijetunga examined the claimant on 7 September 2022 and issued her certificate on 13 September 2022. At [2] she lists the injuries she was asked to assess:
(a)    injury to the right shoulder by way of tear of the long head of the biceps and near full thickness tear of the supraspinatus tendon/subscapularis tendon partial tear and subdeltoid/subacromial bursitis;
(b)    injury to the left knee by way of tear of the medial meniscus;
(c)    right hip soft tissue injury, and
(d)    lumbar back – soft tissue injury.
Medical Assessor Wijetunga at [8] took the claimant to the following pre-accident injuries and conditions:
(a)    in 2010, he had a work injury when he slipped and injured his foot. He had no time off work, but it took a couple of months to recover;
(b)    in 2017, he had a left knee injury. He had physiotherapy but lost no time off work. He used a walking stick because of instability (and not pain) and had 70% recovered at the time of his car accident, and
(c)    he did not recall an incident at Aldi in December 2017 where he was pushed and developed right hip and back pain. The claimant said he was on crutches and does not remember any ongoing right hip or back pain before the current accident.
The claimant told Medical Assessor Wijetunga that the insured car reversed into him, and he lost balance falling onto his front and right side with his right arm outstretched. He said he “experienced difficulty getting up and dragged himself to the gutter.” He was treated by ambulance officers at the scene, advised to go to hospital but he then drove home. Over the next few days, the claimant described pain in his lower back, right hip and right shoulder with left knee pain developing. He could not move his right shoulder at all. He went to a medical centre and had physiotherapy for his knee and shoulder and undertook “personal training to assist with strengthening”.
He said he had a steroid injection into his right shoulder which assisted, and he was referred to a surgeon who recommended conservative treatment. He reported “all his symptoms have improved after two years.”
He recalled an incident at hydrotherapy when he “slid down a wall, but did not fall” resulting in him being taken to hospital, but he did not recall his symptoms worsening.
The claimant’s current symptoms were:
(a)    daily burning and constant ache in the right shoulder with instability;
(b)    constant pain in the left knee and instability and difficulty with negotiating hills and stairs, and
(c)    right hip and lower back – Mr Russell denied any right hip pain saying he gets pain coming from his lower back which is intermittent and daily and his lower back “locks”.
Mr Russell took Panadeine Forte, Panadol or Voltaren but has had no physiotherapy or personal training for a year and a half and undertakes exercises on his own.
On examination Medical Assessor Wijetunga noted some difficulties with the examination (restricted range of movement when removing his shirt and difficulty standing unaided) and she records:
(a)    lumbar spine, no muscle spasm or guarding, normal range of motion other than reduced right flexion – there was dysmetria then in the flexion / extension plane of movement;
(b)    lower limb neurological examination was normal in tone and strength and reflexes. Straight leg raising was noted to be 70 degrees on the right and 30 degrees on the left and a sciatic stretch test was negative. There was altered sensibility in the right leg and left foot which did not correlate to a specific dermatome;
(c)    lower limbs – there was a 3cm difference between the left thigh (65cm) and the right (62cm) thigh. Medical Assessor Wijetunga noted that usually she would expect a smaller left thigh due to the left knee injury;
(d)    upper limbs – left shoulder motion was normal and right shoulder motions were significantly impaired (see the summary table at [189] of these reasons), and
(e)    the left knee showed some swelling and Mr Russell had an antalgic gait requiring the assistance of a walking stick with decreased range of motion (90 degrees compared to 140 in the right).
In her assessment of impairment, Medical Assessor Wijetunga assessed the lumbar spine as diagnostic related estimate (DRE) category II (5% WPI) noting the presence of dysmetria and stated that the claimant did not suffer radiculopathy and qualify for DRE category III.
The Medical Assessor assessed the right shoulder using the range of motion method and set out her upper extremity impairment (UEI) calculations totalling 13% which translated to a WPI of 8%.
She considered the claimant’s left knee injury had recovered to its pre-accident state and there was no impairment to it or the right hip as Mr Russell did not claim injury to his right hip.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer applicant’s submissions in support of the application for review were dated 5 October 2022.[5] The Panel requested updated submissions from the insurer which were received on 9 June 2023.
[5] And are found at page 9 of the insurer’s bundle of documents.
The insurer relies at [4] on its expert, Dr Rimmer who identified abnormal illness behaviour and says that the claimant’s condition was inconsistent with the alleged injuries and disabilities. He assessed the claimant as having a 7% WPI.
The insurer at [7]-[8] takes issue with the assessment of no pre-existing impairment.
The insurer acknowledges at [10] the Medical Assessor’s finding that the left knee injury has resolved. Despite this the insurer’s submissions at [11] to [19] provide significant detail about the claimant’s pre-existing left knee problems. As Medical Assessor Wijetunga had found the left knee injury had recovered, there is no impairment and therefore no issue of pre-existing impairment.
The insurer’s supplementary submissions acknowledge an error in [17] which should have referred to submissions dated 15 December 2021 (not 2015). The insurer also says in its supplementary submissions that although Medical Assessor Wijetunga assessed the impairment related to the claimant’s accident-related knee injury at 0%, the Medical Assessor should have provided an assessment of the unrelated WPI.
The insurer says at [19] that Dr Rimmer had diagnosed the claimant with an aggravation of a pre-existing right rotator cuff problems. The insurer referred at [20] to an entry in the general practitioner (GP) notes of 15 December 2015 that suggested the claimant’s degenerative disease in the right shoulder had worsened. The insurer’s supplementary submissions acknowledge there is an error in the suggestion there was a 15 December 2015 entry in the GP notes.
The insurer confirmed it has no pre-accident GP notes. The insurer also acknowledges that it does not have any evidence of a pre-existing symptomatic impairment but says there were degenerative changes in the right shoulder before the accident and relies on Dr Rimmer’s diagnosis of an aggravation of those changes.
The insurer suggests at [20] that the Medical Assessor has not considered the pre-existing degenerative changes and that it “would seem to be untenable for a nil pre-existing impairment to be found in circumstances where the claimant was using walking aids”. After the Panel queried this submission, the insurer’s supplementary submissions explain that the claimant’s right shoulder condition appears to have deteriorated since the accident and suggests the claimant’s weight (170kg) and his prolonged use of walking aides for an unrelated condition must have contributed to the current impairment in the shoulder.
Again, the insurer at [23]-[26] takes issue with the Medical Assessor’s failure to identify a pre-existing impairment in the claimant’s left knee.
At [27] the insurer refers to an assessment by Medical Assessor Barrett. The insurer, in its supplementary submissions acknowledges this is a typographical error and the reference was meant to be to Medical Assessor Wijetunga.
The insurer’s supplementary submissions argue that the findings of Dr Rimmer in relation to right shoulder impairment should be preferred as correct. In respect of the lower back and right hip the insurer again relies on Dr Rimmer who diagnosed a “resolved musculoskeletal strain of the lumbar spine” and says that any ongoing impairment to the back and hip is likely to be caused by the claimant’s long-term use of walking aids.

Claimant’s submissions

The claimant notes the insurer does not take issue with the assessment of the lumbar spine injury or the finding that the left knee has recovered.
The claimant notes the insurer takes issue with the assessment of the right shoulder and the failure to take into account a pre-existing impairment. The claimant says at [17] the Medical Assessor has to be satisfied in accordance with cl 6.31 of the Guidelines that there is objective evidence of a pre-existing symptomatic impairment.
The claimant notes the insurer refers to an entry in the GP records dated 15 December 2015 and says this is an error in that the entry is dated 12 November 2021 which is after the accident and just before an MRI was performed.
The claimant further notes, Dr Rimmer did not make an adjustment in his assessment of the shoulder for pre-existing impairment.
The claimant lodged additional submissions prepared by counsel for the claimant and dated 23 June 2023. With respect these submissions do not assist the Panel as they are directed at the gatekeeper’s function of determining reasonable cause to suspect a material error. The claimant maintains that there is no error in the assessment of the knee impairment, that there is no evidence presented by the insurer of a symptomatic pre-existing impairment of the right shoulder and that there is no error in Medical Assessor’s assessment.

Procedural matters

The Panel issued directions to the parties on 17 February 2023 for bundles of documents as the Panel was concerned not all material relevant to the assessment had been uploaded.
The insurer’s bundle comprising 527 pages was uploaded on 27 March 2023.[6] As there were documents referred to in submissions but not included in that bundle, the Panel requested the insurer lodge a further bundle of all documents relied on by the insurer and a second bundle was provided comprising 670 pages.[7]
[6] And is identified in these reasons as AD2.
[7] This bundle will be the reference point for the insurer’s documents and will be referred to as the “insurer’s final bundle”.
The claimant’s bundle was provided on 10 May 2023[8] and a final indexed and paginated bundle comprising 475 pages was provided and has been considered.

REVIEW OF THE EVIDENCE

[8] And is identified in these reasons as AD3.

Claim form and claim documents

The claimant’s application for personal injury benefits was signed and dated 23 May 2018.[9] He gives this version of how the accident happened:
“I was crossing the road in the middle of the street. I'm on crutches so I ensure that there is no traffic at all. I saw a car coming from left and it parked across the road from me. I proceeded to cross and someone got out [of the car] from the passenger side. I was about 2 metres from completing the crossing and I'd heard yelling, so I thought it was safe to complete the crossing but as soon as the passenger door was closed I saw the reverse lights engage and the car reversed directly into me with some speed. I was forced to turn to brace myself (raising my hands and crutch) when I was knocked to the ground under the rear bumper (not wheels). I wasn't able to move at all (pain and shock). The driver then was driving off so I at least tried to take a photo of the number plate but they did call for the police and ambulance. I managed to crawl to the gutter to get off the road and the ambulance officers offered me pain killers.”
[9] Insurer’s final bundle page 21, AD3 page 44.
The claimant described his injuries as follows:
“I have exacerbated my left knee problem - it was excruciating after being hit. For months I’d been swimming and doing weights / band-work and I feel like I'm back to before that stage.
-       my right side was generally sore, particularly back and arm
-       I had grazing on my right hand which has cleared with aloe vera ointment
-       my right shoulder has intense pain
-       I have a sharp pain in back near my shoulder
-       I have a limited range of motion in my right arm
-       I realised afterwards that part of my tooth had been knocked out - which was having treatment.”
The claimant says that ambulance personnel arrived but that he was not taken to hospital. He discloses a left meniscus (knee) injury in October 2017 and root canal therapy in December 2017.
The claimant has provided a statement dated 11 February 2022[10] relating to his application to make a late claim for damages. He says that he injured his left knee getting into a car at work in October 2017 and that he was having physiotherapy and was on crutches at the time of the accident.
[10] Page 50 of the insurer’s final bundle.
Mr Russell says he was employed full time with the CSIRO in a sedentary job. The claimant says before the accident he did the majority of the household work doing most of the cooking and cleaning. He also says he played golf every two weeks, went scuba diving once a month and regularly went out with friends.
The claimant details his treatment including physiotherapy and hydrotherapy.
Mr Russell says he became more reliant on his partner as he felt it difficult to use crutches with his sore shoulder. He says his partner left him and things became harder.
Mr Russell said he returned to work on a part time basis in June 2018 and then returned full time in March 2020 before reducing his hours in October 2021 because he could not cope. Mr Russell says he continues to use crutches.

Insurance documents

Rehabilitation and return to work reports and records

Allied Health Solutions provided a report to the insurer dated 9 July 2018.[11] The author of the report, Ms Su took a history of the insured vehicle suddenly reversing hitting the claimant’s crutch “causing him to lose his balance resulting in his right shoulder being dragged forward and then his left knee being further aggravated.”
[11] Page 84 of the claimant’s bundle.
Allied Health Solutions were engaged to provide rehabilitation support and improve the claimant’s functioning and encourage a return to his pre-accident work duties. After three months of exercise intervention there was some improvement, but the claimant still had pain and restriction.[12]
[12] Page 138 of the claimant’s bundle.

BRS Consulting were also engaged by the insurer to provide rehabilitation and return to work support. They had a history of the previous left knee injury. The claimant gave a report of the injury saying he was hit on the right side of his body and fell forward onto his outstretched arm injuring his right shoulder, right hip and right leg aggravating his left knee pain. There is also a history of the claimant slipping over on a ramp at the hydrotherapy pool twisting his left knee and hitting his right shoulder.
Keystone Professionals were also involved in the claimant’s return to pre-injury hours and duties first being engaged in March 2019.[13]
[13] Pages 159, 179 and 308 of the claimant’s bundle

Allied Health requests

Ms Liang of GEM Physiotherapy Australia became involved in the claimant’s treatment in May 2018, the claimant having been referred to her. She has made a number of requests for physiotherapy treatment in Allied Health Recovery Requests (AHRR) as follows:
(a)    on 30 May 2018 she had conducted two sessions and provided a “diagnosis” of painful and restricted right shoulder range of motion, painful and restricted left knee range of motion and painful and restricted lumbar spine range of motion. She noted active flexion of the right shoulder was 85 degrees and abduction was 75 degrees with complaints of clicking (crepitus) in the shoulder. The assistance he could flex to 130 degrees. The lumbar spine was said to be “getting better since the accident but flexion was limited”;
(b)    on 20 June 2018 she had conducted six sessions and the claimant’s active range of motion had improved to 170 degrees but abduction remained at 75 degrees and there was clicking;
(c)    on 22 August 2018 after 15 sessions, Ms Liang noted the same level of motion in the shoulder as before, and improvement in grip strength. The knee had a full range of motion and the lumbar spine pain was described as “slight discomfort” but there remained some restriction of motion;
(d)     on 31 October 2018, Ms Liang records “deteriorated pain and restricted R shoulder ROM.” Active flexion was limited to 60 degrees and abduction to 45 degrees and there was high level of pain reported in the right hip. The left knee had a full range of motion and improved left knee strength. Ms Liang records the claimant does not use walking aids in the home however was more confident walking outside while using them. He reported 70-80% recovery. In terms of the back, she notes “reduced core muscle strength” with not much discomfort “unless twisting it when putting on pants”;
(e)    by 5 December 2018 Ms Liang had provided 31 sessions of physiotherapy and the same progress in the left knee and lower back were recorded. In terms of the right shoulder, she notes “improved painful and restricted” shoulder motion with flexion at 100 degrees and abduction at 45 degrees;
(f)    a further requested was made on 23 January 2019 and similar findings were recorded in the right shoulder and left knee. The claimant reported he was not confident standing with his left knee and had a full range of lumbar spine motion with “only slight pain with L rotation in the lower back”, and
(g)    the seventh and final request for physiotherapy was dated 27 February 2019. The right shoulder motion had improved to 150 degrees and abduction to 85 degrees. The left knee was said to have improved in strength and balance. Similar findings were made about the lumbar spine. She notes “I believe being obese is not in the favour of any kind of knee injuries recovery and that was one of the reasons that we would like the patient to do the hydrotherapy program”. The claimant had received forty-seven sessions of physiotherapy as at that time.
Ms Liang also requested exercise physiology treatment as follows:
(a)    on 9 July 2018 she referred to the radiology findings in the right shoulder and included the left knee medial meniscus tear and noted “whiplash” as the injuries. The claimant was said to be unable to move his shoulder past 45 degrees on abduction and 85 degrees in flexion;
(b)    on 21 September 2018 a very similar to request to the first was made and an exercise program had been set including hydrotherapy;
(c)    by 4 February 2019 the claimant had undertaken 16 exercise physiology session. The same diagnoses were recorded and a further exercise program was developed and it was noted the claimant’s right shoulder motion was 90 degrees of flexion and 110 degrees for abduction;
(d)    a fifth request was made on 21 July 2019 with shoulder abduction at 90 degrees and flexion at110 degrees. The claimant could walk unassisted for nine metres. Thirty-two sessions had been provided at that time;
(e)    in the request dated 13 November 2019, Ms Liang reported reduced shoulder motion (abduction to 55 degrees and flexion to 105 degrees) and “pain in hips during excessive left hip flexion while load bearing” and the claimant reported sacroiliac joint inflammation on 30 October 2019. Forty sessions of exercise physiology had been provided;
(f)    on 21 January 2020 a further request was mode noting the right shoulder flexion was at 105 degrees and abduction at 65 degrees, but the claimant had pain in the frontal aspect of the shoulder;
(g)    in the request dated 25 March 2020, Ms Liang notes 55 exercise physiology sessions had been provided. The claimant’s shoulder flexion remained at 105 degrees and his abduction had improved to 80 degrees. His independent moving was improving but it was noted “occasional flare ups in knee / hip”;
(h)    9 June 2020 63 sessions, similar findings on shoulder motion. She notes “due to an unrelated medical issue, 5 sessions were conducted via ZOOM telehealth”;
(i)    a request was dated 22 June 2020 noted seventy-nine treatments had been provided to date and similar clinical findings are recorded to previous requests;
(j)    on 28 August 2020 Ms Liang noted that the claimant’s six-minute walk test had improved to 200 metres and his shoulder flexion was 105 degrees and abduction was 80 degrees;
(k)    by 4 December 2018, the claimant was able to walk 250 metres in six-minutes and his exercise regime continued;
(l)    in the thirteenth request dated 22 February 2021, it is reported that the claimant was walking, using a recumbent bike and lifting. It was noted he reported flare ups in his pelvic area (around the sacroiliac joint) and he “frequently reports shoulder muscle discomfort when flexing or abducting his right shoulder above shoulder height”;
(m)     in the 7 April 2021 request, shoulder discomfort had increased after modifying the abduction exercises. Range of motion had not deteriorated and 99 sessions had been provided to date, and
(n)    the final request is dated 24 May 2021. At this time 106 sessions of exercise physiology had been provided. There were similar findings in terms of exercise and range of motion were recorded (80 degrees abduction and 105 degrees of flexion). The claimant complained of “new muscle pain and discomfort” in the front of both shoulders and he was also saying both knees were sore with exercise.
The claimant first requested psychological counselling from the insurer through Mr Ada of Life Psychologists occurred on 18 February 2019.
Mr Ada diagnosed Adjustment disorder with Anxiety. There were five requests made by Mr Ada with a total of twenty-seven counselling sessions provided.

Treating medical records and reports

The ambulance report from the day of the accident[14] reads as follows:
“[On attendance] patient seated in gutter. Nil obvious distress. Driver of vehicle stated she had been reversing out of car space and hadn’t see patient until she heard a bang from the bak of her car. Patient stated that he had hit the car with his single arm forearm support crutch to stop it hitting him. Patient states he then spun around to sit on the kerb. Patient stated he may have execerbated left knee meniscus.
Patient stated he did not want an amblance but agreed to have basic obs taken. Patient accepted paracetamol and ibuprofen for pain relieve but declined further assessment and refused offer of transport. Patient assessed to display competancy and capacity. Nil signs of other injury. Patient denies chest pain, denies C spine tenderness. Patient assisted to his car and given icepack for left knee.”
[14] Page 91 of the insurer’s final bundle.
The typed transcript of dispatches between ambulance personnel record “patient was not hit by a car – moved out of the way and this exacerbated an existing injury. We are assisting patient to his car.”

Treatment notes and reports

The notes from MyHealth Paramatta (MyHealth) provided to the Panel by the parties commence on 6 December 2017[15], 29 May 2020[16] and 28 November 2021.[17]
[15] Page 276 of the claimant’s bundle.
[16] Page 115 of the insurer’s final bundle.
[17] Page 580 of the insurer’s final bundle
Ms Liang, physiotherapist wrote a letter to the claimant’s doctor on 3 November 2017.[18] She notes the claimant first attended on 20 October 2017 with left knee pain after “twisting his leg when getting into a sports car.” He had five treatments and his knee range of motion had improved and he had a “positive McMurray test for medial meniscal pathology” and his gait was improved with the use of a crutch in the right arm. She requested five further physiotherapy treatments.
[18] Page 98 of the insurer’s final bundle.
The claimant attended Dr Yang at MyHealth on 6 December 2017. The note says that the claimant was on a lunch break while working from home and had a fall at Aldi. He says he was pushed and landed on the floor. It is noted he was crying having landed on his right hip first and he had a sore right leg. He was able to get up and was able to walk but it took him a while to get home. On examination he was limping. There was no obvious deformity, swelling or bruising of the right hip knee and shin and the impression of “soft tissue injury” was recorded. A medical certificate was given.
On 23 March 2018 Ms Liang, physiotherapist wrote a further letter to Dr Joshi[19] noting that the claimant’s symptoms of pain had improved, and he wanted to continue treatment. The clamant had a positive McMurray test and altered gait pattern and was using either a crutch or walking stick. His left ankle had a reduced range of motion.
[19] Page 100 in the insurer’s final bundle.
The claimant attended Dr Pham at MyHealth on 11 May 2018 reporting the accident of the day before. He gave a history of crossing behind the car and almost reaching the kerb when the car reversed back and hit him, falling to the ground. He complained of severe pain in his left knee, an abrasion to the right palm of his hand. He had pain in his right shoulder, upper arm and elbow and right sided lower back pain. On examination there was a moderate to large effusion of the left knee, tenderness in the right shoulder and lower back.
There were regular attendances in May and June. The claimant’s knee pain appears to have improved as at 25 June 2018 and was 1-2 out of 10. The right shoulder was the problem at 2 out of 10 and it was said to flare up to 5 out of 10.
On 1 September 2018, the claimant saw Dr Pham again reporting a fall after an episode of his left knee locking but overall, his left knee was better “pain back at baseline but function still not back to baseline.” The claimant’s right shoulder was quite severe at 7-8 out of 10.
On 7 September 2018 the claimant attended Westmead Hospital[20] after slipping and falling at a hydrotherapy pool. He was said to have twisted his left knee and hit his right shoulder on a wall and landed on his buttocks. He was diagnosed with a soft tissue strain on chronic injury.
[20] The discharge summary is at page 101 of the insurer’s final bundle and page 81 of the claimant’s.
The claimant attended MyHealth and saw Dr Cong on 12 September 2018 but there is no mention of the fall at the hydrotherapy pool or the Westmead Hospital attendance. The claimant complained of right shoulder and left knee pain.
Dr Cong provided a referral to Dr Kuo[21] on 16 October 2018 for “right shoulder pain secondary to multiple partial thickness tears following an MVA on 10 May 2018.” It was said Mr Russell had physiotherapy and hydrotherapy with only slight improvement.
[21] Page 120 of the claimant’s bundle.
A referral to Dr Baba in similar terms was given on 19 October 2018 because (according to the notes) Dr Kuo did not do shoulders. Dr Cong had seen the claimant on 19 October 2018 who said whilst walking out of Westfield someone had walked into him and as a result his right arm had been hurting more than usual.
Dr Baba reported to Dr Cong on 29 October 2018[22] following his first consultation. He noted the claimant had reduced range of shoulder motion and strength with right shoulder pain. He thought shoulder surgery was necessary and noted the claimant was still using crutches as he was “recovering from knee surgery.”
[22] Page 122 of the claimant’s bundle.
On 7 December 2018 the claimant attended on Dr Cong having had an incident while having a right shoulder ultrasound “due to the negligence of the sonographer” who had reclined the bed too far and the claimant “nearly fell off and landed on his head” and his need was worse.
Ms Liang, physiotherapist provided a report dated 26 January 2019 to Suncorp[23] saying 40 treatments had been provided for the right shoulder, left knee and lumbar spine. Ms Liang reports that the claimant reported 70% improvement in left knee and right shoulder injuries. The prognosis for a full recovery was affected by the claimant’s psychological issues including the claimant’s perception of pain and his energy levels.
[23] Page 106 of the insurer’s final bundle.
Ms Liang had seen Mr Russell the day after the car accident and says, “I do not think the MVA has exacerbated the L knee injuries” but says she thinks it delayed the left knee recovery. She cites as an example that the claimant found it difficult to get in and out of the pool due to his right shoulder injury.
In a similar letter to Dr Cong dated 31 January 2019[24] Ms Liang said the claimant’s shoulder range of motion had improved from 100 degrees to 140 degrees. Abduction had improved from 45 to 75 degrees.
[24] Page 141 of the claimant’s bundle.
She also said:
“To me, it seems the patient has low tolerance to pain since the beginning and I actually suggested him to see a psychologist as early in 2017 when we first met. All in all, in my opinion a pain management program and a psychologist appointment might be beneficial for the patient now.”
In a letter to Dr Cong dated 15 April 2019,[25] Dr Baba noted slow progress but the range of motion and strength was improving. The claimant was encouraged to continue physiotherapy.
[25] Page 164 of the claimant’s bundle.
In a further letter to Dr Cong dated 22 July 2019[26] Dr Baba referred to a “recent injury where has a complete tear of his biceps tendon.” The claimant was again advised that surgery was likely and he was to be reviewed in three months.
[26] Page 178 of the claimant’s bundle.
On 10 February 2020, Dr Baba wrote to Dr Cong[27] describing a long and frustrating conversation with claimant. The claimant had expressed dissatisfaction with how his shoulder was progressing and was advised that surgery would help. The claimant was said to have “a lot of anxiety about surgery.”
[27] Page 204 of the claimant’s bundle.
Dr Uddin provided a report to the insurer.[28] He says he has been the claimant’s treating GP since February 2020 and had reviewed the notes which record the claimant having been seen in October 2017 for left knee pain and that he was using crutches before the car accident. He says, “I believe Mr Russell is close to pre-accident levels although the last couple of months of his treatment have been impacted and hampered by Covid lockdowns”. It was suggested Mr Russell required further input from an exercise physiologist for a further six months. He expressed the view that the claimant’s “right shoulder injury is currently manageable although there is still the option of pursuing surgery”. He thought the claimant was able to manage independently with most activities of daily living but does require some services including home cleaning and home delivery of heavier groceries.
[28] Page 218 of the claimant’s bundle.
On 17 June 2020, Dr Uddin of MyHealth records the claimant’s right shoulder pain has been aggravated recently which the claimant felt was due to mobilising with his crutches more.
Mr Ada, psychologist reported to the insurer on 26 March 2021[29] diagnosing an adjustment disorder with anxiety.
[29] Page 250 of the claimant’s bundle.

Radiology

There is a left knee X-ray[30] from 13 October 2017 noting “post injury left knee pain”. There was mild joint space loss but no fracture, dislocation or effusion.
[30] Page 97 of the insurer’s final bundle.
The claimant had a right shoulder ultrasound on 18 May 2018.[31] The claimant gave a history to the radiologist of being hit by a car three days before. The findings were:
(a)    biceps tendon partial tear;
(b)    supraspinatus and subscapularis tendinopathy with supraspinatus partied side articular-sided tear and possibly tiny subscapularis avulsion;
(c)    subdeltoid / subacromial bursitis, and
(d)    “given the clinical setting of recent trauma, the tears could be either acute or chronic”.
[31] Page 69 of the claimant’s bundle.
An MRI of the left knee dated 23 March 2018[32] suggesting early osteoarthritis and a “complex tear to the body and posterior horn of the medial meniscus” with minor joint effusion.
[32] Page 99 of the insurer’s final bundle.
A right shoulder MRI was done on 12 October 2018[33] due to a history of pain from a car accident with “maximal pain over right deltoid.” Moderate to severe supraspinatus tendinosis with a partial tear. Infraspinatus mild to moderate generalised tendinosis with low grade partial thickness tear. Moderate sub-acromial, sub-deltoid bursitis and near complete tear of the long head of the biceps tendon.
[33] Page 104 of the insurer’s final bundle and page 118 of the claimant’s.
A progress MRI of the right shoulder was done on 12 July 2019[34] and a comparison made with the previous scan. It showed a slightly larger supraspinatus tear. Bursal surface partial thickness tear and low grade articular surface tear of the infraspinatus, mild subscapularis tendinosis, no rotator cuff atrophy and near complete rupture of the long head of the biceps tendon. There was degenerative change without tear of the superior labrum and low grade subdeltoid bursitis with no glenohumeral joint effusion.
[34] Page 171 of the claimant’s bundle
A right shoulder MRI was undertaken on 2 November 2021[35] this compared previous study and says that the supraspinatus tear is similar to the previous scan but there has been an improvement in the adjacent tendinopathy. The infraspinatus tendinopathy was “minimal”. There was moderate to advance AC joint degenerative changes with a little more fluid in the bursa and minor glenohumeral joint effusion present.

Medico-legal reports

[35] Page 109 of the insurer’s final bundle.

Dr Rimmer – insurer

The insurer obtained a report from Dr Rimmer, orthopaedic surgeon dated 7 October 2020.[36]
[36] Page 62 of the insurer’s final bundle.
Dr Rimmer has a history of the claimant twisting his left knee in an incident at work. He saw his GP, investigations were performed and Mr Russell has been using crutches ever since. Dr Rimmer notes the claimant has not been referred to a knee specialist.
Dr Rimmer has a history from the claimant of him crossing a road using crutches and standing behind a parked car which then reversed into him knocking him to the ground and causing injury to the right shoulder and lumbar spine. Ambulance attended but the claimant was assisted into his own car and drove home. He went to his GP the next day and was referred to Dr Baba and shoulder surgery was recommended.
Dr Rimmer has a history of the claimant falling at the hydrotherapy pool in September 2018 following which the claimant was taken to Westmead Hospital.

The claimant only complained of injury to his right shoulder and lumbar spine.
The claimant was noted to be morbidly obese at 177kg. The claimant was described as being “anxious” and “extremely unstable on crutches” which made the clinical examination “difficult to impossible.”
On examination, Dr Rimmer records:
(a)    cervical spine – normal;
(b)    right shoulder – not tender, no evidence of wasting, reduced range of motion (see appendix A) producing pain. There was a negative impingement test. There were no neurological signs of radiculopathy, and
(c)    left knee – he could not get up on the examination couch and the examination was concluded.
The claimant had no investigations of the lumbar spine but has had investigations of his right shoulder which Dr Rimmer thought showed degenerative tears.
Dr Rimmer assessed the right shoulder impairment at 7% WPI. Despite being unable to examine the spine, Dr Rimmer assessed the impairment of it at 0% (DRE category I).

Dr Khan – claimant

The claimant was seen by Dr Khan on 8 June 2021.[37] He had a limited number of records before him. Dr Khan has a history of the claimant being hit on his right side, knocking him to the ground and “he ended up under the car” falling on his outstretched right arm.
[37] His report is at page 264 of the claimant’s bundle.
The claimant reported injuries to his back, right shoulder, right hip, aggravation of the left knee injury, “aggravation of his tooth” and psychological injuries.
Dr Khan has a history of the claimant going to Westmead Hospital and then seeing his GP at Westfield Shopping Centre in Parramatta. The first part of this history is incorrect according to the records before the Panel.
The claimant reported constant pain in his right shoulder, no symptoms in his left shoulder and arm. He has been told he has “tennis elbow”, he has pains in the lower back and right hip (at times). His left knee is constantly sore and is right knee is now getting sore as he puts more weight on it. He has lost a tooth and has been seeing a psychologist.
The claimant was said to be cooperative and used his left arm to remove his clothing. He had a near normal left shoulder and severely restricted right shoulder motion.
Lumbar spine movement was restricted but no neurological signs were reported in the lower limb and the hips were normal. The left knee had restricted range of motion.
His WPI assessment was:
(a)    lumbar spine – 0%;
(b)    right shoulder – 13%;
(c)    left knee – 4%, and
(d)    right hip – 0%.

Other assessments

The Panel has not been advised of any other assessments in the claim.

RE-EXAMINATION FINDINGS

Mr Russell attended an examination on 13 July 2023 with Medical Assessor Berry.
Mr Russell is now 58 years of age and dominantly right-handed. He has been employed by CSIRO for the last 20 years. He was driven to the appointment by his brother with whom he shares accommodation in Merrylands.

History of the accident and symptoms

Mr Russell sustained injuries in a motor vehicle accident on 10 May 2018 which occurred in Wentworthville. He told Medical Assessor Berry that he had parked his car near the post office to visit a bakery. After leaving the baker he was crossing Dunmore Street and was two thirds of the way across the street when a car proceeding down Dunmore Street suddenly reversed. He saw that the car was coming towards him, and he turned to face the car and threw his arms up which then hit the rear windscreen and he was thrown to the ground landing on his right side. He could not remember whether his right arm was stretched out or flexed at the elbow.
While he was not knocked unconscious, his memories of events thereafter were blurred. He recalls that ambulance attended and when he stated that he could not afford ambulance transport, the ambulance officers treated him with analgesia and ice and assisted him back to his vehicle and he was able to drive home to his unit which was close by.
Mr Russell said that after the accident he became aware of pain in his right shoulder, worse pain in his left knee and he also had right leg and buttock pain which subsided within a week. He recalled that he had six weeks away from work and then he made a graduated return to work. He is now working seven hours a day and he indicated that he is working from his home and goes into the office approximately once a month.

Current situation

Mr Russell said he was unable to attend to his own housekeeping and he has therefore moved into a unit with his brother. The unit is quite small and he does not use a crutch preferring to use a walking stick on the left side while moving around the apartment.
He said that using the crutch aggravates his right shoulder pain. Apart from pain and limitation of shoulder movement, his left knee remains unchanged (from before the accident) and he does not have any pain in the right hip area.

Current treatment

Mr Russell says he takes Panadeine Forte, Voltaren and Nexium.

Past history

Mr Russell told Medical Assessor Berry that he first hurt his left knee when he and his boss were at the Melbourne CSIRO and the boss hired a car which had bucket seats. He recalls that as he tried to get into the bucket seat, he injured his left knee and on returning to Sydney he attended a physiotherapist. He was given two Canadian crutches but found that using the left one was awkward when he tried to reach out to hold anything and so he continued with a Canadian crutch on the right side and a walking stick on the left side. His major complaint from this left knee injury was not so much pain but a giving way of the left leg and this is why he has used the walking stick and crutch to stabilise himself since that incident.
He has not seen an orthopaedic surgeon for his left knee injury and he has not had surgery to his left knee.
Mr Russell told Medical Assessor Berry that his knee had settled since the motor accident in terms of pain, but he still has the feeling of instability which he had before his motor accident.
Mr Russell remembered the injury which occurred in Aldi. He says this happened in December 2017 (before the motor accident). He was about to pay for his groceries when somebody brushed past him. He lost his balance and fell to the ground injuring his right buttock and right leg. He said the reported history in his GP’s notes was not consistent with what he remembered. He did not recall injuring his right shoulder in that incident.
He also told Dr Berry about another incident in September 2018 when he was at hydrotherapy (for his knee) and again somebody brushed past him, he lost his balance and slid down a wall. He said his feet did not slip and he did not fall. He apparently had difficulty getting to his feet and was assisted up and taken to hospital for observation and then discharged. He told Medical Assessor Berry that he was not aware of any injuries arising from that incident, except for his continued inability to stand unassisted. He did not recall hitting his right shoulder on the wall.

General health

Mr Russell said he was not aware of any specific health issues.

CLINICAL EXAMINATION

Mr Russell presented as an obese man who was 177cm in height and 128kg in weight (this gives a body mass index of 40.9). He walked into the rooms with a Canadian crutch on the right side and a walking stick on the left side. His gait was antalgic but with no specific limp.
Mr Russell was unable to get on the examination couch and he indicated that other doctors he attends have adjustable examination couches. However, the examination couch at Medical Assessor Berry’s rooms has a fixed height. While there was a stepping stool available to assist claimant’s getting on and off the examination couch, because of his poor mobility, Mr Russell was unable to use it. When his crutch and walking stick were taken away, Mr Russell was very unsteady on his feet.
Mr Russell sat in a chair for the remainder of the examination and the examination, while limited, was able to be completed satisfactorily.

Cervical spine

Examination of the cervical spine revealed no tenderness to palpation, no muscle spasm and no alteration of spinal contour.
There was a full range of left and right rotation, flexion and extension and left and right lateral flexion.

Upper extremities

Mr Russell was not able to remove his clothing. While at previous examinations he used his left arm to undress, Mr Russell would not do so for Medical Assessor Berry.
With his clothes on and seated, Mr Russell demonstrated a full range of movement at the left shoulder, elbow and wrist.
On the right side, palpation of the shoulder revealed tenderness over the anterior aspect. He was unable to lift his right arm without assistance (active movement) from his left arm and even with assistance (passive movement) he demonstrated only 90 degrees of forward flexion and 60 degrees of abduction measured with a goniometer on three repetitions. Mr Russell would not attempt extension, adduction or internal and external rotation.
Reflexes in both arms were tested and found to be intact. There was no muscle wasting evident in the shoulder girdle or in the forearm and the upper arm with equal measurements obtained above and below the elbow. There was no altered sensation on testing from the shoulders to the fingers.

Lumbar spine

With the claimant standing, he was found to be tender in the right buttock. He told Medical Assessor Berry that he had been diagnosed with an injury to the sacroiliac joint. The area of discomfort was clarified with him, and he indicated an area of the buttock and not over the sacroiliac joint.
Mr Russell demonstrated half the normal range of motion in the plane of flexion and extension and in both left and right rotation.
He told Medical Assessor Berry that no one else who had examined him before had asked him to stand up and demonstrate his back movements.

Lower extremities

With the claimant sitting he was noted to have 62cm circumference in both thighs measured 10cm above the patella and 44cm circumference in the calves measured 10cm below the patella.
On the right side, the claimant demonstrated a full range of flexion and extension of the knee (0-130 degrees) and on the left side, the claimant demonstrated full extension but flexion to only 120 degrees. The claimant had no sensory changes in his lower extremities.
Straight leg raising tests and reflex testing could not be done as the claimant could not be placed in a suitable position.
When the claimant attempted to stand, he used the walking stick on the left side and put his weight on it. The right crutch appeared to be used for stability purposes when mobilizing.

CONSISTENCY OF PRESENTATION

Medical Assessor Berry noted that Mr Russell had shown a much greater range of movement in the right shoulder when examined by other doctors for example he was able to dress and undress and demonstrate all movements in the shoulder.
This was put to Mr Russell, and he was asked to comment. He explained the variation and said that his range of movement varied with his level of activity and discomfort.

WHAT INJURIES DID THE CLAIMANT SUSTAIN IN THE ACCIDENT?

While the Panel considers the dispatch notes from the ambulance cast doubt on the claimant’s body being hit by the insured vehicle, the Panel is satisfied based on the contemporaneous records and the claimant’s own history that he fell which may have been as a result of the vehicle hitting him or his crutch being hit by the vehicle or him losing his balance as the insured vehicle was reversing towards him.
The Panel accepts that any of these mechanisms of accident could have led to the claimant sustaining injury as alleged.
The areas of the body referred for assessment were:
(a)    right hip;
(b)    left knee;
(c)    right shoulder, and
(d)    lumbar spine.
The Panel will consider each of these in turn.

Right hip

The claimant said that whilst he injured his right leg and right buttock in the accident, this injury settled within a week. He denied any right hip pain at the examination with Medical Assessor Wijetunga and with Medical Assessor Berry. Mr Russell says he has a sacroiliac joint injury. The claimant did not include a right hip, buttock or sacroiliac joint injury in his claim form.
The GP notes record a history of the claimant landing on his right hip after his fall in Aldi and Westmead Hospital has a record of him falling onto his buttocks after the incident at the hydrotherapy pool.
The Panel is not satisfied, on the basis of the documentation and Mr Russell’s history at the re-examination that he sustained any right hip injury on 10 May 2018.

Left knee

The claimant complained to ambulance personnel at the scene of the accident that he had knee pain. In his claim form he said he had “exacerbated my left knee problem”. Ms Liang said she did not think the accident exacerbated the left knee injury but did delay the claimant’s recovery. There is a regular thread of complaints of left knee pain in the GP notes with several aggravations with activities (such as travelling to work or pushing a shopping trolley). Dr Uddin wrote in February 2020 that he thought the claimant’s knee was close to pre-accident levels.
The Panel accepts on the basis of the documents referred to above and the claimant’s history to Medical Assessor Berry that Mr Russell did sustain an injury to his knee.
It is the clinical judgment of the medical members of the Panel that the nature of the left knee injury is an aggravation of the pre-existing injury to his left knee in the incident involving the reversing vehicle.

Right shoulder

While the claimant did not report a shoulder injury to ambulance personnel, he did say he was in shock and in pain and he told Medical Assessor Berry he had a poor recall of events. He was clearly concerned at the time about his left knee.
Various treating doctors and examiners have recorded a history of the claimant falling to the ground and falling onto his outstretched hand or arm. Other histories (such as to the ambulance) suggest he put his arm and crutch out to minimise the impact. On either of these mechanisms, it is possible the claimant jarred his shoulder sufficiently to cause injury.
Mr Russell gives a history to Medical Assessor Berry of pain in his shoulder immediately after the accident and continuing pain in the right shoulder with restriction of movement.
Mr Russell attended his GP the day after the accident reporting right shoulder symptoms and he reported a sharp pain in his back near his shoulder in his claim form dated 23 May 2018 as well as pain in his right arm and a limitation of motion in his right arm. The notes of his GP record consistent complaints of right shoulder pain thereafter.
The Panel is therefore satisfied that the claimant did injure his right shoulder in the incident involving GIO’s insured vehicle.
The Panel notes there are no records indicating any right shoulder injury before this accident. The claimant has pathology in the shoulder which could be either traumatic or degenerative. There is no pre-accident radiology of the right shoulder to compare it to. There are no records of right shoulder symptoms in the limited pre-accident medical records of either MyHealth of Ms Liang. The Panel therefore accepts that the injury to the claimant’s shoulder including the tears of the long head of biceps supraspinatus and infraspinatus were caused by the accident.
The claimant has had other falls including the one in September 2018 at the hydrotherapy pool. While the Panel is prepared to accept Mr Russell’s explanation that he did not fall but was knocked off balance and he slid down a wall, the Panel notes he told Medical Assessor Berry that he did not remember hitting his shoulder. The Panel notes the comprehensive note in the discharge summary from Westmead which includes details of a right shoulder examination in emergency. The medical members of the Panel are of the view that the right shoulder would have been examined because the claimant complained of injury to it.
The claimant experienced an aggravation of arm pain in around October 2018 when someone walked into him as he left a shopping centre and there was further aggravation after the incident when he was having an ultrasound. There is possibly a third aggravation or possibly a further injury in July 2019 according to Dr Baba’s report. Finally, the Panel notes that Mr Russell has complained both to Medical Assessor Wijetunga and Medical Assessor Berry that his right shoulder problems are aggravated by the use of the crutch in his right hand. The use of the crutch is related to the pre-accident condition.
The claimant’s pathology in the right shoulder has progressed according to the more recent scans. It is the clinical judgment of the medical members of the Panel that the progression of the tears is likely to have been caused by the further incidents or the claimant’s continued use of a crutch as a result of his pre-accident injury.

Lumbar spine

The claimant attended his GP the day after the accident complaining of right sided lower back pain. On 17 May 2018 this pain was improving but “not back to baseline” and back pain is recorded on 22 May 2018. Pain levels were at 1-2 out of 10 in June 2018.
There is no specific mention of lower back pain in the claim form and no imaging undertaken of the claimant’s lumbar spine. Back pain is not a significant feature in the GP notes.
The first three requests for physiotherapy mention lumbar pain but by the fourth (30 October 2018) the claimant had reported not much lumbar spine discomfort unless twisting when putting on his pants. In the fifth request dated 23 January 2019 he had a full range of lumbar spine movement with only slight pain at left rotation. The lower back is not referred to in any of the requests for exercise physiology treatments.
The Panel accepts that the claimant did injury his lower back in the incident with the GIO insured motor vehicle. It is the clinical judgment of the medical members of the Panel that the nature of the injury is a soft tissue injury which recovered.
There is a record in the GP notes the day after the accident of “right sided lower back pain”. At the examination with Medical Assessor Berry, Mr Russell indicated right buttock pain which he thought was coming from his back. The claimant said he fell at Aldi injuring his right buttock and right leg.
The claimant told Medical Assessor Berry he had been diagnosed with a sacroiliac joint injury. The Panel has not been taken to any GP or specialist report that links any such injury to the accident. The Panel notes that the earliest reference to sacro-iliac joint pain appears to be on 21 December 2020 where it is recorded “having some pain in his right hip located in right SIJ seeing physio, Flora about this.”
The Panel does not accept any right buttock injury or right sacro-iliac joint injury occurred in the motor accident of 10 May 2018.

WHAT IS THE CLAIMANT’S PERMANENT IMPAIRMENT?

Right hip

As the claimant denied any right hip injury and or pain in the right hip, the Panel has found there was no injury to the right hip in the accident. Therefore, as there was no injury, there is no impairment to be assessed.

Left knee

The Panel has found that the claimant sustained in injury to his left knee by way of an aggravation or exacerbation of the pre-existing condition. The claimant and the insurer do not take issue with Medical Assessor Wijetunga’s finding that any left knee injury caused by the accident had recovered. The claimant told Medical Assessor Berry that his left knee has returned to its pre-injury level.
On the basis of the claimant’s history and the records, the Panel is not satisfied that the claimant has any current impairment resulting from the injury caused by the accident.
The claimant’s ability to extend was normal and flexion was limited to 120 degrees (normal is considered to be 130). In accordance with table 41 of the AMA 4 Guides this slight restriction of motion, even if it was caused by the accident would have attracted a 0% WPI.

Lumbar spine

The Guidelines

When assessing the spine, only the DRE method of assessment is allowed (cl 6.111 of the Guidelines). There are five diagnostic related categories and a number of indicia provided (see Table 7 of the Guidelines). In the circumstances of this claim DRE categories I, II and III are relevant.
The first is DRE category I which is selected if there are symptoms which may include pain.
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 of the Guidelines as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE III requires radiculopathy to be present which is defined in cl 6.138 of the Guidelines as:
“… the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and / or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

Application in Mr Russell’s case

Mr Russell reported pain in his back. The Panel has found that he injured his back in the incident, but the claimant’s back movements were reported in January 2019 as normal by his physiotherapist with some pain on left rotation.
There is no lumbar spine imaging brought to the Panel’s attention which might indicate an injury to a spinal nerve root or the aggravation of degenerative changes affecting a nerve or nerve root.
There was no guarding when examined by Dr Berry, no dysmetria and non-verifiable radicular complaints that might follow a specific nerve root distribution.
The Panel notes the apparent resolution or near resolution of back symptoms by January 2019 and the emergence of sacroiliac joint complaints in February 2020. Due to the effluxion of time, the Panel is not satisfied that any sacroiliac joint problems is caused by the accident. The Panel is also not satisfied that any pain in the buttocks “from the back” is caused by the accident.
Of the three signs of radiculopathy that could be objectively tested, there was no atrophy, muscle weakness or sensory loss evidence on examination. While reflexes and sciatic nerve root tension signs could not be measured due to Mr Russell’s inability to get onto the examination couch, the Panel notes that the claimant’s own expert, Dr Khan did not find any of the signs of radiculopathy when he examined the claimant and assessed a DRE category I (0% WPI).
Medical Assessor Wijetunga found dysmetria on the basis of restricted right flexion only. Medical Assessor Berry found flexion and extension reduced but equally so. Medical Assessor Wijetunga found no signs of radiculopathy.
The Panel is of the view that the claimant’s lumbar spine impairment should be assessed as DRE I which attracts a WPI of 0%.

Right shoulder

Guidelines

The assessment of 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 (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
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)
Shoulder impairment is most commonly determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six movements:
(a)    flexion;
(b)    extension;
(c)    abduction;
(d)    adduction;
(e)    internal, and
(f)    external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4.

Application to Mr Russell

The Panel cannot use the range of motion method to assess Mr Russell’s WPI because he would only move his arm in two of the six movements (flexion and abduction) and then only with assistance. The Guidelines permit only active motion and not assisted (passive) motion to be used.
The claimant says his ability to move varies depending on the level of discomfort he is experiencing at the time.
While there is a constancy of his complaints, an examination of the GP records indicates a series of aggravations and exacerbations caused by incidents and a variation in the level of pain with exercise and day to day activities. The Panel notes that the claimant was able to demonstrate the six shoulder movements to three other medical examiners and was able to demonstrate a level of flexion (105 degrees) and abduction (80 degrees) to Ms Liang, physiotherapist.
A comparison table of the various assessments of Mr Russell’s left shoulder motion is provided below.

Right
Shoulder Rimmer
7 October 2020 Khan
8 June 2021 MA Wijetunga
7 September 2022

Flexion 110 80 90

Extension 30 20 30

Abduction 110 40 90

Adduction 30 40 50

Internal rotation 60 20 50

External rotation 80 10 80

UEI impairment 12% 21% 13%

The UEI impairments resulting from these measurements translate to a WPI of 7% (Dr Rimmer), 13% (Dr Khan) and 8% (Medical Assessor Wijetunga).
The Panel is required to make a finding in relation to permanent impairment on the day and therefore cannot adopt any or all or an average or median of the previous impairment assessments.
Because the range of motion method cannot be used, the Panel has therefore had to consider the other permitted methods in Chapter 3. Amputation is clearly not appropriate. Sensory loss of the digits is not appropriate because Mr Russell has no loss of sensation in his fingers or hand. There is no peripheral nerve or vascular disorder apparent in any of the reports from the claimant’s treating doctors or on examination by Medical Assessor Berry.
The remaining option is to consider the method of assessment provided in Part 3.1m of Chapter 3 of AMA 4 which is headed “impairment due to other disorders of the upper extremity.”
The claimant has sustained an injury to his shoulder. He had anterior shoulder tenderness when examined by Medical Assessors Wijetunga and Berry and positive impingement testing by Medical Assessor Wijetunga. He has demonstrated restricted motion recorded in all of the requests for allied health (physiotherapy and exercise physiology) treatment. Clicking (which is likely to be crepitus) was complained of in the right shoulder.
It is the clinical judgment of the medical members of the Panel that the claimant’s right shoulder condition is similar to an acromioclavicular arthropathy causing joint crepitation. Therefore Table 19 on page 59 of AMA 4 shoulder be used.
There has been no shoulder girdle muscle wasting recorded which suggests to the Medical Assessors, inconstant symptoms. When considering the level of impairment from mild, moderate to severe, the medical members are of the view that the claimant has a mild impairment equal to 10% impairment of the joint.
According to Table 18 on page 58 of AMA 4 Guides, the value of the acromioclavicular joint is 25%. The Guides provide that the impairment severity (mild 10%) is then multiplied by the value of the joint (25%) which provides an impairment of 2.5%. This is rounded up to 3%.
While the Panel notes its finding of 3% is below that of other examiners, the Panel cannot apply the range of motion assessment of impairment which those other examiners were able to use.

CONCLUSION

The Panel is of the view the claimant’s WPI assessment of the injuries referred to the Commission is as follows:
(a)    right hip                  no injury caused by the accident;
(b)    left knee                 no impairment caused by the accident;
(c)    lower back             DRE I = 0%, and
(d)    right shoulder         3%.
The claimant has a WPI that is not greater than 10%. It therefore follows that the certificate of Medical Assessor Wijetunga should be revoked, and a fresh certificate issued.

Right Shoulder	Rimmer 7 October 2020	Khan 8 June 2021	MA Wijetunga 7 September 2022
Flexion	110	80	90
Extension	30	20	30
Abduction	110	40	90
Adduction	30	40	50
Internal rotation	60	20	50
External rotation	80	10	80
UEI impairment	12%	21%	13%

[2023] NSWPICMP 359

26 July 2023