AAI Limited t/as Suncorp Insurance v Guedes

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as Suncorp Insurance v Guedes [2023] NSWPICMP 81
CLAIMANT:	Helena Guedes
INSURER:	AAI Ltd t/as Suncorp Insurance
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	10 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a stationary car hit from behind by a semi-trailer; injuries reported to cervical and lumbar spine and left shoulder; Held – original Medical Assessment Certificate set aside; Review Panel issued a new Certificate; claimant’s injuries caused by the motor accident and gave rise to a permanent impairment which is not greater than 10%; soft tissue injury to the cervical and spine; injury to the left shoulder not caused or aggravated by the motor accident and not give rise to a permanent impairment.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of theMotor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Ian Meakin dated 14 April 2021. 2. Certifies that the following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%: • cervical spine, and • lumbar spine. 3. Finds the following injures were not caused by the motor accident and do not give rise to a permanent impairment: left shoulder.

STATEMENT OF REASONS

INTRODUCTION

On 22 August 2014 the claimant, Ms Helena Guedes, was the driver of a car travelling on the M4 motorway between Prospect Road and Cumberland Highway. Her car was struck from behind by a semi-trailer which pushed her car into the car in front.[1]
[1] Insurer bundle AD 1, A 5 p 34.
Ms Guedes was taken by ambulance to Westmead Hospital. She could not recall what treatment occurred. She went to see her general practitioner (GP) a few days after the accident. The claimant complained of neck and back pain.
On 8 October 2019, the insurer made an application for the assessment of permanent impairment for reported injuries to the cervical spine, lumbar spine and left shoulder.[2]
[2] Insurer bundle AD 1, A 4 p 20.
Medical Assessor Ian Meakin initially determined the dispute by issuing a certificate dated 14 April 2021. The insurer did not receive that certificate until 21 January 2022. The certificate assessed the claimant’s total whole person impairment (WPI) at 15%. The Medical Assessor determined: 5% WPI for the cervical spine, 0% WPI for the lumbar spine and 10% WPI for the left shoulder. [3]
[3] Insurer bundle AD 1, A 3 p 8.
The insurer has lodged an application for review of that certificate with the Personal Injury Commission (the Commission).
A delegate of the President of the Commission determined there was reasonable cause to suspect an error in the certificate of Medical Assessor Ian Meakin dated
14 April 2021.[4] The President has now convened this Panel to review that certificate.

LEGISLATIVE BACKGROUND

[4] Insurer bundle AD 1, A 2 p 6.

General

In this review, Ms Guedes’s claim and her entitlements to compensation are governed by the Motor Accident Compensation Act 1999 (the MAC Act).
The assessment of damages for non-economic loss are provided for in Part 5.3 of the MAC Act. The entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the subject accident.
If there is a dispute about the degree of a claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment, a further medical assessment and the review of medical assessments by a Review Panel.

Permanent impairment assessment

Sub-section 133(2) of the MAC Act requires the assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines). The relevant version of the Guidelines in this case is Version 1 which apply to motor accidents that occurred between
5 October 1999 and 30 November 2017.
Permanent impairment is to be assessed in accordance with the Guidelines which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
In a case involving a pre-existing impairment cl 1.31 of the Guidelines provides that the value of a pre-existing impairment must be calculated and subtracted from the current WPI value, only where there is “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.
In this review, the relevant chapters of the AMA 4 Guides include chapter 3 the assessment of the: cervicothoracic spine, lumbosacral spine and upper limbs.
The assessments of the relevant injuries sustained in the accident are referred to briefly below.

Upper extremity- spinal impairment

Assessment of the spine required consideration of the Guidelines together with chapter 3 of the AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed.
The spine is divided into three regions:
(a)     the cervicothoracic;
(b)     the thoracolumbar, and
(c)     the 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.
There are eight diagnostic related categories and a number of indicia provided.
The first is 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 1.138 of the Guidelines as:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
(1.138.1) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.2) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.3) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.4) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(1.138.3) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

Shoulder impairment

The assessment of upper extremity impairment (UEI) is governed by chapter 3 of the AMA 4 Guides. The upper extremity is divided into a number of regions which are: the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(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 the AMA 4 Guides.
The Guidelines note that if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the Medical Assessor should then use his/her discretion in considering what weight to give other available evidence to determine if an impairment is present. If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.[5]
[5] See Motor Accident Permanent Impairment Guidelines, pages 13 to 14.

ASSESSMENT UNDER REVIEW

Medical Assessor Ian Meakin examined the claimant and issued his certificate dated
4 April 2021.
He was asked to assess the following injuries:
•cervical spine - soft tissue injury; post traumatic stiffness;
•lumbar spine - soft tissue injury; post traumatic stiffness, and
•left upper extremity - shoulder - soft tissue injury; post traumatic stiffness.
Medical Assessor Meakin found that Ms Guedes injured her cervical spine, lumbar spine and left shoulder in a motor vehicle accident on 22 August 2014 in the form of a soft tissue injury. He found continuing symptoms in all three areas with a significant reduction of left shoulder range of motion. He found minimal radiological evidence relating to the spine.
Medical Assessor Meakin found that on examination of the claimant’s cervical spine there is an asymmetrical active loss of range of motion due to pain in the cervical spine with flexion and extension to one-half of normal anticipated range and flexion and lateral flexion and rotation to the right and left to two-thirds of normal range. He found no evidence of palpable or paravertebral muscle spasm or guarding. There was no asymmetrical wasting of the right or left shoulder girdle.
Medical Assessor Meakin found that on examination of the claimant’s thoracic spine that there were no symptoms of discomfort in the thoracic back. He found a symmetrical range of motion in all planes with no evidence of discomfort or palpable or paravertebral muscle spasm or guarding.
Medical Assessor Meakin found that on examination of the claimant’s lumbar spine that there was symmetrical range of motion in all planes referencing flexion and extension and lateral flexion and rotation to the right and left to two-thirds of normal expected range but with no evidence of palpable or paravertebral muscle spasm or guarding. There was pain described in the mid-line low lumbar back.
Medical Assessor Meakin found, regarding the cervical spine and with reference to Table 73 of the AMA 4 Guides, at the time of the assessment the claimant demonstrated a DRE Cervicothoracic Spine impairment Category II - 5% WPI.
Medical Assessor Meakin found, regarding the lumber spine and with reference to Table 72 of the AMA 4 Guides, at the time of the assessment the claimant demonstrated a DRE Lumbosacral Spine impairment Category I - 0% WPI.
Medical Assessor Meakin found, regarding the left shoulder and with reference to Table 3 of the AMA 4 Guides, that at the time of the assessment the claimant demonstrated a 16% UEI which equates to 10% WPI.
Medical Assessor Meakin concluded that the degree of permanent injury impairment caused by the motor accident was a total of 15% WPI.

SUBMISSIONS
Insurer’s submissions

In submissions dated 18 February 2022[6] the insurer submits that Medical Assessor Meakin erred in assigning DRE Category II in respect of the cervical spine. His Certificate contains a lack of proper conclusions and/or reasoning as to how the claimant met the requirements of DRE II. The insurer submits that the Medical Assessor should have found that the claimant’s injuries fell within DRE Category Cervical spine I, attracting 0% WPI.
[6] Insurer bundle AD 1, A 1 pp 1- 5.
Regarding the left shoulder the insurer submits that the Certificate contains a lack of proper conclusions and/ or reasoning in relation to causation relating to the left shoulder and that there is a lack of objective evidence to support such conclusions. The insurer notes that the Westmead Hospital Discharge Summary makes no reference to left shoulder symptoms. The medical certificate of Dr Virginia Figueroa-Tamayo dated 27 July 2017 makes no reference to the left shoulder.
The insurer submits that the first reference to the claimant allegedly suffering an injury to her left shoulder is contained in the report of Dr New dated 3 August 2018 about four years after her car accident.
The insurer submits that the lack of reasoning in the Certificate shows that the Medical Assessor failed to properly consider the question of causation, particularly as there is no contemporaneous medical evidence to support that the claimant sustained a soft tissue injury to her left shoulder as a result of the accident.

Claimant’s submissions

The claimant’s solicitors have not provided any written submissions to the Panel in this Review.
The claimant’s solicitors lodged a bundle of unindexed documents in the Portal with a letter dated 15 June 2020. There were 166 pages of documents including numerous forms, medico-legal reports and extensive treating medical notes and records. The covering letter described the bundle as: Form 2R; Reply to an application for Assessment of a Permanent Impairment. There were no written submissions included in this bundle of documents.
In directions dated 8 June 2022, the panel relevantly directed in direction number two that the claimant (respondent) is by close of business 8 July 2022 to upload to the portal an indexed and paginated bundle of all the documents relied on by the claimant in this Review.
No response was received from the claimant’s solicitors to the Panel’s directions dated 8 June 2022. A case officer at the Commission emailed and telephoned the claimant’s solicitor in July 2022 requesting that the claimant’s solicitor comply with the direction and supply the indexed and paginated bundle of the claimant’s documents. Despite the attempts by the Commission staff to obtain the claimant’s bundle of documents no such documents or submissions have been provided.
Notwithstanding the lack of submissions from the claimant’s solicitors, the Panel has proceeded in this Review on the basis that the claimant’s solicitor opposes the insurer’s application for review and that they submit that the original Medical Assessor’s certificate should be upheld. This position would be consistent with the claimant’s solicitors previously adopted position.

Panel deliberations

The Panel issued directions dated 8 June, 19 July and 14 September 2022. The Panel’s directions concerned the filing of bundles of documents, arranging a medical examination of Ms Guedes and for the production of medical records from Blacktown Hospital.

REVIEW OF THE EVIDENCE
Claim form

In the personal injury claim form dated 27 July 2017,[7] the claimant stated that she sustained the following injuries as a result of the subject accident: “… lower back pain, sharp shorting pain, num [sic] on left leg and feet, num [sic] on both arms during the night while in bed”.[8] There was no reference or notation to any left shoulder pain.

Treating medical evidence
[7] Insurer AD 1
[8] Insurer bundle AD 1, A 5 p 34.

The Panel notes that the claimant’s solicitors and the insurer have included over 400 pages of medical reports and records, GP notes and insurer medical records. The Panel reviewed and considered all of these records in its deliberations. The Panel does not intend to summarise all of these records but will briefly refer to some of the more salient records provided by the claimant and the insurer.
In a report dated 30 August 2013, Josiah Ayling, exercise physiologist, reported to
[9] Insurer bundle AD 1, A 5 p 78.
Dr Virginia Figueroa-Tamayo, about the outcome of the claimant’s physiology exercise program.[9] He noted that the claimant was suffering low back and hip pain, cervical neck and shoulder pain, hypertension and arthritic joint pain. Mr Ayling stated that the exercise sessions conducted by him with the claimant had been beneficial in reducing her neck, shoulder and back pain and eased muscular tightness, increased her neck and shoulder range of movement and increased her ability to perform activities of daily living (ADL).
In a report dated 3 November 2013, Dr Virginia Figueroa-Tamayo, the treating GP for Ms Guedes, noted that the claimant reported and sought treatment for back pain symptoms.[10]
[10] Insurer bundle AD 1, A 7 p 39.
Shortly after the accident, in a report dated 24 August 2014,[11] Dr Figueroa-Tamayo noted that the claimant reported and sought treatment for back pain in the neck and lower back. There are then several other reports of chronic back pain and requests for treatment for back pain from 2014 to 2017.
[11] Insurer bundle AD 1, A 7 p 41.
In a report dated 30 August 2018, Dr Figueroa-Tamayo wrote that the claimant still has tenderness on the lower lumbar spine (L4/5 S1) with decreased range of motion due to pain. She is also tender on the cervical spine and left shoulder with decreased motion secondary to pain.[12]

Medico-legal evidence
[12] Insurer bundle AD 1, R 12 p 230.

A report dated 16 July 2018 was prepared by Dr Graham Vickery, psychiatrist and pain management consultant.[13] Dr Vickery recorded the claimant’s current symptoms as fluctuating back pain radiating into the left leg and foot. Neck pain radiating into the left arm and pins and needles in the left arm. Dr Vickery reported that the claimant’s pain condition is not consistent with the alleged injuries and disabilities as there were pre-existing chronic pain, anxiety, panic attacks, insomnia and depression. Dr Vickery referred to the claimant’s prior incapacitating low back, hip, cervical and shoulder pain as well as arthritic joint pain.
[13] Insurer bundle AD 1, A 7 p 99.
A report dated 8 August 2018 was prepared by Dr Charles New. In this report Dr New stated that the claimant had significant pain and restricted movement in the cervical spine. He also reported that the claimant had tenderness and pain over her left shoulder and restriction of movement. Dr New noted that the claimant showed restricted movement in her lumbar spine.
A report dated 8 August 2018 was prepared by Dr Murray Hyde Page, orthopaedic surgeon, assessing the claimant’s WPI as a result of the motor vehicle accident on
22 August 2014. Dr Hyde Page assessed the claimant with DRE category I cervical spine injury that gives 0% WPI. In the lumbar spine he assessed the claimant with DRE category II lumbar spine injury that gives 5% WPI. Dr Hyde Page found that the claimant had aggravated a pre-existing advanced lumbar spondylitic condition 1/10 of which he attributed to her WPI which still rounds up to 5% WPI. Dr Hyde Page noted that the claimant had some stiffness in her left shoulder but that it has to be taken into account that there is some stiffness in her right shoulder which was not injured in the motor vehicle accident. Dr Hyde Page measured and recorded her left and right shoulder movements. He found 8% UEI in her left shoulder and 5% UEI in her right shoulder. As the right shoulder was not injured, Dr Hyde Page subtracted 5% from the 8% UEI in the left shoulder to give 3% UEI in the left shoulder as a consequence of the motor vehicle accident. With reference to table 3 page 20 this gives 2% WPI. Dr Hyde Page found the overall WPI was 5% WPI in the lumbar spine combined with 2% WPI for the left shoulder and this gives a total of 7% WPI. Dr Hyde Page found that the claimant had now reached maximum medical improvement.
A report dated 7 May 2020 was prepared by Dr Drew Dixon, orthopaedic surgeon.[14]
[14] Claimant’s bundle, p24.
Dr Dixon noted that the claimant reports pain and stiffness in her neck mainly on the left with shoulder brachalgia with left trapezial muscle pain which extends to the scapular region and she reports intermittent paraesthesia in her left hand, mainly at night. On examination over Zoom, found the claimant to have increase stiffness in the cervical and lumbar spine with a reduced range of motion. He also found in the left shoulder active abduction was 70 degrees and flexion 80 degrees, pain on adduction was 20 degrees and external rotation 60 degrees, internal rotation 40 degrees and extension 40 degrees. There was impingement on abduction. The claimant’s shoulder was painful on repetitive testing, particularly around the deltoid and scapular' areas as well as the trapezius.

Dr Dixon’s diagnosis was whiplash injury to the claimant’s neck with post traumatic stiffness with aggravation of C3/4, C4/5 disc osteophyte complexes which are ongoing with left sided cervical facet arthralgia with left shoulder brachalgia with trapezial muscle pain and radicular complaint with intermittent paraesthesia in her left hand, most marked at night. He also found shoulder strain with stiffness and bursitis. He also found low back strain injury with mild tenderness in the lower thoracic spine and tenderness of the lumbar segment with dysmetria and radicular complaint with left sciatica and an annular tear at L4/5 and at L5/S1 disc herniation.
Dr Dixon also assessed the claimant’s WPI.[15] Regarding the cervical spine he found under Table 73, AMA 4 Guides, DRE Category II, 5% WPI. For the stiffness in the left shoulder he found Charts 38, 41 and 44, AMA 4 Guides, 14% UEI which equates to 8% WPI. For the lumbar spine he found under Table 72, AMA 4 Guides, DRE Category II, 5% WPI. Dr Dixon found a total form the Combined Values Chart of 17% WPI.
[15] Claimant’s bundle, p 30.

Radiology and other assessments

There are a number of X-ray and MRI reports which are summarised or referred to in the re-examination report detailed below.
On 5 June 2013 there was a report on a CT scan lumbar spine from Castlereagh Imaging by Dr K Simmons.[16] This reported on minor bulging of the annulus at L4/5 and L5/S1. There was some degenerative changes and scierosis. There were also some small osteophytes around the apophyseal joints at those levels.
[16] Insurer bundle AD 1, A 7 p 81.
In a report dated 6 October 2017 regarding an MRI scan of the claimant’s cervical spine, Dr Lee reported minimal degenerative change features a little accentuated by extension minimal instability C2/3 [17].
[17] Claimant’s bundle, p 58.
In a report dated 17 October 2018 regarding an MRI scan of the claimant’s lumbosacral spine, Dr Lee reported annular tears L4/5 and L3/4 with dynamic manoeuvres and essentially normal static imaging [18].
[18] Claimant’s bundle, p 54.
In a report dated 19 October 2018 regarding an MRI scan of the claimant’s cervical spine, Dr Phillip Herald reported early disc desiccation and no evidence of significant disc lesion or nerve root impingement [19].
[19] Claimant’s bundle, p 52.

RE-EXAMINATION FINDINGS

Ms Helena Guedes attended for re-examination at the Commission’s rooms,
1 Oxford Street, Darlinghurst on 30 August 2022. She was accompanied by Shayna Scholz Macedo, a Portuguese interpreter (NAATI No CPN02B64Z).
In attendance were Medical Assessors Rosenthal and Stubbs.

HISTORY

Ms Guedes recalled being involved in a motor vehicle accident on 22 August 2014.

Pre-accident medical history and relevant personal details

She is a 60 year old female who is originally from Portugal. She came to Australia 30 years ago. She lives with her husband and said she has not worked in Australia. She has three children and 12 grandchildren.
She reported no significant pre-existing conditions prior to the motor vehicle accident apart from minor back pain from a previous motor vehicle accident which occurred about 15 years ago.
She reported only taking occasional Nurofen prior to the accident but she could not recall seeing her GP about pre-existing low back pain and having a scan done. On further questioning, however, she believes she may have had some upper lumbar back pain but now the pain following the accident is in the lower lumbar region. She did not recall having a CT scan of the lumbar spine in June 2014 and that scan was not presented to us.
Ms Guedes is right-handed.

History of the motor accident

The accident occurred on 22 August 2014. She stated she was the driver of a sedan which was struck from behind by a semi-trailer. She said she was pushed into the car in front. She believes the vehicle was struck on the back passenger side when the truck tried to swerve to avoid the collision. They were on the M4. She remembers being able to get out of the car following the accident and she was in shock.
She recalled being taken by ambulance to Westmead Hospital but could not recall what treatment occurred. She was not kept overnight. Subsequently, she went to see her GP a few days after the accident.

History of symptoms and treatment following the motor accident

Because of the length of time that had passed since the accident, she had difficulty recalling the sequence of events and treatment that occurred. The Medical Assessors noted to her that there was an absence of complaints regarding her injuries over the years since the accident in her GP’s records. She claimed that she was treated several times at Blacktown Hospital.
She initially had neck and back pain which was treated and there may have been some hydrotherapy treatment intermittently.
She subsequently came under the care of Dr New and Dr Eftekar. Apparently, it was not until 2017 when she began having scans done of the cervical spine and lumbar spine and there are records of an MRI of the cervical spine from October 2017 and a CT of the lumbar spine from May 2017. Ms Guedes believes she had ongoing pain in her neck, back and left shoulder following the accident.
It was brought to her attention that there was a distinct lack of complaints regarding the left shoulder following the accident and she had no explanation for the lack of records, particularly in regards to her left shoulder. She believed that maybe the left shoulder was not too bad and slowly got worse. The pain was coming from her neck.

Details of any relevant injuries or conditions sustained since the motor accident

There were no injuries or conditions since the motor accident.

Current symptoms

She reports low back pain, a pressure feeling, with left leg pain and numbness and pressure feeling under her left foot. The pain is worse with sitting and has generally deteriorated and is worse since the motor vehicle accident first occurred.
She has left shoulder pain which is constant. She said she cannot drive fast now and is fearful when driving, especially if trucks are around.
She has neck pain which hurts when she coughs or sneezes affecting her lower back. She feels pressure in the left arm and numbness in the left hand with some pressure feeling in the middle fingers of her left hand which comes and goes.

Current and proposed treatment

She is taking medication Esopreze, Lyrica 75mg, Candesartan for high blood pressure, Avanza and Oxycodone when required. She actually took some Oxycodone in the middle of the examination stating she was in a lot of pain.
She is not having any physical treatments at present.

INVESTIGATIONS

MRIs of the cervical spine dated 6 October 2017 and 23 October 2019 were presented.
MRIs of the lumbar spine dated 8 October 2017 and 17 October 2018 and a CT scan of the lumbar spine dated 25 May 2017 were all viewed.
The reports are available within the documentation.
Having reviewed the radiology, the Medical Assessors found no evidence of acute trauma-related changes on the scans.

CLINICAL EXAMINATION
General presentation

Ms Guedes appeared to walk with a normal gait and posture.
She weighed 55.9kg and was 139cm tall.
She changed into an examination gown.
The Panel noted pain behaviours throughout the physical examination when requesting movements. There was a lot of grimacing and crying out. She exclaimed, “Oh my God” a number of times whilst attempting to perform various movements. There were inconsistencies in movements which were brought to her attention. She got emotional and upset during the examination and requested the interpreter provide her with the Oxycodone to take during the examination.

Cervical spine (cervicothoracic)

Examination of her neck revealed no spasm or guarding. She had normal cervical lordosis. She had reduced range of motion of the neck by approximately one-third in all directions which appeared to be self-restricted. There was no evidence of asymmetry of neck movement. Throughout the movements there was grimacing, grabbing and crying out.
There were no neurological deficits evident in the upper limbs.
Upper arm measurements were 28cm on both sides, 10cm above the olecranon. Forearm measurements were 24cm on the right and 25cm on the left, 10cm below the olecranon.
General testing of power appeared to lack maximal effort. She did complain of pins and needles in her left index finger during the examination although there was no evidence of objective sensory loss.
There was no anatomically localised weakness in the upper limbs. There was no dermatomal sensory loss. Upper limb reflexes were equal and symmetrical.

Thoracic spine (thoracolumbar)

Thoracic spinal movements were reduced by half in all directions. There was no tenderness, muscle spasm or guarding in the thoracic spine.

Lumbar spine (lumbosacral)

In the lumbar spine she had normal lumbar lordosis. There was generalised tenderness but no spasm or guarding. All lumbar movements were self-restricted to half in all directions including flexion, extension, lateral flexion and rotation. Again, grimacing, grabbing and crying out occurred during the movements.
She was able to walk on her toes but claimed it was painful to walk on her heels. She did manage to do a half squat.
In the sitting position, straight leg raise was normal to 90°.
Her lower limb reflexes were normal. There was no anatomically localised muscle weakness and no dermatomal sensory changes in the lower limbs although she did complain of numbness around the left big toe.
Thigh measurements were 45cm on both sides, 10cm above the superior patellar pole. Calf measurements were 33cm on both sides, 10cm below the inferior patellar pole.
She had a full range of hip, knee and ankle movements.

Upper extremity- shoulders

At the shoulders, she was tender in the left biceps groove but there was no other significant external abnormality.
Range of motion of the left shoulder particularly was self-restricted and it was difficult to assess any accurate goniometer movements although approximate movements are recorded in the table below. All movements lacked effort and were self-restricted. The inconsistency was brought to her attention and she just said that it was painful to move.
Maximum ranges of motion measured by a goniometer are as follows:

Shoulder Movement	Right	Right UEI	Left	Left UEI
Abduction	150°	2%	50°	6%
Flexion	160°	2%	80°	7%
Extension	40°	1%	20°	2%
Adduction	40°	0%	20°	1%
External rotation	80°	0%	30°	1%
Internal rotation	60°	2%	30°	4%
Total UEI	7%	21%

The figures included are the percentage UEI for each movement. Impairments in the same joint are added. The right side has a 7% UEI. The left side has a 21% UEI. The right shoulder has a less than normal range of motion but there is no history of injury or complaint. Clause 1.51 provides that if the one shoulder has a less than normal range then this is deducted side. This leaves a net impairment of 14% which table 6.3 equates to an 8% WPI.

The Panel notes that the Guidelines provide that if the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.
Clauses 1.40 and 1.41 address the issue of consistency. The Medical Assessors found an absence of muscle wasting and the lack of effort. The Medical Assessors considered cls 1.50 – 1.50.5 and noted that this allows the examiner to use discretion where he/she feels that goniometer measurements are invalid. They would substantially reduce the estimated impairment for the left shoulder but note in the circumstances no deduction can be made for the uninjured shoulder – an appropriate analogy would be table 19 with mild inconsistent crepitus during range of movement a 10% UEI giving impairment 6% WPI.
There was no obvious muscle wasting around either shoulder girdle. Impingement was not possible to assess due to the pain behaviours.

OPINION

In regards to the listed injuries, the Medical Assessors’ opinion is that the cervical spine was DRE category I and the lumbar spine was DRE category I.
In regards to the left shoulder, the Medical Assessors’ opinion is that any injury was not caused or aggravated by the motor accident. The Medical Assessors’ opinion is that the reported left shoulder injury is not consistent with the mechanism of injury, there are no contemporaneous records, the alleged injury is first mentioned some years after the accident and radiological findings are consistent with age related degeneration. In addition the examination of the claimant was not conducive to assessing impairment of the left shoulder by range of motion.
The claimant stated she attended Blacktown Hospital rather than her GP a number of times following the accident. The Panel requested that the insurer obtain the medical records of Blacktown Hospital to find any evidence to support the claimant’s account about her reported injury to her left shoulder.
The Panel issued a Direction for Production addressed to Blacktown Hospital. The Blacktown Hospital records were provided to the Panel after the re-examination had been completed, AD 7. The Panel has reviewed the Blacktown Hospital records. These records reveal that the claimant presented to the hospital on 21 October 2019 with neck and back pain radiating to left arm – LUL weakness found on examination. She also presented on 11 November 2019 with shoulder pain radiating to her back and left sided lower chest pain – no left shoulder injury diagnosed.
After reviewing the Blacktown Hospital records there is no contemporaneous evidence to support or show evidence of reporting of a left shoulder injury to Blacktown Hospital complaining about the 2014 motor vehicle accident. As a result of this review of the Blacktown Hospital records, the Panel’s previous opinion about the claimant’s left shoulder complaint has not changed.

DIAGNOSIS AND CAUSATION

Ms Guedes has a past history of chronic low back pain prior to the subject accident.
She recalls pain radiating from her back and arms but no specific local left shoulder pain prior to the accident. There had been imaging of the left shoulder with prior ultrasound images reportedly demonstrating a tear of the supraspinatus tendon attachment on ultrasound examination. The review of the Bankstown Hospital records showed that visits to the hospital subsequent to the accident were not for left shoulder symptoms.
There is no record of the range of left shoulder motion in the medical file prior to the subject accident.
In the subject accident, her vehicle was struck from behind. She recalls a severe impact with damage to the rear of the vehicle with increased pain in her lower back aggravating the pre-existing conditions following the subject accident.
There is early documentation of lower back pain radiating to the right leg recorded by her GP. Back pain is recorded in the medical record, as well as a progression of symptoms at the left shoulder but neither condition generated specialist referral for a period of three and five years after the motor vehicle accident
Diagnoses related to the subject motor vehicle accident are as follows:
·        cervical spine soft tissue injury, aggravation of mild underlying multi-level degenerative change (cervical spondylosis);
·        lumbar spine: soft tissue injury, aggravation of mild underlying multi-level degenerative change (lumbar spondylosis), and
·        left shoulder: not caused or aggravated by the motor accident.

PERMANENT IMPAIRMENT ASSESSMENT

Permanent impairment is defined in the AMA 4 Guides as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
The Panel finds that the impairment in this case meets the definition of permanency outlined above.

Cervicothoracic spine

The clinical presentation at the time of the Panel’s assessment is consistent with a DRE Cervical Spine Category 1 impairment rating.
In the Panel’s view, the complaints of pressure feeling and numbness in the left hand which comes and goes as reported by the claimant, does not fit the description of non-verifiable radicular complaints as defined in paragraph 1.124 Table 8 of the Guidelines.
The objective clinical criteria required for a diagnosis of cervical radiculopathy in accordance with s 6.138 of the Guidelines are not met.
A 0% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, chapter 3, page 104.
The Panel considered a deduction for the pre-existing condition. A deduction for the pre-existing condition is considered in accordance with the methodology set out in
s 6.31 to 6.33 of the Guidelines as follows:
“The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10, For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
The quality of information in the medical record is insufficient to determine an impairment rating for the pre-existing cervical spine condition above DRE cervicothoracic category 1 impairment, 0% WPI.

Lumbar spine

The clinical presentation at the time of the Panel’s assessment is consistent with a DRE Lumbosacral Spine Category 1 impairment rating.
The clinical findings required for a diagnosis of radiculopathy as set out in s 6.138 of the Guidelines, October 2021, page 112 are not met.
A 0% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, chapter 3, page 102.
The Panel has also considered a deduction for the pre-existing impairment of the lumbosacral spine in accordance with the methodology set out in s 6.31 to 6.33 of the SIRA Guidelines (see above).
The quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the lumbar spine beyond DRE Lumbosacral Spine Category 1 impairment.

Left shoulder

In regards to the left shoulder, the Panel’s opinion is that any injury was not caused or aggravated by the motor accident. The Panel finds that the reported left shoulder injury is not consistent with the mechanism of injury, there are no contemporaneous records of the left shoulder injury, the alleged injury is first mentioned some years after the accident and radiological findings are consistent with age related degeneration.
Despite the Panel’s findings and conclusion that any alleged left shoulder injury was not caused or aggravated by the motor accident, the Medical Assessors did still re-examine and make an assessment of the claimant’s impairment to her left shoulder. For completeness the results of the Panel’s assessment of the claimant’s impairment to the left shoulder is detailed above can be briefly set out as follows.
Impairment of the left shoulder is determined using range of motion methods, using figures 38, 41 and 44 of the AMA 4 Guides, pages 43, 44 and 45 respectively, as set out in the table above.
The Panel found that there is mild constitutional stiffness in the contralateral non-injured right shoulder which attracts a 7% UEI rating using the same methodology.
The Panel considers that it is reasonable to consider and find that the range of motion on the injured side would be the same as that on the non-injured side if not for the subject accident.

The range of motion on the right side is used as a baseline for impairment of motion on the injured left side.
The Panel found a 14% UEI rating of the left shoulder. Using Table 3, of the AMA 4 Guides, page 20, this converts to an 8% WPI rating.
The Panel has also considered a deduction for the pre-existing impairment of left shoulder in accordance with the methodology set out in ss 6.31 to 6.33 of the SIRA Guidelines (see above).
The quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the left shoulder.

CONCLUSION

The Panel is satisfied that the claimant does not have a WPI greater than 10% as a result of the motor accident on 22 August 2014 determined as follows:
· cervicothoracic spine DRE category I - 0%, and
· lumbosacral spine DRE category I - 0%.
The Panel is also satisfied that the claimant’s reported left shoulder injury was not caused or aggravated as a result of the motor accident on 22 August 2014.
As the Panel has come to a decision that is different to Medical Assessor Meakin it follows that his certificate dated 14 April 2021 must be revoked.

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Citations

AAI Limited t/as Suncorp Insurance v Guedes [2023] NSWPICMP 81

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[2023] NSWPICMP 81

10 March 2023