Alvarez v AAI Limited t/as GIO
[2024] NSWPICMP 771
•15 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Alvarez v AAI Limited t/as GIO [2024] NSWPICMP 771 |
CLAIMANT: | Ramon Alvarez |
INSURER: | GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Tania Rogers |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 15 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; assessment of degree of permanent impairment; left shoulder, rotator cuff tear and adhesive capular; aggravation of pre-existing chronic tendinosis and bursitis; medical dispute requiring re-examination; prior injuries including fractured left clavicle and rib fractures; prior surgical procedures; neck stiffness, bilateral shoulder pain; documentation included clinical notes; neurological examination; assessing permanent impairment of the shoulders is by analogy; range of motion; Held – Medical Assessment Certificate revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017 (the Act) 1. The Panel revokes the certificate of Medical Assessor Adam Rapaport dated 13 February 2024 and issues a new certificate that the following injuries caused by the motor vehicle accident give rise to a permanent impairment of 4% and is not greater than 10%.
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STATEMENT OF REASONS
INTRODUCTION
Ramon Alvarez (the claimant) is a 80-year-old man who was injured in a motor vehicle accident on the 30 January 2018. Following the accident the claimant lodged an application for Personal Injury Benefits noting that he sustained injuries including intense pain around the chest, pain to the neck, pain to both shoulders and arms. In 2021 the claimant sought a concession from the insurer that the injuries he sustained in the motor vehicle accident left him with a whole person impairment (WPI) of greater than 10%. GIO declined to make this concession. The claimant sought a review and, following a review the insurer issues a certificate on 2 May 2022 affirming the determination and stating that the claimant did not suffer greater than 10% WPI consequent on the motor vehicle accident. Thereafter the claimant made an application to the Personal Injury Commission (Commission) for an assessment of WPI in respect to his physical injuries. Specifically, the soft tissue injury to the left shoulder with aggravation of pre-existing chronic tendinosis and bursitis.
The claimant was examined by Medical Assessor Adam Rapport on 13 February 2024 who, in a certificate of the same date, determined that the claimant did suffer soft tissue injury to the right and left shoulder and a soft tissue muscular ligament strain to the cervical spine with aggravation of chronic multilevel cervical spondylitis and foraminal stenosis. Additionally, he found the claimant did not suffer rotator cuff tear left shoulder with adhesive capsulitis.
Thereafter the claimant sought a review of this determination, which was considered by Presidents Delegate Melinda Drew who, in a decision dated 22 May 2024 advised that she was satisfied there is reasonable cause to suspect that the medical assessment was incorrect in a material respect primarily on the basis that the Medical Assessor did not provide a pathway of reasoning regarding how he assessed this soft tissue injury had fully recovered and that any residual symptoms and impairment were attributable to the previous traumatic injuries to the left shoulder. It ought to be noted that the claimant had previously major traumatic injuries to his left shoulder in 2012 and 2016.
Directions were issued on 27 May 2024 in respect to the provision of additional material. This material is now before the Panel and has considered it.
Thereafter the Review Panel reconvened on 10 July 2024 to further consider the matter.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant was scheduled to be re-examined on 11 September 2024. This examination was not able to take place and accordingly it was re-scheduled to 4 October 2024.
Mr Alvarez attended the medical suites at the Commission on 4 October 2024 and was unaccompanied. He stated that he arrived at the Commission by train and travelled from the Central Coast.
PRE-ACCIDENT HISTORY
Mr Alvarez is now 80 and lives with his wife whom he has been married to for 50 years. He has three adult independent children. Prior to the accident he was on the age pension. He was born in Spain and migrated to Australia in 1974 and prior to retiring worked at Alcoa.
There was a previous accident in 2012 when he was knocked off his bike by a car and sustained a fractured left clavicle, rib fractures and a fractured 2nd metacarpal. The fractured clavicle was treated by an internal fixation by Dr Bateman on 21 June 2012.
There was another fall from his bike in 2016 when he sustained a rotator cuff tear of his right shoulder which was repaired surgically associated with acromioplasty and resection of the distal clavicle and acromion spurs. This operation by an orthopaedic surgeon, Dr Hutabarat was on 24 November 2016.
Mr Alvarez fell off his bike again in 2016 when he fractured his left clavicle. Dr Hutabarat undertook an arthroscopy of the left shoulder with excision of the distal clavicle and bursectomy on 30 June 2017.
Despite these accidents and surgical repairs, Mr Alvarez stated that he was in good health prior to the motor accident and states that his shoulders were good. He maintained he was riding his bike, going on bushwalks, swimming and paddling a kayak.
HISTORY OF MOTOR ACCIDENT
Mr Alvarez was the sole occupant of the Subaru Forester car when a car approaching from the opposite direction made a sudden right-hand turn in front of him colliding with the right front bumper bar of his car. He was wearing a seatbelt at the time but airbags were not deployed. He states that he initially was very shocked and was helped out of the car. The car was towed away and subsequently repaired. He was taken to Gosford Hospital for assessment.
History of symptoms and treatment following the motor accident
At Gosford Hospital, there was a query about fractured left ribs that were more than likely due to a previous accident. He was discharged after assessment and consulted his general practitioner (GP), Dr Nahir after the weekend and at that time was complaining of pain in both shoulders, his neck, thoracic spine and chest pain. Dr Nahir again referred him to his orthopaedic surgeon Dr Hutabarat.
Dr Hutabarat investigated both shoulders with MRIs and ultrasounds. On 20 July 2018, Dr Hutabarat undertook a right shoulder arthroscopy, acromioplasty and resection of the distal clavicle. On 23 November 2022, he undertook a left shoulder arthroscopy, bursectomy, acromioplasty and resection of an acromion spur. There was a brief period of rehabilitation after this operation but Mr Alvarez considered that this was inadequate to complete his recovery.
There have been no further accidents or injuries sustained since the motor accident in 2018.
CURRENT SYMPTOMS
Mr Alvarez states that he has constant pain in the neck with stiffness and pain in both shoulders but more so on the left which radiated into the upper arms bilaterally. He occasionally gets a tremor in both hands. He considers that this tremor started after the accident.
There was pain radiating down the legs and in particular the calves which wakes him at night. He does not consider that they cramp up. He is able to walk up to 6km but needs occasional rest breaks. He drives short distances but no longer swims or paddles his kayak. He now has a battery-powered bike which he rides regularly for short distances.
CURRENT TREATMENT
Present medication is Lyrica 75mg twice a day, an Endone 5mg at midday or Panadol tablets.
He has had two cortisone injections to the lower lumbar spine which gave no benefit and states that a year ago, there was cortisone injections to his cervical spine twice which also gave no benefit.
At present, the only manual therapy is five physiotherapy treatments a year under Medicare and in his opinion, he would benefit from frequent physiotherapy treatments every fortnight.
No radiological studies were brought by Mr Alvarez to the medical suite.
Summary of documents considered
The documents uploaded and contained in the application and reply have been noted. The Review Panel had also paid particular attention to the notes and records and radiological investigations associated with the surgical procedures the claimant underwent to his shoulders in 2016 and 2017.
Review of documentation
The Review Panel notes that on 30 June 2017 the claimant underwent a left shoulder arthroscopy and subacromial decompression with ostectomy distal clavicle. This procedure was undertaken by Dr Simon Hutabarat. The Review Panel also noted the report of Dr Hutabarat dated 5 April 2018 which noted:
“…the left shoulder appears to have no significant full thickness tear having just tendinosis affecting it.”
He identified a tear of the supraspinatus in the right shoulder following the ultrasound which the claimant underwent. The claimant thereafter underwent a right shoulder arthroscopy, again under the care of Dr Simon Hutabarat on 20 July 2018. He performed a left shoulder arthroscopy, bursectomy and re-section on 23 November 2022.
CLINICAL EXAMINATION
Mr Alvarez walked into the consulting rooms with a slow gait and a stooped posture. His height was 168cm with shoes and weight was 73kg. He sat comfortably during the interview and examination.
Cervical spine
On testing range of movement, there was minimal movement in all directions. Flexion/extension, side bending and rotation were all 25% of expected range with no asymmetry. On palpation there was no guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were of small amplitude but symmetrical with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 27cm on the right and 27.5cm on the left (10cm above the olecranon process) and in the upper forearms 26cm bilaterally (5cm below the olecranon process).
Shoulders
On inspection, no apparent wasting was noted around the shoulders and on passive movement no crepitus was detected. The left clavicle was more prominent with slight deformity compared to the right but was non-tender on palpation there was tenderness over the left acromioclavicular joint and left infraspinatus muscle.
There were several surgical scars with a 5cm vertical anterior scar over the left shoulder and several portal scars. No sutured marks are visible with no significant colour change, no contour defect, no trophic changes, no adherence and no atrophy. Mr Alvarez is barely conscious of these scars.
Active range of movement (ROM) was measured using a goniometer and repeated three times.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
90°/70°/60°
Extension
40°
40°/40°
Adduction
30°
20°
Abduction
90°
80°/90°/60°
Internal Rotation
60°
40°
External Rotation
60°
40°
I stated to Mr Alvarez that there is variable movement on the shoulders of my testing and in comparison, to previous examinations. He stated this was due to pain and says that some days he has better range of movement than others. I explained to him that due to variability in range of movement that another method would be needed to assess impairment. He stated that he understood this but was very annoyed that in his mind, physiotherapy was no longer funded when he considered that he needed further treatment.
CAUSATION and WPI
The Review Panel is to determine impairment of the shoulders and cervical spine. The Review Panel considers that there has been an aggravation of pre-existing soft tissue injury to the left and right shoulders and cervical spine sustained in the subject accident. There would have been a decreased range of movement of both shoulders prior to the accident but there is no apparent recording of shoulder range of movement immediately prior to it.
The treating GP reported a soft tissue injury to both shoulders in his certificate of capacity on 14 February 2018 which is two weeks after the accident. In a consultation with his orthopaedic surgeon, Dr Hutabarat on 8 March 2018, he recorded a decreased range of movement with pain in both shoulders. Initial investigations reported a supraspinatus tear in the right shoulder and no tear in the left. A follow-up MRI reported tears in the left shoulder rotator cuff which were subsequently operated on by Dr Hutabarat.
There were several medico-legal reports. Dr Marsh in 2020 considered that there was an injury to the neck and both shoulders and at that time considered that it was not appropriate to use range of movement but assessed this by analogy to 3% WPI for shoulder.
Dr Rosenthal in a medico-legal report on 29 March 2022 also considered that the most appropriate method of assessing impairment of the shoulders was by analogy and determined that it was appropriate to award 2% WPI for shoulder.
The Review Panel has determined that the most appropriate method of assessing permanent impairment of the shoulders is also by analogy (in consideration of 6.40 and 6.41 of Motor Accident Authority (MAA) Guidelines. Range of movement has been determined to not accurately assess his shoulder due to variability at the time of my examination and in comparison, to previous medical opinions. At the time of the examination there was tenderness over the left acromioclavicular joint and using this joint by analogy in reference to Table 18 of American Medical Association (AMA) 4th edition there is 15% WPI. Table 19 using a mild degree of crepitation which is 10% of the joint impairment. 10% of 15% is 1.5% WPI for each shoulder. Rounded up to 2% WPI bilaterally.
Cervical spine – soft tissue injury
The Review Panel found no dysmetria on testing range of movement but limited symmetrical flexion/extension/sidebending and rotation. There was no guarding on palpation. There are no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. This gives a classification of 0 % WPI using Table 73 of AMA 4th edition.
The total WPI is 4 % WPI.
0
0
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