Antaki-Smith v Youi Pty Limited
[2024] NSWPICMP 796
•27 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Antaki-Smith v Youi Pty Limited [2024] NSWPICMP 796 |
| CLAIMANT: | Darren Antaki-Smith |
| INSURER: | Youi |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Shane Maloney |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 27 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of the certificate and reasons of Medical Assessor (MA) Kuru dated 12 April 2024 of permanent impairment assessment of 8%; claimant involved in an accident on 4 August 2021; motorbike versus car; injury to cervical spine, right shoulder, right wrist and lumbar spine; claimant had a lumbosacral disc protrusion and meralgia paraesthetica of his right thigh; claimant examined on his behalf by Dr Bodell who found a total 19% whole person impairment (WPI); claimant examined on behalf of the insurer by Dr Machart who assessed WPI of 1% for scarring; Held – certificate and reasons of MA Kuru revoked with Panel assessing the claimant at 19% WPI for injuries to his cervical spine, lumbar spine, right shoulder, right wrist and scarring. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Review Panel revokes the certificate of Medical Assessor Kuru dated 12 April 2024. 2. The Review Panel assesses the claimant’s whole person impairment at 19%. |
STATEMENT OF REASONS
INTRODUCTION
Darren Antaki-Smith (the Claimant) seeks a review of the permanent impairment assessment conducted by Medical Assessor Kuru (the Medical Assessor) on 20 February 2024 resulting in a certificate dated 12 April 2024.
The claimant’s submissions go primarily to issues relating to his right wrist. However, the following injuries were referred to the Personal Injury Commission (Commission) for assessment;
(a) cervical spine – injury to the cervical spine;
(b) shoulder – injury to the right shoulder;
(c) wrist – fracture to the right wrist;
(d) lumbar spine – injury to the lower back, and
(e) skin scarring – scarring to the right wrist.
Notwithstanding the limited submissions by the claimant, the Review Panel (Panel) has conducted a review of all injuries referred to the Medical Assessor for assessment of permanent impairment.
The Medical Assessor found the following injuries caused by the accident gave rise to a whole permanent impairment (WPI) of 8%:
(a) cervical spine – injury to the cervical spine;
(b) shoulder – injury to the right shoulder;
(c) wrist – injury to the right wrist including median nerve irritation at the carpal tunnel and ulnar nerve irritation at the elbow (resulting from wrist injury);
(d) lumbar spine – injury to the lower back, and
(e) skin – scarring – scarring to the right wrist.
In the claimant’s submissions, it is said that the Medical Assessor failed to properly assess the claimant to determine whether or not as a result of the accident the claimant had suffered a non-threshold physical injury. This is set out in paragraph 11c herein. The Panel has made no determination about this as Medical Assessor Kuru was not required to make this assessment. The Panel refers to the claimant’s original submissions made to the Commission which only refer to a review of the decision of the insurer going to the claimant’s WPI.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]).The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel is to come to its own conclusion and to take its own history.
The accident
On 4 August 2021, the claimant was riding a motorcycle going to the chemist to get some medication for his daughter. The insured car came through a stop sign causing the claimant to impact his bike with the rear corner of the insured car. The claimant hit the car and rolled over the rear of the windscreen.
He reported a loss of consciousness at the time and was taken by ambulance to John Hunter Hospital (JHH) where he was admitted.
He was diagnosed with a fracture of his right wrist. He also had pain in his right elbow and described his ulnar nerve as being ‘twitchy’. He had pain over his lower pelvis in the front and around the back. He had multiple cuts and abrasions, and he says he cracked his front tooth.
Claimant’s submissions
The claimant seeks a review on the following grounds:
(a) the Medical Assessor failed to obtain a full history and to fully assess the claimant’s injuries.
(b) The Medical Assessor failed to fully consider and assess the claimant in accordance with the American Medical Association Guidelines to the Assessment of Permanent Impairment 4th edition (AMA Guides) and the Motor Accident Guidelines (the Guidelines).
(c) The Medical Assessor failed to properly assesses the claimant to determine whether or not as a result of the accident the claimant has suffered a non- threshold physical injury.
(d) The Medical Assessor failed to provide a clear path of reasoning in determining injury and impairment.
(e) The Medical Assessor failed to correctly record values after performing tests with respect to the right upper extremity.
Regarding the injury to the claimant’s the right upper extremity, the claimant submits that the Medical Assessor has failed to perform a full neurological assessment of the claimant’s injuries with respect to injuries to the ulnar and median nerves based on symptoms recorded at assessment.
The claimant submits that the Medical Assessor has failed to fully assess injury/impairment due to loss of grip strength of the right hand/wrist.
The claimant says that he continues to experience significant loss of grip strength, experiences numbness and tingling in his fingers and sensory loss as result of injuries sustained in accident.
The claimant says that there has been a significant loss of grip strength and significant impact on his daily activities including loss of employment. The claimant says there is no discussion in the Medical Assessor’s certificate about claimant having to cease employment and loss of grip strength.
The claimant says there was no testing performed for loss of grip strength.
The claimant says that in assessing injury and impairment for his right wrist, the Medical Assessor has only referred to the following tables when assessing the claimant’s WPI all the right wrist:
(a) 3/36 Figure 26, and
(b) 3/38 Figure 29.
The claimant submits that Figure 26 only considers impairment due to lack of flexion and extension of wrist- range of motion only.
The claimant submits that Figure 29 only considers impairment due to abnormal radial and ulnar nerve deviations of the wrist joint – range of motion only.
The claimant submits that he presents with a range of symptoms including loss of grip strength, persistent numbness, and sensory loss which has had a significant impact on the claimant.
It submitted the loss of grip strength, sensory loss and numbness in the claimant’s digits present a rateable impairment pursuant to the AMA Guides and the Guidelines.
The claimant submits the claimant in addition to Figure 26 and Figure 29 (referred to above) should have been assessed with the requirements of the AMA Guides with reference to:
(a) Table 11 3/48: Determining Impairment of the Upper Extremity Due to Pain or Sensory Deficit Resulting from Peripheral Nerve Disorders;
(b) Table 15 3/54: Maximum Upper extremity Impairments Due to Unilateral Sensory of Motor Deficits or Combined Deficits of the Major Peripheral Nerves, and
(c) Table 34 3/65: Upper Extremity for Loss of strength impairment.
The claimant submits the above is an overview of the requirements of the AMA Guides when assessing impairment for the right wrist and not a full of summary of the testing required to determine whether or not there is a rateable impairment.
It is submitted by the claimant that the Medical Assessor has failed to obtain a full and comprehensive history of the current injuries and ongoing symptoms and then has failed to assess those symptoms in accordance with the AMA Guides and the Guidelines.
The claimant says that the Medical Assessor, when assessing the right wrist, has assessed the ulnar deviation. The Medical Assessor records the ulnar deviation for the right wrist at 20° which is 2 LUD (loss of ulnar deviation). The claimant says that when combined with radial deviation of 0% it is equivalent to a 2% impairment.
The claimant submits that the Medical Assessor has incorrectly recorded values after performing tests for the ulnar deviation consistent with Figure 29 at page 3/38.
It is submitted by the claimant that when considering paragraphs 6-31 that this is incorrect in a material respect.
The claimant submits that when assessing his right wrist based on his presentation there was a requirement to assess the supination and pronation based on the claimant’s presentation of injuries and symptoms. The claimant submits that the Medical Assessor has failed to do this.
The claimant says that Dr Bodel, in his report, has assessed the claimant consistent with Figure 35 at page 3/41.
The claimant submits that the Medical Assessor has failed to provide reasons why there was no assessment. The claimant submits that this is incorrect in a material respect.
The claimant says that the Medical Assessor has determined that upon review of the MRI there was no fracture. The claimant says that the Medical Assessor reported the following at page 3 paragraph 10 of his certificate:
“His right wrist was placed in a cast and then a splint. I note he had an MRI some three weeks after the accident on 10/09/2021. It demonstrated some bone bruising in the triquetrum and hamate but does not confirm fracture”.
The claimant refers to the John Hunter Discharge Referral which states:
“…He suffered a scaphoid fracture”.
The claimant submits that the Medical Assessor has not ruled out that there was a fracture to the right wrist and has not considered whether or not there were microfractures to the right wrist.
The claimant refers to and relies on Campbeltown City Council v Vegan & Ors [2006] NSWCA 284 when the Court of Appeal said:
“…where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another”
The claimant refers to a report of Dr Machart where at page 6 he says there was:
“Documented contemporaneous evidence of injury to the right wrist, hand and neurological injury and scaphoid fracture. It is not clear whether the bony injury is healed. He was treated by 2 operations. One on each nerve, median and ulnar”.
The claimant refers to a report of Dr Bodel who identifies at page 5 of his report:
“…a fracture of the right wrist”.
The claimant submits the Medical Assessor has failed to determine whether or not there is a non-threshold injury to the right wrist.
The claimant submits that if there was no fracture then the Medical Assessor has failed to provide adequate reasoning supporting his is opinion that there is no fracture in the face of the evidence and counter opinions.
The claimant, in submissions regarding the initial WPI assessment, said that the insurer had failed to consider or accord the appropriate weight to the medico-legal report of Dr Bodel dated 17 July 2023.
The claimant says that the report of Dr Bodel provides a comprehensive assessments of the claimant’s accident-related injuries.
The claimant says that Dr Bodel formed the opinion that the claimant has sustained injuries in the form of:
(a) injury to the cervical spine;
(b) injury to the right shoulder;
(c) fracture to the right wrist;
(d) injury to the lower back, and
(e) scarring.
The claimant says that based on the above diagnosis, Dr Bodel arrived at a combined assessment of 19% WPI as follows:
(a) cervicothoracic spine (Diagnosis-related estimate (DRE) II) – 5% WPI;
(b) lumbosacral spine (DRE II) – 5% WPI;
(c) right upper extremity – 9% WPI, and
(d) scarring – 1% WPI.
The claimant says that in his report, Dr Bodel details the nature of the claimant’s condition, and he documents his observations that the claimant “walks with a mild right sided limp” as well as detecting tenderness at the lumbosacral junction with guarding and reduced range of motion. Further, Dr Bodel noted that the claimant had “impingement in the right shoulder” with restricted range of right shoulder and right wrist movement. He also records that he observed the claimant to have “tenderness in the trapezius muscles at the base of the neck” with “guarding in that area” and reduced range of cervical spine motion.
The claimant submits that the findings of Dr Bodel evidence that the claimant’s level of permanent impairment exceeds the greater than 10% permanent impairment threshold.
The claimant refers to the insurer relying on the report of Dr Machart dated 9 August 2023. The claimant noted that Dr Machart said that there was no contemporaneous evidence of injuries to the cervical spine, lumbar spine and right shoulder. The claimant noted that his lumbar spine injury was documented by the claimant’s general practitioner (GP) in Certificates of Capacity and in the Allied Health Recovery Requests (AHRR) for physiotherapy.
The claimant submits that the findings of Dr Bodel on assessment are indicative of a permanent impairment rating exceeding the 10% threshold.
Insurer’s submissions
The insurer noted that the claimant's complaints about the Medical Assessor’s certificate were limited to his assessment of the claimant's right wrist. The insurer noted that the Medical Assessor found that the injury to the claimant's right wrist resulted in 0% WPI.
The insurer says that the Medical Assessor conducted a full neurological assessment as required by the Guidelines and the AMA Guides.
Regarding the claimant’s submission that the Medical Assessor failed to fully assess impairment due to loss of grip strength, the insurer relies on paragraph 6.67 of the Guidelines which says that "Strength evaluations and Table 34 (pages 64/65, AMA4 Guides) must not be used as they are unreliable indicators of impairment". The Panel notes that this is correct.
The insurer says that the Medical Assessor noted the claimant's subjective complaints of numbness and sensory loss in his fingers but, by clear implication, found no objective signs.
The insurer says that contrary to the claimant's submissions, the Medical Assessor assessed the claimant's sensory loss and numbness. On page 5 of his certificate, the Medical Assessor noted only subjective reports of sensory alteration in the ulnar digits of the right hand with the clear implication that there were no objective signs of sensory changes.
Regarding the claimant’s submission that the Medical Assessor did not assess loss of grip strength, the insurer says that contrary to the claimant’s submissions, the Medical Assessor assessed the claimant’s sensory loss and numbness. On page 5 of his certificate, the Medical Assessor noted only subjective reports of sensory alteration in the ulnar digits of the right hand with the clear implication that there were no objective signs of sensory changes.
The insurer says that the Medical Assessor correctly recorded ulnar deviation at 20°. The insurer says that the Medical Assessor however, also recorded ulnar deviation of the uninjured left wrist at 20°. The insurer referred to paragraph 6.51 of the Guidelines which provides 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”. The insurer submits that the Medical Assessor correctly followed this process correctly found 0% WPI affecting the right wrist.
The insurer also provided its bundle of documents, submissions regarding the initial permanent impairment assessment of the claimant.
By way of overview, the Insurer submits that:
(a) the accident did not cause any injury to the claimant's cervical spine.
(b) The accident did not cause any injury to the claimant's right shoulder.
(c) The accident did not cause any significant injury to the claimant's lumbar spine.
(d) The right wrist injury gives rise to 1% WPI.
(e) The scarring gives rise to 1% WPI.
The insurer denies that the claimant's WPI exceeds 10%.
The insurer submits that the accident did not cause any injury to the claimant's cervical spine for the following reasons:
(a) The claimant did not list his cervical spine in the list of injuries in his Application for Personal Injury Benefits (APIB) dated 10 August 2021.
(b) The JHH Discharge Summary indicates that the claimant specifically denied any cervical pain in the immediate aftermath of the accident.
(c) The insurer has not identified any reference to the claimant's cervical spine in either his AHRR or his Certificates of Fitness (COF). The Insurer has not identified any reference to the claimant's cervical spine in the clinical notes produced by Central Health Alliance.
As such, the insurer says any cervical spine impairment was not caused by the accident.
The insurer submits that the accident did not cause any injury to the claimant's right shoulder for the following reasons:
(a) the claimant did not list his right shoulder in the list of injuries in his APIB dated 10 August 2021.
(b) JHH Discharge Summary does not record any right shoulder pain in the immediate aftermath of the accident.
(c) The insurer has not identified any reference to the claimant's right shoulder in either his AHRRs or his COFs.
(d) The insurer has not identified any reference to the claimant's right shoulder in the clinical notes produced by Central Health Alliance.
As such, any right shoulder impairment was not caused by the accident.
The insurer submits that the accident did not cause any significant injury to the claimant's lumbar spine for the following reasons:
(a) the insurer acknowledges that the claimant mentioned his lower back in his APIB.
(b) JHH Discharge Summary does not record any lumbar spine pain in the immediate aftermath of the accident. (The insurer acknowledges reference to the claimant's lumbar spine in some AHRRs and some COFs.)
(c) The insurer says that it has not identified any reference to specific lumbar spine complaints in the clinical notes produced by Central Health Alliance but acknowledges that the claimant was referred for a lumbar MRI on 24 August 2021.
Given the absence of consistent lumbar spine complaint, the insurer submits that there is no assessable impairment.
The insurer says there is no question that the accident caused a right scaphoid fracture. The insurer submits that Dr Machart has correctly assessed the permanent impairment arising from this injury at 1%.
The insurer submits that Dr Machart has correctly assessed the claimant's scarring at 1% WPI.
The insurer submits that the claimant's accident-related WPI does not exceed 10%.
Medical evidence
Pre-accident medical history
There are no significant pre-accident injuries recorded. A consultation with the treating GP dated 23 June 2021 diagnosed benign prostatic hyperplasia associated with haematuria.
Subsequent treatment post motor vehicle accident
Ambulance report dated 4 August 2021- it was reported no spine tenderness, painful right elbow and right wrist and right hip pain with tingling to the left big toe. No loss of consciousness was recorded.
Police report dated 4 August 2021.– it was reported a failure to stop of a Holden Commodore at a stop sign with a resulting impact with the motor bike. The police report stated that the bike rider had sustained a fractured pelvis and other injuries.
John Hunter Hospital discharge referral Admission 4 August 2021- hcorrejjistory that the claimant was T-boned by a car which travelled through a red light hitting his motorbike. Injuries were to right elbow, right wrist with abrasions right pelvic area with no loss of consciousness and no cervical spine pain. There was decreased sensation over the left great toe. A diagnosis of a scaphoid fracture was made with a follow-up at the hand clinic. An X-ray of the left knee, chest, pelvis and hips, right elbow and forearm reported no abnormalities.
The description of the accident was that he fell over the handlebar and hit his head on the car breaking his helmet. A CT scan was done of the chest and abdomen and pelvis which reported no fractures but a pulmonary contusion in the right upper lobe of his lung.
Radiological studies dated 10 September 2021
MRI right wrist reported bone bruise involving right hamate, triquetral and pisiform bones with no fracture of scaphoid.
MRI right hand reported bone bruise at the proximal Interphalangeal (IP) joint of little finger involving proximal phalangeal head and base of middle phalanx.
MRI lumbar spine reported a very small posterocentral disc protrusion at L5/S1 with some facet joint osteoarthritis on the left at L4/5 bilaterally at L5/S1.
X-ray and ultrasound right shoulder dated 19 December 2023. This reported a small tear at the bursal surface of the supraspinatus tendon with tenderness over the anterior joint line. The x-ray reported acromioclavicular joint osteoarthritis and mild to moderate osteoarthritis of the inferior joint line of the glenohumeral joint.
CT cervical spine dated 19 December 2023. This reported diffuse cervical spondylosis with multilevel degenerative findings most pronounced at C3/4 and C5/6 there may be nerve impingement at these levels.
CT lumbar spine dated 19 December 2023. This reported diffuse lumbar spondylosis more prominent degenerative changes at L5/S1. There could be impingement upon the exiting L5 nerve.
Nerve conduction studies by Dr Katekar dated 22 September 2021 reported mild slowing of median sensory nerve conduction across the right wrist. Normal ulnar studies. Suggesting mild median nerve entrapment in the right carpal tunnel.
Nerve conduction study dated 15 January 2024 by Dr Burton. This reported no evidence of peripheral nerve dysfunction to account for his right upper and right lower limb symptoms.
There are several reports by the treating hand surgeon, Dr Burgess.
On 24 March 2022, Dr Burgess reported no wasting of the small muscles of the hand and a full range of movement but tenderness over the dorsal wrist joint and pisiform bone and first carpometacarpal (CMC) joint. He had a positive Tinel’s sign and Phalen’s test over the right carpal tunnel but negative in the cubital tunnel and Guyon’s canal.
Operation report dated 3 May 2022- there was a right carpal tunnel release endoscopically.
At post-operative follow-up, Dr Burgess reported the development of numbness and tingling in the little finger of his right hand. She attributed this to the cubital tunnel compression which needed a surgical release.
Operation report dated 23 August 2022. This documented a right endoscopic cubital tunnel release.
Follow-up consultation on 7 November 2022 reported an excellent recovery with good grip strength and a resolution of symptoms in his hand.
There is a physiotherapy report dated 26 August 2021. The claimant presented with right wrist pain with pins and needles and weakness along with pain over the right scaphoid region and distal radius. He also had pain down the right leg with reduced sensation in the left groin and weakness in the right leg on exertion and a positive slump test on the right with straight leg raise and 30° on the right and 60° on the left.
The certificate of capacity from the treating GP dated 5 August 2021 reported the injuries as right scaphoid fracture and pelvic soft tissue injury. Follow-up certificates reported right wrist and hand injury and low back injury.
Consultation notes from the treating GP started on 12 August 2021 which recorded the motorbike accident and injury to the right hand/wrist with a report of a radial styloid fracture non-displaced.
Follow-up consultation on 17 August 2021 reported ongoing wrist and right hand pain with pelvic pain improving slowly.
Consultation 24 August 2021 reported pins and needles intermittently down into foot on the right side which initially was intermittent numbness of the outer thigh after prolonged sitting.
Consultation 14 September 2021 reports persistent pins and needles in the right leg with certain positions. This was also recorded on 4 January 2022 as well as persistent problems with the right hand and wrist.
Discharge notes from the JHH suggest a possible fracture of the right scaphoid and note a pelvic tenderness, but no other significant injury. A subsequent MRI did not confirm the presence of a scaphoid fracture but did suggest some bruising to the wrist.
An MRI of the lumbar spine did not demonstrate acute pathology. A nerve conduction study performed on the upper limbs to investigate a numbness demonstrated mild slowing at the median sensory nerve conduction across the right wrist.
Subsequent review by Dr Burgess concluded symptoms from carpal tunnel syndrome. She recommended a carpal tunnel release. A subsequent cubital tunnel release was also recommended for ulnar sided symptoms although the nerve conduction study did not demonstrate significant conduction deficit for the ulnar nerve.
The Medical Assessor referred to an MRI of the right wrist on the Hunter Imaging website undertaken on 10 September 2021. This was said to demonstrate some bruising of the carpal bones with no evidence of acute fracture.
The Medical Assessor concluded that the following injuries were caused by the accident:
(a) soft tissue injury cervical spine;
(b) soft tissue injury right shoulder;
(c) soft tissue injury to the wrist including median nerve irritation at the carpal tunnel and ulnar nerve irritation at the elbow;
(d) right elbow bruising with subsequent right elbow ulnar neuritis including median nerve irritation at the carpal tunnel and ulnar nerve irritation at the elbow all resulting from the wrist injury;
(e) soft tissue injury to the lumbar spine, and
(f) scarring.
Whole person impairment was assessed as follows:
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current
%WPI*
%WPI* from pre-existing OR
subsequent causes
%WPI* due to motor accident
1
Cervical Spine
3/103 Table 3.3(h)
Yes
0
0
0
2
Right Shoulder
3/43 Figure 38
3/44 Figure 41
3/45 Figure 44
Yes
2
0
2
3
Right Wrist including median nerve irritation at the carpal tunnel and ulnar nerve irritation at the elbow
3/36 Figure 26
3/38 Figure 29
Yes
0
0
0
4
Lumbar Spine
3/06 Figure 3.3(i)
Yes
5
0
5
5
Scarring
1/32 Table 6.18
Yes
1
0
1
Dr Machart in his report for the insurer of 9 August 2023 made the following observations;
“He was taken by an ambulance to the John Hunter hospital. He was an inpatient for 2 or 3 days. There was no operative management at the time. He was diagnosed as having suffered a scaphoid fracture. He was treated by cast immobilisation for 3 or 4 weeks and then a brace for another month. He was followed up in the fracture clinic and subsequently through his GP and referred to D Burgess, orthopaedic surgeon.
He had physiotherapy. He was diagnosed with carpal tunnel and cubital tunnel syndromes which were released sequentially by Dr Burgess. There was improvement though symptoms have not resolved completely. There remains minimal numbness in the little and ring fingers of the left hand.”He concluded that there was documented contemporaneous evidence of injury to the right wrist, hand and neurological injury and scaphoid fracture. It was noted that the claimant was treated by two operations. One on each nerve, median and ulnar. Improvement was noted. Dr Machart said that there was no contemporaneous evidence of injuries to other areas of the body, cervical spine, lumbar spine, right shoulder, left knee, or right knee. He said that there was evidence of soft tissue injury to the right hip. He suspected this is responsible for trauma to the lateral cutaneous nerve of the claimant’s thigh causing meralgia paraesthetica.
Dr Machart assessed WPI as follows:
“Scar
TEMSKI 1% WPI.
Right hip
Meralgia paraesthetica right hip. AMA-4, table 64, lateral femoral cutaneous
partial sensory is 1% LEI (lower extremity impairment) which equals 0% WPI.
Neuropathy
Median nerve, relieved by operative management. 0% WPI.
Ulnar nerve partial loss of sensation. Table 15 ulnar nerve above mid forearm
maximal sensory deficit 7% UEI (upper extremity impairment), modified by table 15 at quarter which equals to 2% UEI, converts to 1% WPI.”Dr Bodel, for the claimant, provided a report dated 17 July 2023. He said the claimant walked with a mild right sided limp. There was no leg length inequality or spinal deformity. The claimant had tenderness in the trapezius muscles at the base of the neck on the right side and there was guarding in that area with a reduced range of neck flexion, extension and rotation in all directions and this was most restricted on rotation to the left. There was a restricted range of shoulder movement in the right shoulder.
Dr Bodel said that the claimant’s injuries were primarily an injury to the cervical spine, an injury to the right shoulder, a fracture of the right wrist, an injury to the lower part of the back and multiple contusions and abrasions. There was a closed reduction for the fracture of the wrist and then an open surgical repair for a carpal tunnel syndrome in the right wrist.
Regarding WPI, this was assessed as follows:
“This gentleman has a DRE cervicothoracic category II level of assessable impairment in accordance with the description in Table 73 on Page 3/110 of AMA4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
He also has a DRE lumbosacral category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA4. Again there is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
He has the rateable restriction of right shoulder and right wrist movement. The shoulder is assessed using Figure 38 on Page 43, Figure 41 on Page 44 and Figure 44 on Page 45 of AMA4.
The wrist is assessed using Figure 26 on Page 36 and Figure 29 on Page 38 as well as Figure 35 on Page 41. There is as a 10% upper extremity impairment for the right shoulder and a 6% upper extremity impairment for the right wrist. There is no other rateable pathology in that right upper extremity. The carpal tunnel syndrome has been relieved by the surgery done by Dr Burgess.
There are therefore two ratings to combine and they are 10% for the shoulder and 6% for the wrist giving a total of a 15% upper extremity impairment overall. This converts to a 9% Whole Person Impairment for the right upper extremity.
The only other rating is the scarring which I rate as a 1% Whole Person Impairment under the TEMSKI Scale as mildly complicated surgical scarring.
There are therefore a total of four individual ratings to be combined and they are 9% for the right upper extremity, 5% for the cervicothoracic spine, 5% for the lumbosacral spine and 1% for the scarring. These are combined using the Combined Values Charts on Page 322 of AMA4 and give a total of 19% Whole Person Impairment in this case.”
Medical examination
The claimant was examined by Medical Assessor Dixon on 27 September 2024. His report follows:
“History of Motor Vehicle Accident
This claimant was riding a motorcycle when a car came through a Stop sign and impacted the rear corner of his bike. He hit the car, rolled over the rear of the windscreen and had a helmeted head injury with loss of consciousness and was taken by ambulance to John Hunter Hospital where he stayed for two days. He was diagnosed with a fractured scaphoid of his right wrist and had pain over his lower pelvis in the front and around his lower back. He had multiple cuts and abrasions.
His right wrist was put in a cast in a splint and an MRI some three weeks after the accident showed some bony bruising to the triquetrum and hamate but did not confirm a fracture.
He had persisting pain in his palm with sensory change in his right hand and saw Dr Burgess, a hand surgeon, and nerve conduction studies on 22 September 2021 showed mild carpal tunnel syndrome. No abnormality was found with the ulnar nerve.
The claimant had endoscopic carpal tunnel release on 3 May 2022 at Lingard Private Hospital and subsequently had endoscopic cubital tunnel release on 23 August 2022.
He reported pain and stiffness of his right shoulder with residual weakness in his arm and sensory alteration in the ulnar three digits of his right hand when he was reviewed today.
Three weeks after the accident, he noted some trapezial muscle tightness and occipital headaches and had physiotherapy without sustained benefit but felt tightness turning his head to the right. He took intermittent Nurofen.
He reported pain in his lower back with lumbar stiffness and had anterolateral thigh numbness. This is more marked when he crosses his legs.
An MRI of his lumbar spine on 9 July 2021 showed no disc desiccation or evidence of acute injury.
On examination on 1 September 2024 he was 5’8” tall and weighed 76 kg.
On examination of his cervical spine flexion was decreased by one quarter and extension by one quarter. Lateral rotation to the right was decreased by one third bilaterally. Lateral flexion was deceased by one third bilaterally. There was tenderness of the right trapezius muscle. His cervical foraminal compression test was negative, as was his brachial plexus stretch test. The supraclavicular brachial plexus was non-tender. There were sensory changes in the ulnar 3 digits of his right hand. Apart from this, there was no other neurological deficit in the right upper extremity. His reflexes were symmetrical.
While there was wasting around the right shoulder girdle, there was no wasting of his right arm which measured 29cm, 10cm above the elbow and 28cm on the left and his right forearm measured 23cm, 10cm below the elbow crease and 24cm on the left. His thenar power was grade 5 out of 5 and his grip strength was grade 4 out of 5 on the right and intrinsic power was grade 4 out of 5. There was grade 2 out of 5 sensory loss in the ulnar three digits. The Tinel’s sign over the median nerve at the right wrist, however, was negative as was the Phalen’s test and the Tinel’s sign over the ulnar nerve where he had the cubital tunnel release was negative at the right elbow.
There was a full range of motion of his right elbow.
There was mild stiffness of his right wrist with dorsi flexion 50 degrees and palmar flexion 40 degrees, radial deviation 20 degrees and ulnar deviation 30 degrees. Pronation was full and supination decreased by one fifth.
There was restriction in range of motion of his right shoulder with forward flexion 130 degrees, active abduction 100 degrees associated with impingement, extension was 30 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 50 degrees. Shoulder girdle power on the right was grade 4 out of 5. There was some wasting of the right trapezius and supraspinatus muscle belly. The biceps groove was non-tender.
There was a full range of motion of his left shoulder where shoulder girdle power was grade 5 out of 5. There was a full range of motion of both elbows. There was a full range of motion of his left wrist and there was a full range of motion of both hands.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half and lateral flexion to the right decreased by one third and associated with pain and that to the left by one quarter. There was tenderness over the L5/S1 level in the mid line and tenderness adjacent to the lumbosacral facet joints. His straight leg raise on the right was 50 degrees and associated with sciatic pain in his right buttock and thigh and his straight leg raise on the left was 60 degrees. There was sensory loss in his anterolateral thigh in the region of the lateral cutaneous nerve of the thigh. His femoral nerve stretch test was equivocal. He reflexes were symmetrical and his power was grade 5 out of 5. His plantar responses were negative.
There was no wasting of his right leg below the knee measuring 33cm bilaterally and 1cm of wasting of his right thigh, measuring 43cm, 20cm above the patella, compared with 44cm on the left. He had a good range of motion knees, ankles, feet and toes. His normal gait was slow. He had right buttock and thigh pain on toe and heel walking and his squat test was associated with low back pain on the right.
Review of the imaging studies which he brought with him today noted MRI of the cervical spine on 2 February 2024 that there was moderate diffuse cervical spondylosis with bilateral C4 foraminal narrowing with potential impingement on either C4 nerve root. This can contribute to shoulder pain. There was significant narrowing of the right lateral recess of the spinal canal at C6/7 and this could be associated with sensory changes extending distally with C7 nerve root irritation.
MRI of the right wrist, right hand and lumbar spine on 10 September 2021 showed bony bruising at the triquetral bone and pisiform bone but no fracture seen in the distal radial metaphysis nor scaphoid and the scapholunate interval appeared normal. There was a pinhole tear of the TFC disc (triangular cartilage).
MRI of the right hand showed bone bruise at the IP joint of the little finger involving the PIP head and the base of the middle phalanx. There was no volar plate injury and the extensor tendons and collateral ligaments were intact. The 5th MCP joint was normal.
MRI of the lumbar spine showed desiccated lumbar disc with a very small posterocentral protrusion at L5/S1. There were no pars defects or spondylolisthesis. There was facet joint OA on the left at L4/5 and bilaterally at L5/S1.
In summary this patient was riding his motorbike and was involved in a collision and sustained a helmeted head injury with transient loss of consciousness. Apparently scans at John Hunter Hospital showed no brain or skull injury. He was treated for a suspected scaphoid fracture in his right wrist where he was shown to have bruising of the triquetrum and hamate. He developed sensory changes in his right hand and carpal tunnel decompression on the right wrist and has had release of the cuboid tunnel at the right elbow for ulnar neuritis with residual grade 4 out of 5 ulnar neuropathy for motor loss (from Table 12) and grade 2 out of 5 for sensory loss (Table 11).
He had an injury to his back with a lumbosacral disc protrusion and has meralgia paraesthetica of his right thigh (L2 – lateral cutaneous nerve of the thigh).
The range of motion of his right wrist was 40 degrees dorsi flexion, palmer flexion 50 degrees and radial deviation 20 degrees and ulnar deviation 30 degrees. Pronation was full and supination was decreased by one fifth.
His whole person impairment assessment is that for his cervical spine where he has had a known disc injury with aggravation of cervical spondylosis but no disc protrusion is DRE I, 0% WPI for the cervical spine.
That for the post traumatic stiffness of his right shoulder is from Pie Charts 38, 41 and 44, 10% upper extremity impairment and that for the post traumatic stiffness of his right wrist is from Pie Charts 26 and 29, Pages 36 to 38, 5% upper extremity impairment. That for the restriction of supination of one fifth is from Pie Charts 39, 1%. This gives a total of 6% upper extremity impairment for the right wrist. That for the ulnar neuropathy for the sensory loss is grade 2 out of 5 (25%) from Table 11 and that for the motor loss is grade 4 out of 5 for the ulnar nerve (25%) which, taken from Table 12, gives 25% loss for the combined motor and sensory deficits of 40% (from Table 15, Page 54) which gives 10% upper extremity impairment.
When this is combined with the ulnar neuropathy, this gives a total of 16% upper extremity impairment which equates to 10% whole person impairment .
That for the lumbar spine where he has had a disc protrusion at L5/S1 with post traumatic stiffness with dysmetria, erector spinae muscle spasm is from Table 72, Page 110, AMA V, DRE II, 5% WPI.
That for the surgical scarring is from the TEMSKI Table 6.18, Page 136, 0% WPI. The scarring at his right wrist and right elbow have healed very well and are difficult to see.
That for the meralgia paraesthetica which is the sensory loss of the lateral cutaneous nerve of the thigh is from Table 68, 1% whole person impairment. (It is not Table 64, which relates to diagnoses based assessments of the lower extremity and is not related to neurological deficit).
This gives a total from the Combined Values Chart of 19% whole person impairment.”
The Panel adopts the medical report of Medical Assessor Dixon.
Causation/reasons
The accident which occurred on 4 August 2021 involved a collision between the claimant riding a motorcycle and the insured car. The insured car travelled through a stop sign and then the collision occurred. The claimant hit the car and rolled over the rear windscreen. This would have been a sudden and unexpected impact for which the claimant had little bodily protection apart from wearing a helmet.
The insurer disputes that:
(a) the accident caused any significant injury to the claimant's lumbar spine.
The insurer says that the claimant did not list any injury in his APIB to his cervical spine, and his right shoulder.
Regarding the claimant’s lumbar spine, the insurer concedes that he complained about this to JHH but says there was a lack of consistent lumbar spine complaint following the accident. The Panel notes that the accident occurred on 4 August 2021 and the claimant completed his APIB six days later on 10 August 2021. The Panel considers that it would not be unreasonable, given the nature of the accident and the impact, that not all injuries would be immediately identifiable and troubling of the claimant. A failure to have contemporaneous reporting of an injury does not mean that it has not occurred.
On the assessment of the Panel, the claimant did not complain at JHH on admission about his neck. However, the claimant did make such a complaint three weeks later when he had trapezial muscle pain with occipital headaches. In the opinion of the Panel, it would not be unreasonable for these symptoms to be attributable as having been referred from the claimant’s neck.
The Panel is satisfied that the subsequent complaints of injuries to the claimant’s cervical spine, right shoulder and lumbar spine were reasonable and attributable to the accident which was one involving the claimant’s exposed body being collided into by a car and causing him to travel over the rear windscreen of the insured car and onto the ground.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s cervical spine, right shoulder and lumbar spine the claimant’s cervical spine, right shoulder and lumbar spine as well as his right wrist. The Panel is satisfied that the injuries suffered by the claimant could have arisen in the circumstances of the subject accident, to which the claimant was exposed when riding a motorbike colliding with a much larger car.
The circumstances of the accident were such, where a rider on a motorbike has collided with a car and has been thrown off the bike, into the car and onto the road, the injuries arising have, in the opinion of the Panel, been materially contributed to by the accident.
Notwithstanding the claimant not immediately reporting injuries to his cervical spine, right shoulder and lumbar spine, the Panel is satisfied that the accident and the nature of the forces operative on its occurrence have had a more than negligible effect on the injuries suffered by the claimant as a result of the accident.
The Panel is satisfied that the accident has caused all of the injuries claimed by the claimant. In considering whether the claimant’s injuries were caused or materially contributed to by the motor accident the Panel notes the accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. The Panel is of the opinion that the accident has been contributing cause to the claimant’s injuries and which is more than negligible, noting his exposure as a motorbike rider, being collided into by a car.
The insurer has conceded that as a result of the accident, the claimant suffered a fractured right wrist. However, the Panel is not satisfied that radiological investigations following the accident established this, that is, the Panel found the claimant did not suffer the fracture of his right wrist, although he did suffer a soft tissue injury to his right wrist. The MRI scan of 10 September 2021 confirms this.
The claimant says there is no discussion in the Medical Assessor’s certificate about claimant having to cease employment and loss of grip strength. The Panel has no information before it about why the claimant had to cease employment and whether this was attributable to a loss of grip strength. The Panel therefore makes no comment in this regard.
Conclusion
As a result of the accident occurring on 4 August 2021, the claimant suffered injuries to the following;
(a) injury to the cervical spine;
(b) injury to the right shoulder;
(c) injury to the right wrist/hand, and
(d) injury to the lower back.
The Panel assesses the claimant’s WPI at 19%.
Determination
The Panel revokes the certificate of Medical Assessor Kuru dated 12 April 2024.
The Panel assesses the claimant’s WPI at 19%.
0
3
0