Ayres v Insurance Australia Limited t/as NRMA Insurance (No 2)
[2022] NSWPICMP 374
•26 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ayres v Insurance Australia Limited t/as NRMA Insurance (No 2) [2022] NSWPICMP 374 |
| CLAIMANT: | Danielle Ayres |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW Panel | |
| PRINCNIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| DATE OF DECISION: | 26 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision; Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine; the present Panel were constituted to assess impairment of the cervical spine and any impairment of the upper extremities based on Nguyen principles; observations of the assessment of fractures in the cervical spine; the restriction in loss of range of shoulder movement caused by the motor accident is medically plausible given the severity of the cervical spine injury; Held – claimant assessed at 5% impairment for the cervical spine and 3% for each upper extremity; combined certificate issued with the Panel assessment for dysfunction of the temporomandibular joint impeding mastication. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 17 March 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: · cervical spine - bilateral C2 pedicle fractures; · right shoulder – Nguyen principle, and · left shoulder – Nguyen principle. The Panel revokes the combined certificate dated 7 April 2022 and issues a new combined certificiate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: · cervical spine - bilateral C2 pedicle fractures; · right shoulder – Nguyen principle, · left shoulder – Nguyen principle, and · Mastication - temporomandibular joint dysfunction. |
REASONS
BACKGROUND
Ms Danielle Ayres (the claimant) suffered injury on 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision. Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine.[1]
[1] Insurer’s bundle, page 10.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Ayres any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Ms Ayres “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Rosenthal and dated 17 March 2022. The Medical Assessor assessed the degree of permanent impairment at 5%. The details of that assessment are set out later in these Reasons.
A different assessment was undertaken by Medical Assessor Nichols who issued a certificate dated 2 April 2022 for temporomandibular joint dysfunction. The impairment of mastication due to temporomandibular joint dysfunction was assessed at 0%. A review of that certificate is before a differently constituted Panel.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the initial Direction.
A further direction dated 15 July 2022 was issued in the following terms:
“The Panel refers to the CT scan of the cervical spine dated 16 June 2018 (see insurer’s bundle, pages 40 and 42) where the fractures are described as:
‘There are mildly displaced fractures of both C2 transverse processes through the transverse foramina and the pedicles.’
The Panel also refers to the definition of DRE Cervicothoracic Category III under structural inclusions (2) (see AMA 4, page 104 - left hand column) which provides:
‘Posterior element fracture, but not fracture of transverse or spinous process; a mildly displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity’.The Panel raises the possibility that the claimant is assessed as DRE Category III as the fractures extend into the pedicles which is beyond the transverse process. Further, the fact that the fracture is described as extending into the pedicles affects the structural integrity of the spinal canal.
The insurer has leave to file any evidence or submissions in response to the issue raised by the Panel by close of business, 14 August 2022.”The insurer’s submissions are set out later in these Reasons. However, it raised an issue concerning the scans. The claimant was then directed to bring the scans to the assessment with Medical Assessor Dixon.
ASSESSMENT UNDER REVIEW
The Medical Assessor provided a medical assessment dated 17 March 2022 determining that the permanent impairment of the injuries was not greater than 10%. The Medical Assessor found that the bilateral C2 pedicle fractures had healed without dislocation or radiculopathy. He otherwise stated that there was “no evidence of any injury to either shoulder joint”.
The Medical Assessor assessed permanent impairment of the cervical spine at 5%.
MATERIAL BEFORE THE REVIEW PANEL
The Panel requested and were provided with separate bundle of documents provided by the parties.
Contemporaneous records
The ambulance report notes:[9]
“CT MVA OA BELMONT CAR ON SCENE DIRECTED AOS TO 39YOF CO NECK PAIN C1-C5 ACHE NON RADIATING POST 60 KM COLLISION WITH OTHER CAR THEN POWER POLE.”
[9] Claimant’s bundle, page 2.
The discharge records from John Hunter Hospital noted the motor accident which caused
Ms Ayres vehicle to swerve into a pole.[10] C2 vertebral fractures were found at hospital and Ms Ayres was placed into a Miami J cervical collar.[10] Insurer’s bundle, page 43.
The CT scan dated 16 June 2018 reported “mildly displaced fractures of both C2 transverse processes through the transverse foramina and the pedicles”.[11]
[11] Insurer’s bundle, page 44.
The MRI scan dated 16 June 2018 reported “pedicular fracture at the C2 bilaterally” with no surrounding haematoma.[12]
[12] Insurer’s bundle, page 43.
Dr Lisa Banh, neurosurgery registrar, provided a report dated 9 July 2018.[13] The doctor noted that Ms Ayres sustained bilateral C2 pedicle fractures which were minimally displaced and not associated with vascular injury.
[13] Claimant’s bundle, page 52.
A report from Dr Therese Jo, neurosurgical registrar dated 3 September 2018 stated that the recent X-ray and CT scan of the cervical spine “has shown further evidence of bony healing with no displacement”.[14]
[14] Attachment to insurer’s recent submissions.
Physiotherapy
A report from aquatic physiotherapy dated 12 February 2019 noted that Ms Ayres was extremely motivated with her rehabilitation and had gained significant strength and confidence through the program.[15]
[15] Claimant’s bundle, page 9.
A subsequent report dated 27 May 2019 noted improvement with ongoing concerns for the neck and feelings of dizziness with fast head movements.[16]
[16] Claimant’s bundle, page 13.
Claim form
The claim form dated 21 June 2018[17] noted the motor accident with injuries to the neck, seatbelt abrasions and bruising to right foot and left knee.
[17] Insurer’s bundle, page 8.
Radiology
The CT scan of the cervical spine dated 2 July 2019 recorded a clinical history of neck pain. Dr Grant Bateman, radiologist, reported:[18]
“The previous fractures of the pedicular region of C2 have completely healed with the fracture lines being no longer visible. The vertebral canal and the exit foraminae are widely patent throughout.”
[18] Claimant’s bundle, page 38.
General Practitioner
A review by the general practitioner, Dr Vanessa Lee, on 15 August 2018[19] noted the motor accident, C2 pedicle fractures and that the claimant was still in a neck brace. Complaints of TMJ pain were also noted.
[19] Claimant’s bundle, page 23.
Specialist treating records
Dr John Pickett, pain physician, provided a report dated 14 August 2019.[20] Ms Ayres reported ongoing pain in the cervical region with decreased range of movement and some associated TMJ clicking. Teeth grinding at night was thought to be associated with the stressful situation.
[20] Insurer’s bundle, page 32.
In a further report dated 25 September 2019, Dr Pickett noted that Ms Ayres occasionally used anti-inflammatory medication for pain flare ups.[21]
Statement – Ms Ayres[22]
[21] Claimant’s bundle, page 20.
[22] Claimant’s bundle, page 76.
Ms Ayres provided an extensive statement dated 11 April 2022.
Relevantly, Ms Ayres stated that she had ongoing neck pain and stiffness and asserted that she had lost “range of movement of my right and left shoulders from referred pain from my cervical spine condition”.[23]
[23] Claimant’s bundle, page 83.
Qualified opinions
Dr Uthum Dias, physician, was qualified by the claimant and provided a report dated
10 June 2021.[24] The doctor noted that the CT scan of the cervical spine taken at hospital revealed bilateral C2 pedicle fractures that were minimally displaced. Subsequent scans revealed healing of fractures.[24] Claimant’s bundle, page 53.
Dr Dias noted ongoing symptoms of pain and discomfort affecting the cervical spine with radiation to the left and right shoulder regions. Clinical examination showed no evidence of radiculopathy.
Dr Dias opined that there was chronic non-specific cervical spine pain with associated loss of range of shoulder movement. He assessed the fractures as DRE II based on Table 73 in AMA 4 because the pedicle fractures are “now healed and stable”. The shoulders were separately assessed as 2% impairment due to loss of range of shoulder movement due to referred pain.
Dr Andrew Keller, physician, was qualified by the insurer and provided a report dated
3 November 2021.[25] The doctor’s assessment was undertaken by video conference. He stated that he observed full range of movement of the shoulders with mild symmetrical restriction of cervical rotation. In a short supplementary report, the doctor concluded that the assessment of the cervical spine was DRE Category II based on Chapter 3, Tables 70 and 73 of the AMA 4.[25] Insurer’s bundle, page 114.
SUBMISSIONS
Claimant’s submissions dated 14 April 2022[26]
[26] Claimant’s bundle, page 71.
These submissions sought a review of the assessment provided by Medical Assessor Rosenthal. The submissions contested the methodology and observations made by the Medical Assessor in assessing the impairment of the shoulders.
Claimant’s updated submissions dated 1 September 2022
The claimant noted that there was further imaging not referred to by the insurer in its recent submissions, specifically a CT scan dated 6 August 2018 and an X-ray dated
31 August 2018. The MRI scan dated 16 June 2018 did not comment on whether there was displacement.The claimant agreed with the insurer that it was appropriate that the various scans were before the Panel and that it determine the appropriate category. Other opinions, such as those expressed by Dr Pickett, were not determinative of the issue.
The claimant also reminded the Panel that the loss of shoulder movement based on the Nguyen principle required determination.
Insurer’s submissions dated 13 July 2021[27]
[27] Insurer’s bundle, page 1.
The insurer accepted that the claimant does not suffer from any pre-existing injuries and/or conditions.
The insurer noted the scan evidence which showed displaced fractures of both C2 transverse processes through the transverse foramina and the pedicles. Complaints were made of temporomandibular joint dysfunction to the general practitioner on 15 August 2018.
On 3 September 2018 the neurosurgical registrar noted evidence of bony healing of the fractures of the bilateral C2 pedicles.
A CT scan of the cervical spine dated 2 July 2019 revealed that the previous fractures of the pedicular region of C2 had completely healed.
The insurer submitted that Ms Ayres sustained a C2 transverse process fracture which is stable and healed. This results in a DRE II rating and is assessed at 5%.
Insurer’s submission dated 18 May 2021[28]
[28] Insurer’s bundle, page 112.
The insurer stated that the 5% assessment of permanent impairment of the cervical spine was “not challenged”.
It was submitted that the Medical Assessor provided reasons why he found no rateable impairment of the shoulders based on the “Nguyen” principle.
Insurer’s submissions dated 11 August 2022
These submissions were filed in response to the further direction from the Panel. The insurer referred to the various scans evidence which showed progressive healing of the C2 fractures. It noted that Dr Jo stated in a report dated 3 September 2018 that the recent scans showed no displacement. The CT scan of the cervical spine dated 2 July 2019 was reported as showing completely healed fractures with normal alignment. The insurer submitted:
“9. Based on the above medical evidence, the insurer highlights that the initial hospital CT scan of the cervical spine dated 16 June 2018 shows there was mild displacement of the C2 pedicle fractures. However, the MRI of the cervical spine taken in hospital on the same date did not verify the displacement. To remove any doubt between the findings of these imaging reports, the insurer recommends that the panel request and review the actual radiological images to verify any displacement.
10. In any event, the insurer highlights that the later imaging and medical reports noted above, including the CT scan of the cervical spine dated 2 July 2019 indicate that the C2 pedicle fractures have healed in a non-displaced position. Additionally, the examination of Dr Rosenthal as per PIC certificate of WPI dated 16 March 2022 revealed there was no clinical evidence of dysmetria, no neurological deficits in the upper limbs, normal muscle power, tone and reflexes, no sensory changes and no evidence of verified radiculopathy. For these reasons, the insurer submits Dr Rosenthal’s WPI assessment pertaining to the cervical spine is correct and as follows: As per Table 70, pg 108 of AMA 4 Guides (and Table 6.7, pg. 107 of the Guidelines): Posterior element fracture, healed, stable, no dislocation or radiculopathy = DRE II = WPI 5%.”
RE-EXAMINATION
Ms Ayres was examined by Medical Assessor Dixon of the Review Panel. The examination report is as follows:
“This 54 year old claimant was involved in a major MVA with neck strain injury. She was taken to John Hunter Hospital, Newcastle where a CT scan showed mildly displaced bilateral C2 pedicle fractures (“Hanged Man” fractures) and she was placed in a neck brace which she wore for three months. Subsequent imaging showed the fractures had healed and functional views showed no instability.
On examination on 5 September 2022 there was mild stiffness of her cervical spine with flexion and extension decreased by one quarter, lateral rotation decreased by one quarter bilaterally, lateral flexion decreased by one third bilaterally with trapezial muscle pain bilaterally. There was tenderness of the upper cervical region in the mid-line and of the vertebra prominins spinous process. There was no spasm or guarding but there was tenderness of the trapezius muscles. The lower cervical facet joints were non tender. The cervical foraminal compression test was negative as was the brachial plexus stretch test. Her supraclavicular brachial plexuses were non tender. There was some tenderness of the TMJs with palpable clicking (this is being assessed today by another specialist). There was no neurological deficit of either upper limb with power grade 5 out of 5 and sensation normal and reflexes were brisk and symmetrical. There was 1cm of wasting of her left upper arm (she is right-handed). Her grip strength, intrinsic and thenar power of both hands was grade 5 out of 5.
On examination of her shoulders there was symmetrical restriction in elevation with forward flexion 150 degrees, active abduction 140 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees bilaterally.
Shoulder girdle power was grade 5 out of 5 on the right and grade 4 plus out of 5 on the left. There was no wasting of the shoulder girdle but there was tenderness of the trapezius muscles with pain in the trapezius muscles on shoulder elevation. The stiffness of her shoulders is related to her neck injury with trapezial muscle strain bilaterally, as per Nguyen.
Her investigations include the CT of the cervical spine from John Hunter Hospital on 16.6.18 which showed mildly displaced fractures of both C2 transverse processes through the foramina and pedicles. The MRI from John Hunter Hospital on 16 June 2018 showed pedicular fractures at C2 bilaterally.
CT of the cervical spine on 6 August 2018 showed the bilateral fractures through the pedicle of C2 are unchanged in position and alignment when compared to previous CT. There is minimal anterolisthesis at C2/3. The left sided fracture transverses the left foramen transversarium. The visualised soft tissues of the neck were unremarkable.
Flexion and extension x-rays of the cervical spine on 13 July 2021 showed evidence of bony healing but no displacement, that is functional views showed no instability.
X-ray of the cervical spine on 31 August 2018 healing minimally displaced fractures through the C2 vertebral pedicles with stable mild anterolisthesis of C2 vertebral body relative to C3 by approximately 2mm. There is no significant widening of the pre-vertebral soft tissue space. No instability was noted during flexion and extension. The alignment elsewhere was intact. No other fracture was noted.
A repeat CT of the cervical spine on 31 August 2018 showed the fractures were healing and the neck brace had been removed.
CT scan of the cervical spine on 2 July 2019 showed the previous fractures of the pedicular region of C2 have completely healed and the fracture lines are no longer visualised. The alignment of the cervical spine was normal and there was no slip in the neutral position. The vertebral canal and exit foraminae were widely patient.
In summary this claimant has had posterior element fractures, now stabilised without dislocation nor radiculopathy.
Her impairment assessment for the cervical spine is from Table 73, Page 110, AMA IV, DRE Category II, 5% WPI.
The assessment for each shoulder for the restricted range of motion for the trapezial muscle pain following her neck strain injury, as per Nguyen, is 5% upper extremity impairment for each shoulder, which gives 3% WPI for each shoulder.
This gives a total from the Combined Values Chart of 5% WPI, plus 3% WPI, plus 3% WPI, which equates to 11% WPI.
She has reached maximum medical improvement, that is, her condition is unlikely to change by more than 3% in the next 12 months. The permanency of impairment is confirmed by the consistency and duration of the complaint since the motor accident.
The claimant was consistent as the measurements were repeated on three occasions measured by a goniometer. Casual observations of the claimant on other occasions during the examination showed similar restriction of movement.
The explanation of the calculations for the shoulders is from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, with flexion of 150 degrees, which equates to 2% UEI, abduction of 140 degrees is 2% UEI, adduction 40 degrees is 0% UEI, extension 40 degrees is 1% UEI, external rotation of 80 degrees is 0% UEI and internal rotation of 80 degrees is 0% UEI, giving a total of 5% UEI for both shoulders.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[29] The Panel adopts the examination findings of Medical Assessor Dixon and adds the following reasons.
[29] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[30] and Insurance Australia Ltd v Marsh.[31]
[30] [2021] NSWCA 287 at [40], [41] and [45].
[31] [2022] NSWCA 31 at [11], [21], [64].
The submissions show there is no dispute that Ms Ayres suffered bilateral C2 fractures in the motor accident. The doctors qualified by the parties and the Medical Assessor, assesses this as DRE II (5%).
The Panel raised with the parties the correct classification of the fractures under the DRE categories.
As is clear from the reports of the radiologist at hospital and confirmed by Medical Assessor Dixon, Ms Ayres sustained bilateral C2 fractures of both transverse processes through the transverse foramina and the pedicles.
Table 6.7 of the Guidelines defines relevant DRE Categories of the spine. Relevantly spinal fractures are classified as DRE Category II if they are either:
· posterior element fracture, healed, stable, no dislocation or radiculopathy; or
· transverse or spinous process fracture with displacement of fragment, healed, stable.
A spinal fracture is classified as DRE Category III if it falls within the following classification:
· posterior element fracture with spinal canal deformity or radiculopathy, stable, healed.
Clause 6.126 of the Guidelines provides that if it is unable to distinguish between two categories, the higher category must apply.
The evaluation considers the impairment at the time of the assessment.[32]
[32] Clause 6.21 of the Guidelines.
Accordingly, to satisfy DRE III there must be either spinal canal deformity or radiculopathy at the time of the assessment. The fracture would fall outside the scope of DRE II if there was a dislocation or radiculopathy. Whilst there was a dislocation shown in the early scans, the requirement that there must be dislocation (to fall outside DRE II) or spinal canal deformity (to fall within DRE Category III) must be at the time of the assessment.
Clause 6.149 refers to fractures of the transverse or spinous process. However, the terms of the clause require displacement on an ongoing basis. The clause provides:
“Fractures of transverse or spinous processes (one or more) with displacement within a spinal region are assessed as DRE category II because they do not disrupt the spinal canal (pages 102, 104, 106, AMA4 Guides) and they do not cause multilevel structural compromise.”
Clause 6.133 refers to and adopt portions of AMA 4 including, relevantly for Ms Ayres’ injury, cl 3.3h of AMA 4. Clause 6.133 provides:
“6.133 The AMA4 Guides (page 99) use the term structural inclusions to define certain spine fracture patterns that may lead to significant impairment and yet not demonstrate any of the findings involving differentiators. Some fracture patterns are clearly described in the examples of DRE categories in sections 3.3g, 3.3h and 3.3i. They are not the only types of injury in which there is a loss of structural integrity of the spine. In addition to potentially unstable vertebral body fractures, loss of structural integrity can occur by purely soft tissue flexion-distraction injuries.”
The relevant part of section 3.3h in AMA 4 is defined under “structural inclusions”. DRE Category II applies to a posterior element fracture “without dislocation is present and healing has occurred without loss of structural integrity or radiculopathy”.
DRE Category III applies to a posterior element fracture where there is mild displacement that disrupts the spinal canal, the fracture is healed without loss of structural integrity.
To the extent that section 3.3h of AMA 4 gives examples of structural inclusions for spinal fractures, the definition shows that the dislocation or mild displacement must disrupt the spinal cord. The wording shows that the absence of dislocation, with the use of the word “present”, or the inclusion of the word “disrupts” in the context of displacement, suggests that the pathology must exist at the time of the examination.
We conclude that there was no dislocation or spinal cord deformity of the spinal fracture at the date of the assessment. Whilst Dr Keller and Dr Dias both incorrectly applied the tables in AMA 4 rather than the Guidelines, their conclusion that DRE II is the classification was correct.
Medical Assessor Dixon has otherwise assessed impairment of the upper extremities due to loss of range of movement of the shoulders. The loss of range of movement caused by the motor accident is medically plausible given the severity of the cervical spine injury causing symptoms which restrict shoulder movement. There were no other explanations for the loss of range of movement. Accordingly. we accept that the claimant has permanent impairment of the upper limbs due to restriction of bilateral shoulder movement caused by the serious neck injury.
The claimant is assessed at 11% by this Panel for the permanent impairment of the cervical spine and both upper extremities.
The claimant’s overall impairment is a combination of the assessments in this matter with the assessment provided by a differently constituted Panel of 5% for dysfunction of the temporomandibular joint impeding mastication. The combined impairment is 16% derived from the combination of 5% (cervical spine), 5% (TMJ dysfunction), 3% (right upper limb) and 3% (left upper extremity).
The permanent impairment of the injuries caused by the motor accident using the combined tables is 16%.
CONCLUSIONS
72.The certificate and the combined certificate issued by Medical Assessor Rosenthal are revoked. The new certificates are attached at the commencement of these Reasons.
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