Bno v AAI Limited t-as AAMI
[2023] NSWPICMP 621
•29 November 2023
DETERMINATION OF REVIEW PANEL CITATION: BNO v AAI Limited t-as AAMI [2023] NSWPICMP 621 CLAIMANT: BNO INSURER: AAI Limited t/as AAMI REVIEW PANEL MEMBER: Terence Stern OAM MEDICAL ASSESSOR: Margaret Gibson MEDICAL ASSESSOR: Phillip Truskett DATE OF DECISION: 29 November 2023 CATCHWORDS: MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute with respect to the degree of whole person impairment (WPI); review of assessment by Review Panel; Medical Assessor (MA) had assessed an annular tear of the intervertebral lumbar disc as not caused by the motor accident; causation disputed; MA had assessed an injury to the left shoulder as giving rise to 7% WPI; Review Panel determined that on clinical examination of the lumbar spine, there was no paravertebral muscle guarding, no wasting of the muscle of the lower limbs, and a full range of back movement, with a result that there was zero WPI for this area; there was no evidence of a sudden traumatic annular tear of the intervertebral lumbar disc having been caused by the accident; principles to be applied in respect of causation considered; section 5D Civil Liability Act 2002 applied; Peet v NRMA Insurance Limited and Wallace v Kam applied; Held – certificate of MA Rapaport revoked.
DETERMINATIONS MADE: CERTIFICATE OF DETERMINATION
Replacement Certificate issued under s 7.23 of the Motor Accidents Injuries Act 2017
1. The Review Panel revokes the Certificate of Medical Assessor Adam Rapaport of
7 May 2023.2. The Review Panel certifies that the claimant’s injury resulted in whole person impairment of 1%.
STATEMENT OF REASONS
INTRODUCTION
Background
1.BNO (the claimant) was born in September 1993.
2.On 10 February 2019 (the accident), at about 10:30am, he was injured in the accident.
3.At the time, he was the driver of an old (2001) Toyota Corolla, when another vehicle collided with the vehicle he was driving, striking the driver’s door as a result of which, the claimant alleges that he sustained significant injury.
4.More substantial details of the background are provided by Medical Assessor Truskett in his ‘Sequence of Events’, which I reproduce below.
APPLICATION UNDER REVIEW
5.On 7 May 2023, Medical Assessor Adam Rapaport certified that the degree of permanent impairment, caused by the accident, was 7%.
6.A significant matter in dispute between the parties was whether or not the Medical Assessor was correct in finding [25] that an annular tear of the intervertebral lumbar disc was not caused by the accident.
7.Another significant issue in dispute between the parties was whether there was an injury to the left shoulder, giving rise to whole person impairment of 7%, as found by the Medical Assessor.
ISSUES FOR DETERMINATION
Materials before the Review Panel
8.The Panel had available to it the materials which had been uploaded to Pathway by the claimant and the insurer.
Claimant’s submissions of 15 June 2023
9.The Panel briefly refers to the claimant’s submissions.
10.The submission referred to the Medical Assessor’s conclusion that if the claimant had had a sudden traumatic annular tear of the intervertebral lumbar disc, he would not have been able to extract himself from the vehicle (via the passenger door) without a complaint of back pain.
11.The submission then referred to the principles to be applied in respect of causation (material contribution which is more than negligible) and argues that Medical Assessor Rapaport had failed to apply the proper test for causation.
12.The submission then referred to the findings of Dr Bentivoglio, who had found that the neck and back symptoms were sufficiently contemporaneous to conclude that the annular tear and L4/5 occurred as a result of the accident.
Insurer’s submissions of 3 July 2023
13.The Panel briefly summarises those submissions which are relevant to the determination by the Panel.
14.The Panel refers to [13] of the submission, which reproduced Medical Assessor Rapaport’s conclusions at [22]:
“The diagnosis of the lumbar spine condition causally related to the motor accident on 10 February 2019 is aggravation of pre-existing chronic degenerative disc disease of the lumbar spine. The radiological signs of disc desiccation and herniation found in many of the claimant's lumbar vertebral intervertebral discs are longstanding.
The annular tear of the disc described in the MRI of 15 October 2019 at the L4/5 intervertebral space is not referred to in the MRI of lumbar spine dated 17 March 2021. Instead, an annular tear is described at a different location, namely the L2/3 intervertebral level with no mention by the reporting radiologist of the formerly observed L4/5 annular tear condition.
This additional new finding of L2/3 annular tear occurs in the absence of an intervening back injury or other explicable traumatic event that post-dated the motor accident. It is most likely explained by continuing and progressive degenerative disease in the intervertebral discs of the claimant’s lumbar spine.
The terms bulging disc, disc herniation, disc desiccation, annular fissure and annular disc tear are all descriptive terms for a degenerative process whereby deterioration of the soft gelatinous nucleus pulposus of the intervertebral disc pushes against the thinning and degenerating annulus producing a bulge or herniation through the thinned and fissured annulus fibrosis.
The mechanism of injury of a minor traffic crash in which the car could be driven away and with the claimant spending a luncheon with family at a club immediately afterwards, is implausible were it to be associated with a contemporaneous and sudden traumatic annular tear of the intervertebral lumbar disc.
Because the claimant’s driver’s door was compacted in the crash and unable to be opened causing him to crawl from his driver’s seat, across the front passenger seat to exit the vehicle via the passenger door and to do the opposite manoeuvre when driving home from the club, such an effort without a complaint of back pain is not conceivable if a sudden tear of the annulus of L4/5 was to have occurred at the time of the crash.
The transmission of force to the lumbar spine from the collision of both vehicles sufficient to tear the annulus fibrosis of the L4/5 intervertebral disc would be expected to render the claimant in agonizing pain such that he would be unable to exit the vehicle unaided or to sit through a luncheon with family and driving them home afterwards without experiencing severe back pain.
The diagnosis of the cervical spine injury is whiplash injury with aggravation of pre-existing underlying chronic degenerative disease as diagnosed by his treating spinal surgeon Dr. Joanna Lee.
The left shoulder tear discovered on radiology more than 2 years post-accident with dystrophic calcification of the subscapularis and supraspinatus tendons are also likely to be longstanding however the claimant has had no prior history of left shoulder symptoms and the claimant describes being thrown against the passenger seat following the side collision of the vehicle.
There is a plausible mechanism for the left shoulder injury and subsequent tear. The examination of the left shoulder does indicate dysfunction and loss of range of active motion.
The partial tear of the left supraspinatus tendon and subdeltoid bursitis are therefore considered to be causally related to the subject motor accident.”
(the emphasis was added by the insurer)
15.The submission then, at [14]-[15], submits that the Medical Assessor applied the correct test on causation, gave a comprehensive and thorough Certificate, with reasoning that was extensive and easy to follow.
16.At [19], the Submission refers to the Determination of Medical Assessor Neil Berry, who assessed the cervical spinal injury as a soft tissue injury and with respect to the injury to the lumbar spine, Medical Assessor Berry had found that there was a symmetrical range of lumbar motion with no evidence of muscle spasm, dysmetria, or radiculopathy.
17.The submission refers at [20]-[21] that it was irrelevant what competing doctors had observed. Medical Assessor Rapaport was entitled to arrive at his own conclusions.
CAUSATION
Guidelines18.With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’ This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
19.Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following
elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the
occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
20.The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
21.Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
22.The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
THE EVIDENCE BEFORE THE REVIEW PANEL
Notes from the treating medical practitioners
23.Dr N Ganeshan reported on 18 March 2021 of an MRI cervical and lumbar.
24.As to the cervical spine, he concluded that there was a C5/6 disc bulge with paraforeminal components, and potentially C6 root impingements.
25.As to the lumbar spine, Dr Ganeshan reported that there were very mild disco-vertebral changes, with an annular tear and disc bulge at L2-3, without neural impingement, and mild facet joint arthropathy.
26.
The Panel had available to it the clinical notes of Dr Tom Lieng, general practitioner (GP) for
5 March 2008 to 14 May 2021, and of Dr Joanna Lee of 21 January 2022.
27.Dr Joanna Lee, neurosurgeon, reported to Dr Lieng, the claimant’s GP, of the consultation of 27 April 2021, for opinion and management of ongoing neck and low back pain following the accident.
28.Dr Lee took a history that:
“…The other driver had already T-boned the driver side of his car. The driver side was indented, the car was a right off, he was unable to get out of that side. He had to get out of the front seat passenger side. He denies any loss of consciousness, he had no air-bags, but recalled twisting of the lower part of his body and neck towards the left hand side. He did not go to emergency or attend the hospital that day. He was in shock but was able to attend his grand-daughter’s birthday. Eventually he saw his GP as he had persistent neck and low back pain. This is unlike him, and he had no pain of his neck or back prior to the accident.”
29.Dr Lee had the MRI of March 2021.
30.Dr Lee was of the opinion that the claimant’s neck pain:
“…is likely due to both neuropathic and mechanical components, both arthritic discovertebral arthritis as well as neuropathic from the nerve root compression at C5/6. His low back is more likely due to mechanical from a combination of facet joint arthropathy or sacroiliac joint inflammation. In order to confirm the sources of pain, I would like him to undergo bone scan + SPECT CT.”
Medicolegal reports
31.Dr Drew Dixon reported on 22 September 2021 at the request of the claimant’s solicitor. The Panel notes that Dr Dixon diagnosed the following, all causally related to the accident;
i.whiplash injury to the neck with C5/6 disc bulge;
ii.post-traumatic stiffness of the left shoulder due to trapezial muscle pain, and
iii.low back strain injury with post-traumatic lumbar stiffness, with the erector spinae muscle spasm, lumbosacral facet arthralgia and annular tear at L2/3.
32.For the whiplash injury, with post-traumatic stiffness, dysmetria, facet arthralgia, and C5/6 disc legion, encroaching into the intervertebral foramina from Table 73, page 110, AMA-IV, Dr Dixon assigned DRE Category II, 5% whole person impairment.
33.For the post-traumatic stiffness of the left shoulder from Pie Chart 38, 41, and 44, pages 43-45 AMA-IV, he assigned 4% whole person impairment.
34.For the lumbar spine, where the claimant had a known back strain injury with post-traumatic lumbar stiffness with dysmetria, with residual erector spinae muscle spasm, with a disc lesion at L2/3, with an annular tear and aggravation of lumbosacral facet arthralgia, he assigned from Table 72, page 110, AMA-IV DRE Category 2, 5% whole person impairment.
35.The three injuries gave rise to a total 14% whole person impairment from the Combined Values Chart.
36.Dr John Bentivoglio, orthopaedic surgeon, reported on 3 February 2022 to Moray and Agnew, on behalf of the insurer.
37.The Panel notes Dr Bentivoglio’s description of his physical examination of the claimant.
38.Dr Bentivoglio was of the opinion that:
“An MRI scan taken of his lumbar spine in October 2019 eight months following the motor vehicle accident indicated that he did have an annular tear at the L4/5 level of his lumbar spine which may have occurred as a result of the motor vehicle accident. With his neck, MRI scans taken of his cervical spine indicate he does have significant pre-existing degenerative changes present in his cervical spine that have become symptomatic as a result of the motor vehicle accident.
I would consider any symptoms he is experiencing in his shoulders are referred symptoms from his neck. Certainly, BNO demonstrated a significantly lesser range of movement present in his shoulders for me (done face-to-face) as compared to for his solicitor IME done in a Zoom meeting. There are signs of inconsistent presentation on movement of his shoulders. In the absence of any investigations done of his shoulder, I would not consider he has any disability emanating from his shoulder region.”
39.Dr Bentivoglio considered that the claimant did have a DRE Category II impairment of his lumbar spine with 5% whole person impairment, as a result of discal damaging occurring at L4/5 level of the lumbar spine. He considered that this had become symptomatic as a result of the injury in the accident.
40.As to the claimant’s neck, Dr Bentivoglio assessed him as DRE category II as there was evidence of him “perhaps” sustaining some degree of discal damage at C5/6, as a result of the accident, for which he would also assign 5% whole person impairment.
41.As to the shoulder complaints, Dr Bentivoglio considered that the symptoms were referred from his neck but because of inconsistent presentation he would not attribute any impairment rating to the shoulders, noting that he had not had any investigations in respect of his shoulders.
Diagnostic investigations
42.In addition to all of the above materials, the Panel had available the imaging studies/reports which the claimant brought to the re-examination, and which Medical Assessor Truskett refers in page 5 of his Reasons, prepared on behalf of the Panel:
i.MRI lumbar spine performed by Campbelltown MRI on 15 October 2019, reported by Dr Tom Lieng, and
ii.MRI cervical spine and lumbar spine performed by Rayscan Imaging on
18 March 2021 reported by Dr Niranjan Ganeshan.
THE EVIDENCE
Re-examination by the Panel
43.Medical Assessor Truskett re-examined the claimant for the Panel on 10 November 2023.
44.The claimant had the assistance of an interpreter, Ms Todorke Kersun, NAATI number CPN30T71R, who was present for the duration of the assessment.
45.Medical Assessor Truskett took the following history:
“This assessment was a response to an appeal concerning the whole person impairment assessment of Assessor Adam Rapaport dated 7 May 2023. The following injures were referred for whole person impairment:
• Cervical spine - posttraumatic stiffness with dysmetria.
• Lumbar spine - posttraumatic stiffness with dysmetria.
• Left shoulder - stiffness with supraspinatus tendon tear and subdeltoid bursitis.”
46.Further, Medical Assessor Truskett set out the sequence of events as told to him by the claimant:
“The claimant is a 70-year-old man. He was involved in a motor vehicle accident on
10 February 2019 at approximately 10:30 am. He was the driver of a year model 2001 Toyota Corolla. He was wearing his seatbelt. The car was fitted with headrest. Air bags were not fitted. His wife was seated in the front passenger seat and his brother was in the rear seat. It was a fine day. He was proceeding along Sherwood Road, Merrylands, and was stationary at the intersection of Bristol Street to his right. He was waiting to turn right. He was waiting for a vehicle which was travelling in the opposite direction towards him to pass. Whilst doing so, a vehicle to his right started from the standard position and entered the carriage way hitting his driver's door. He was not knocked out. He could not open the car door because it had become distorted. He was able to get out of the vehicle via the passenger side door. No other object or vehicle was struck by his vehicle. Police and ambulance were not called. He exchanged details with the other driver.
They then proceeded to the Merrylands Bowling Club for a planned lunch. It was a significant event as it was a granddaughter's birthday who had come from the country for this occasion.
Although the vehicle was driveable, it was later written off.
At the time of the accident, he was in no real pain, but the following day, experienced pain in his neck, lower back, and left shoulder. His wife had some Panadeine Forte in the house and he took this for pain. On questioning, at all times, the lumbar spine was at the lumbosacral region and no higher.
Approximately one week later, he attended his local medical officer, Dr Tat of Green Valley. He was given further pain medication. Dr Tat did not see CTP clients. He was then referred to Dr Tom Lee of Liverpool. Further pain medication was provided. He also had physio at Canley Heights. He continues to have physio receiving once per week. This was paid by the insurer.
He was referred to Dr Joanne Lee (neurosurgeon) whom he saw on 27 April 2021. An MRI scan of his back was performed. He was advised that he had disc injuries. No surgery was suggested. He has also had an MRI scan of his left shoulder but has not been referred to a specialist for this.
In relation of work, at that time he was doing a casual work, three to four hours per day, five days per week for friends. This was maintenance work. He had been doing so for some six months. He is on the aged pension. He has not worked since the accident.”
Current medications
47.The claimant told Medical Assessor Truskett that he was on the following medication, namely Panadol 2-3 times per week and powder satchels that he had brought from Macedonia, which he takes 2-3 times per week.
Current complaints
48.The claimant told Medical Assessor Truskett that he still has the following symptoms in his neck, lumbar spine, and shoulder:
“Neck
He has pain at the back of his neck which is episodic. The pain will occur two to three times per week and will last for around 30 minutes. He would score this pain as 7 /10. It is brought on whilst driving or with activity. The pain will radiate to the left shoulder blade. It is non-radicular in nature. He had no previous neck pain prior to motor vehicle accident.
Lumbar spine
He has pain in the lower lumbosacral region which is present all the time. The pain was never any higher than this site. There was no pain before the motor vehicle accident. He would score this pain as 6/10 and may exacerbate to 9/10 especially when sitting for long periods. He will experience numbness in the left leg from time to time which may occur three to four times per week. This numbness involves the entire leg and is not a radicular distribution. This numbness may last for one hour.
He has pain in his left shoulder blade and shoulder joint. This is episodic and would score 7 /10 and may last up to one and half hours. This pain is brought on by activity and laying on his left side.
Because of his symptoms he is unable to run or jog. He can walk for 20 minutes. He can stand for 20 minutes. He can sit for one hour. He is able to drive a motor vehicle a short distance. He can climb stairs slowly. He can do light housework. He can cook. He can go shopping. He can socialise but this reduced. He can perform all acts of daily living. He does not play sport by choice.”
Clinical examination
49.Medical Assessor Truskett performed a clinical examination:
“On examination, he walked with a normal gait. He sat throughout the interview. He appeared to speak little English and relied entirely on his interpreter.
He had a normal affect.
He is 175 cm tall and weighs 93 kg. This provides him with a body mass index of 30.4 kg/m2 which places him in the obesity class 1/3. He does not smoke and drinks alcohol socially. He removed his trousers for the purpose of the examination. The interpreter waited outside the room during this process. He could communicate adequately for the purpose of physical assessment.
On examining his neck, there was no muscle guarding. There was a 6 x 4 cm intramuscular lipoma at the back of his neck. He said this had appeared since his motor vehicle accident but would not be related. He had a full range of neck movement. Neck flexion and extension were normal. Lateral flexion left and right was normal. Rotation left and right was normal. Power, tone, and sensation in both upper limbs were normal. Biceps, triceps, and supinator jerks were present and equal.
There was no wasting of the muscles of the upper limbs. Both arms measured 33 cm in circumference 10 cm above the olecranon and forearms measured 28 cm at their widest point.
On further general examination, he had multiple lipomas on both upper limbs and lower limbs. On examining his back, there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding. Power, tone, and sensation in both lower limbs were normal.
Knee jerk, medial hamstring jerk, and ankle jerks were present and equal. Straight leg raising was possible to 90 degrees bilaterally. There was no wasting of the muscle of the lower limbs. Both thighs measured 45 cm in circumference 10 cm above the patella. Both calves measured 38 cm at their widest point. There was a full range of back movement. Back flexion and extension was normal. Lateral flexion left and right was normal. Rotation left and right was normal. He could walk on his
toes and his heels. He could manage a full squat with support. On examining both shoulders, there was no wasting of the muscles of his shoulder girdle. Initially, when examining his shoulder, abduction was initially 140 degrees, but when testing impingement, for reasons that were not clear he demonstrated voluntary abduction to 160 degrees without impingement. This was repeated on three occasions and measured with a goniometer.
Active Range of Movement
Right
Left
Flexion
170
180
Extension
50
50
Adduction
50
50
Abduction
160
180
Internal Rotation
90
90
External Rotation
90
90
He described his pain as being over his scapula.”
Consistency of presentation
50.Medical Assessor Truskett observed some inconsistency in the claimant’s right shoulder movements, however, repeated measurements were consistent.
Investigations
51.As noted above, Medical Assessor Truskett had a number of imaging studies/reports available, which the claimant had brought to the assessment:
“MRI lumbar spine performed by Campbelltown MRI on 15 October 2019
Impression: There is evidence of lumbar spinal disc bulging at L2/3 with no obvious neural compression. L3/4 with no neural compression. L4/5 with subtle disc hyperintensity consistent with a tear. There is spinal canal narrowing at L2/3.
MRI cervical spine and lumbar spine performed by Rayscan Imaging on 18 March 2021. reported by Dr Niranjan Ganeshan.
Conclusion:
1. Cervical spine CS/6-disc bulge with paraforaminal component and potential C6 root impingement.
2. Minor discovertebral changes, lumbar spine. Very mild discovertebral changes with an annulus tear at the disc bulge at L2/3 without neural impingement.
3. Mild facet joint arthropathy.
52.Medical Assessor Truskett commented that clinically, no pain had been described at L2/3 and, on this occasion, an L4/5 tear had not been documented.
Diagnosis and reasons
53.Medical Assessor Truskett arrived at the following diagnosis and Reasons:
“The Claimant was involved in a motor vehicle accident on 10 February 2017 as described. Prior to the motor vehicle accident, he described no symptoms relating to his lumbar spine, cervical spine or left shoulder. The symptoms relating to his cervical spine, lumbar spine, and left shoulder are a consequence of his motor vehicle accident. He has now reached maximal medical improvement.
1.Permanent Impairment Table
| Body part or system | AMA4 Guides/Guidelines References (chapter/page/table) | Permanent (YES/NO) | Current % WPI* | %WPl* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | Chapter 3, page 103, Section 3.3h, Table | Yes | 0 | 0 | 0 |
| 2 | Lumbar Spine | Chapter 3, page 101, section 3.3g, table 70 | Yes | 0 | 0 | 0 |
| 3 | Left Shoulder | Chapter 3, page 41, section 3.1j, figure 38, page 43, figure 41, page 44, figure | Yes | 1 | 0 | 1 |
1% WPI = percentage whole person impairment
Cervical Spine
Stable: Yes.
Reference: AMA Guides Fourth Edition
Relevant Chapters and Tables: Chapter 3, Page 103, Section 3.3h, Table 70, Page 108 and Table 73, Page 110.
Assessment: DRE Category I.
Whole Person Impairment: 0%.
Reason for Assessment: A 0% whole person impairment has been assigned as there is no muscle guarding, no non-verifiable different complaint, no dysmetria, no neurological signs and no bony injury.
Lumbar Spine
Stable: Yes.
Reference: AMA Guide Fourth Edition.
Relevant chapters and tables: Chapter 3, page 101, section 3.3g, table 70 Page108 and table 72, Page 110.
Assessment: DRE Category I.
Whole Person Impairment: 0%.
Reason for Assessment: A 0% whole person impingement has been assigned as there is no muscle guarding and no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.
Left Shoulder
Stable: Yes.
Reference: AMA Guide Fourth Edition.
Relevant chapters and tables: Chapter 3, page 41, section 3.lj, figure 38, page 43, figure 41, page 44, figure 44, page 45 and table 3, page 20.
Whole Person Impairment: 1%.
Reason for Assessment: A 1% whole person impingement has been assigned and as according to the reported pie chart he has a 2% impairment of his left upper limb. When table 3, page 20 is consulted, this equates to 1% whole person impairment.”
CONCLUSION
54.The Medical Panel notes the opinions of Dr Dixon and Dr Bentivoglio but is bound to issue its determination on the evidence at the time of its re-examination.
55.The Panel refers to the findings of Medical Assessor Truskett on 10 November 2021 that, on examining the neck, there was no muscle guarding, and that there was a full range of movement. Further, there was no wasting of the muscles of the upper-limbs.
56.The Panel also refers to the findings on examination of the lumbar spine, that there was no loss of lordosis, no muscle guarding, no muscle wasting of the lower limbs, and a full range of back movement.
57.Again, on physical examination of both shoulders there was no wasting of the muscles of the shoulder girdle and the range of movements was as noted.
58.Further, Medical Assessor Truskett considered, and the members of the Panel agreed, that the diagnostic investigations did not support the proposition that there was an L4/5 tear. There were very mild disco vertebral changes, with an annular tear at L2/3, but without neural impairment.
59.The Panel, therefore, revokes the Certificate of Medical Assessor Rapaport of 7 May 2023, and certifies that the claimant’s injuries give rise to whole person impairment of 1%.
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