Bogdanoski v Allianz Australia Insurance Limited
[2024] NSWPICMP 262
•30 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bogdanoski v Allianz Australia Insurance Limited [2024] NSWPICMP 262 |
| CLAIMANT: | Aleksandar Bogdanoski |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 30 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute as to the level of whole person impairment (WPI) of a physical injury caused by the motor accident; original Medical Assessor found a 6% WPI due to injuries caused by the accident; accident also found to have caused injuries to the cervical spine, left shoulder and thoracic spine, resulting in a 0% WPI; dispute as to the deduction of pre-accident impairment to the lumbar spine; on basis of examination and medical evidence, Panel found a 10% WPI of the lumbar spine and deducted 5% on the basis of documentary evidence demonstrating a DRE category II impairment prior to the subject accident; Held – 7% total WPI; injuries caused by the motor accident do not exceed 10% WPI; original medical certificate revoked and replacement certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated 20 June 2023 and issues a new certificate as follows: 2. The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%: (a) cervical spine – soft tissue injury; (b) thoracic spine – soft tissue injury; (c) left soulder and arm – soft tissue injury; (d) right shoulder and arm – soft tissue injury; (e) left rib and chest – soft tissue injury, and lumbar spine – soft tissue injury with aggravation of a pre-existing right L5/S1 disc protrusion with radiculopathic features affecting the right lower extremity. |
STATEMENT OF REASONS
BACKGROUND
Mr Aleksander Bogdanoski (the claimant) is a 34-year-old male who suffered injury on 13 October 2019 when he was the driver of a motor vehicle which was involved in a rear-end collision at an intersection in Greenacre.
The claimant subsequently lodged a claim with Allianz Australia Insurance Limited (the insurer) who is the compulsory third party insurer of the vehicle considered at fault. The insurer has a liability to pay the claimant statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%.” This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 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.[2]
[2] 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 Philip Truskett dated 20 June 2023. Medical Assessor Truskett certified the claimant as suffering a whole person impairment (WPI) not greater than 10%. He found the claimant suffers from a 6% WPI (5% lumbar spine, 1% right shoulder) due to injuries caused by the accident. He also found accident related injury to the cervical spine, left shoulder and thoracic spine which, however, result in a 0% WPI.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President’s delegate 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.[4]
[4] 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 Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (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.[5]
11.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.[6]
[5] Section 41(2) of the PIC Act.
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
In addition, clinical records of Hornsby Mall Medical Centre and Grace Medical Centre have been submitted to the Panel.
The Panel convened via teleconference on 8 February 2024. The Panel considered that a re-examination of the claimant was required. The claimant was examined by Medical Assessor Christopher Oates on 23 February at the Commission medical suites. The Panel held a further teleconference on 11 March 2024.
ASSESSMENT UNDER REVIEW
Medical Assessor Truskett examined the claimant on 9 June 2023 and issued a certificate and reasons on 20 June 2023. He found a 6% WPI.
Examination of the neck revealed full range of movement, with normal movement in all directions. Some altered sensation was noted, that did not follow a radicular or peripheral nerve pattern. No wasting was noted.
Examination of the lumbar spine revealed a 5cm scar from previous lumbar spine surgery. Some loss of lumbar lordosis was noted. Dysmetria was present with back movement and back flexion was noted as one quarter normal, extension half normal, lateral flexion to the left and right was normal.
The Medical Assessor examined both shoulders and found some reduction of right shoulder movement with some impingement. Limitation of right shoulder abduction was due to right shoulder and neck pain. Some impingement was noted on the right caused by right scapular pain.
In respect of causation, Medical Assessor Truskett noted the history of a previous lumbar spine injury that came to a microdiscectomy in October 2008 performed by Dr Darwish. The Medical Assessor concluded from review of the documentation that there was an incomplete resolution given some sensory loss along the S1 distribution on the right lower limb and some intermittent pain and sensory loss historically.
Medical Assessor Truskett concluded that the claimant suffered an aggravation of an L5/S1 disc injury as a result of the accident with right S1 radiculopathy. He found soft tissue injuries to the neck, thoracic spine, left shoulder, right shoulder (limitation of movement due to the Nguyen principle) and soft tissue injury to the left chest wall.
In respect of WPI, the Assessor found a 10% WPI in respect of the lumbar spine, however, deducted 50% on account of the previous lumbar spine injury. In this regard, he found the previous surgery would have resulted in a DRE Category II equating to 5%.
A 1% WPI was found in respect of the right shoulder due to a loss of abduction of the right upper limb.
A total of 6% WPI was certified as a result of injuries sustained in the motor accident.
SUBMISSIONS
Claimant’s review submissions dated 6 October 2023
The claimant submits that the Medical Assessor was in error in failing to provide an “actual path of reasoning” with respect to the pre-existing impairment. The claimant submits that the Assessor gives no explanation as to why surgery performed almost 15 years prior to the date of assessment would, at the date of assessment, result in persisting impairment.
The claimant notes the Assessor’s conclusion that the prior back surgery would have required surgery of the posterior elements to gain entry which would be in keeping with the posterior element fracture without dislocation.. The claimant submits that it is not explained why such fracture would not have healed by the date of the assessment.
Insurer’s submissions in reply dated 27 October 2023
The insurer refutes that the Medical Assessor failed to provide a path of reasoning when deducting for pre-existing impairment of the lumbar spine. The insurer notes the claimant provided a self report of ongoing pain and numbness on the lateral aspect of the right foot that persisted post surgery. The insurer submits that this satisfies DRE Category II.
The insurer also refers to a subsequently obtained report of orthopaedic surgeon, Dr Briet who opines there is no relationship with the alleged injuries and the subject motor accident.
Insurer’s original submissions to Medical Assessor Truskett dated 20 May 2022
The insurer submits that the claimant sustained soft tissue injuries as a result of the accident and a possible aggravation of pre-existing pathology.
The insurer notes the history of low back issues and refers to the various pieces of medical evidence in this regard that document pre-existing lumbar spine pathology and left arm pain radiating from the chest.
Insurer’s submissions to the Panel dated 25 January 2024
The insurer submits a re-examination is required due to credit and reliability issues. In this regard, it is submitted the claimant has given unreliable histories, most recently to Professor James Bright. It is submitted that the claimant’s history be taken with extreme caution during re-examination in light of reliability and credit issues.
The submissions refer to a report of Dr Breit, however, such report has not been included in the parties’ bundles for consideration by the Panel.
DOCUMENTS
The Panel has considered all material provided by the parties in their bundles and have also considered all other material provided.
Pre-accident medical evidence
As part of the Cheso Family Medical Practice file, reports of Canterbury-Bankstown Physiotherapy are included. A report of 9 March 20218 noted ongoing lower back pain with pain into the right leg. Initial examination revealed half range of motion.
A medical certificate of Cheso Family Medical Practice dated 15 January 2018 noted the prior history of back surgery in 2008, however, the claimant was still experiencing lower back and right leg pain. The back pain was said to be aggravated with lifting heavy weights and bending.
A CT of the lumbar spine of 7 October 2008 demonstrated moderate to severe narrowing at L3/4 because of disc bulging and ligament flava enlargement. Also shown was a mild narrowing at L4/5 and right postero-lateral disc protrusion at L5/S1 impinging on the right S1 nerve root.
The file confirms the claimant having undergone a L5/S1 microdiscectomy and right S1 nerve root rhizolysis at the hands of Dr Darwish on 31 October 2008. Dr Darwish in a report dated 18 November 2008 states the claimant had a complete resolution of his right leg pain, however, post-operatively a patch of numbness on the sole of the right foot.
The documentation reveals that despite Dr Darwish reporting an initial resolution of right leg pain, by at least 2013 complaints of right leg symptoms returned described in the Cheso Family Medical Practice notes on 11 November 2013 as back pain getting worse with radiating pain to the right leg. This appears to follow a change in job. This is also confirmed in subsequent reports of Dr Darwish, including a report of 10 March 2009.
The file also includes a note of 15 January 2018. The notes are difficult to decipher as they are hand written, however, it is apparent that the claimant was experiencing low back pain radiating to the right leg. It was recommended that he take Panadol Osteo and was referred to a physiotherapist. This is confirmed in a “care plan (chronic disease management)” of the same date.
Also before the Panel, included in an Application to Admit Late Documents lodged on behalf of the claimant is Canterbury Bankstown Physiotherapy clinical notes. A note of 15 February 2018 mentions neck pain with headaches and dizziness. Further appointments are attended with some improvement noted.
On 7 March 2018 the physiotherapy notes include a report of right lower back pain with pain radiating to the right foot. Ongoing appointments note neck and back issues. On 12 February 2019 the claimant reported lower back pain and left rib pain.
In the clinical file of Richard Road Medical Centre, a note of 12 June 2010 noted an onset of upper back pain with no history of trauma. Also noted was a previous lower back injury, chronic with a loss of sensation down the right leg. The claimant is noted to want a referral to a lumbar spine specialist, however, he was unsure of who at the time.
On 15 February 2018 dizzy spells with vertigo is noted.
Claim form
In the application for personal injury benefits dated 22 October 2019, injuries are listed as follows:
(a) right wrist fracture;
(b) neck pain;
(c) both shoulders pain;
(d) left arm, neck + pins and needles;
(e) pain in both legs and ankles;
(f) left rib and chest pain;
(g) low back pain, and
(h) pins and needles right buttock and leg.
The claimant ticked “no” to a question of whether he had an injury or illness affecting the same or similar parts of the body at the time of the accident.
Post-accident treating evidence
A discharge summary from Royal North Shore Hospital dated 13 October 2019 notes a history of the motor accident. Mild neck, upper back and left shoulder pain was noted. The pain was noted to have improved for the time that he was observed.
A Certificate of Capacity dated 15 October 2019 completed by Dr Pukanic noted diagnosis as: “strained cervical, thoracic, L Spine, contusion ant. chest wall, injured right wrist.” Treatment plan is noted as physiotherapy.
An MRI of the cervical spine performed on 17 October 2019 is reported to have shown mild degenerative changes with mild right paracentral disc bulge at C5/6 level. No significant neural tissue compression was noted.
A CT of the lumbar spine dated 17 October 2019 noted mild disc bulges at L2/3, L3/4 and L4/5, along with short pedicle causing mild canal stenosis at these levels.
A right paracentral disc osteophyte complex at L5/S1 level causing significant compression upon right S1 nerve root is reported, with bilateral facet joint arthropathy at L4/5 and severe facet joint arthropathy at L5/S1.
“Minor Injury” assessment certificate
A dispute as to minor injury (now known as threshold injury) was assessed by Dr Wallace on behalf of the State Insurance Regulatory Authority. In a certificate and reasons dated 15 October 2020 is certified the injury to the lumbar spine as being caused by the motor accident and not a minor injury for the purposes of the MAI Act.
Dr Wallace found the claimant suffered a musculoligamentous strain at the lumbar spine and “acute on chronic disc protrusion at L5/S1 level with associated right S1 radiculopathy.” He also diagnosed a musculoligamentous injury of the cervical spine caused by the motor accident.
Medico-legal evidence
In a report addressed to the insurer dated 23 February 2022, occupational physician Dr Robin Mitchell. Dr Mitchell took a history of the accident and the symptoms experienced. Also noted was the previous low back injury. It is recorded that the condition improved to a degree, however, the claimant continued to notice intermittent back pain from that time.
The doctor diagnosed soft tissue injuries to the neck and shoulders caused by the accident together with an aggravation of a long standing low back pain condition.
The insurer also relies on a report of psychologist, Professor James Bright, of Vocational Capacity Centre dated 8 December 2023.
Professor Bright took a history from the claimant of the previous lumbar spine surgery, and that he made a full recovery after “some time”. Professor Bright comments that the claimant’s self-estimates appear inconsistent with the observations of other practitioners. Professor Bright concluded that the claimant did not impress as a reliable historian with vague and inaccurate answers.
Whilst a report of Dr Breit, orthopaedic surgeon, was not included in the Bundle of documents relied upon by the insurer, lodged in compliance with the Panel’s directions, the Panel notes it was included in the insurer’s initial reply to the application for review. The report has been taken into consideration by the Panel.
The report of Dr Breit is dated 23 October 2023 and is addressed to the insurer’s representatives. Dr Breit states that the claimant’s complaints and presentation was inconsistent. Dr Breit considers there to be no relationship between the then current disabilities and the motor accident. He noted the accident to be a relatively low energy impact and that it was sometime before he saw a general practitioner (GP).
RE-EXAMINATION
Details of who attended the assessment
Mr Bogdanoski attended unaccompanied at the Commission Medical Suites for re-examination by Medical Assessor Oates on behalf of the Panel as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Mr Bogdanoski is Australian born and attended high school and then TAFE for two years to study IT. He then worked in short periods of work as a motor mechanic, truck driver, in IT, in hardware repair, and then began locksmith work in 2016.
At the time of the subject injury, he was working for Ajax Locksmith in North Sydney, having completed two years of a locksmith apprenticeship and had approximately one year more to do. The work he did was heavy and always involved field callouts in the Central Business District and North Sydney servicing, repairing and installing fire rated doors and lockware for large clients, such as Sydney City Council.
He has a defacto partner. There are no children. They live in an apartment.
He developed the spontaneous onset of right leg pain in 2008. He later developed back pain as well. He was eventually diagnosed with right S1 radiculopathy. He was referred to Dr Darwish, neurosurgeon, who performed a right L5/S1 discectomy and right S1 rhizolysis on 31 October 2008.
Post-operatively his back improved, as did his right sciatica, however he was left with patches of numbness persisting on the lateral mid-thigh and lateral right foot near the ankle. He had no persisting sciatic pain down the right leg.
He had a CT scan lumbar spine on 2 November 2011 to investigate the persistent right leg numbness and this revealed a residual moderate right L5/S1 disc protrusion, probably impinging on the right S1 nerve root.
He continued with physiotherapy and chiropractic on and off from the time of the surgery to relieve tightness in the back and also the neck after he had resumed more of his activities of daily living. There was no specific incident or injury causing the flare-ups.
In 2010, as he returned to physical activity following his lumbar spine operation, he developed a stiff neck and had X-ray of the cervical and thoracic spine on 12 June 2010 which was normal.
He had appendicectomy in 2017. He has been treated with Atacand for hypertension for the last 18 months to two years.
He had had no previous work injuries. He has had some minor motor vehicle accidents in the past but no physical injury.
He stated that he could not recall any previous symptoms affecting the cervical or thoracic spine or the shoulders or chest wall. The medical records do indicate that the claimant had an episode of neck pain and chest wall pain prior to the subject motor accident, but the evidence did not indicate continuing symptoms in these areas and the Panel is satisfied that the claimant had likely forgotten about these self-limited complaints.
History of the motor accident
Mr Bogdanoski confirmed on 13 October 2019, he was the driver of a Nissan Navara utility with his partner as front seat passenger. They were stationary at a set of lights at Burns Bay Road in Greenwich. He was wearing a seatbelt.
He was in lane 2 of the three-lane carriageway, which was a right turn lane, and there were two vehicles in front of his car. Another vehicle that was waiting behind him in the line changed from lane 2 into lane 1, near the kerb, in order to continue straight ahead. As this vehicle changed lanes, it was hit by another vehicle travelling at fairly high speed 60-70kmph along lane 1, which was not banked up with traffic, and this pushed the car that had been behind Mr Bogdanoski’s car back into the left rear side of his utility. Mr Bogdanoski’s utility was then pushed forward about one metre but did not hit anything in front, as he had kept a safe distance from the vehicle in front.
He doesn’t recall any impact injury and there was no loss of consciousness and he was not bleeding. He was able to get out of the vehicle through the driver’s door. Police were called but he is not sure whether they attended before he left the scene. His partner was very distressed and was injured, and after exchanging details with the other driver, he drove his partner to Royal North Shore Hospital.
They were both assessed at the hospital. At this stage, he was complaining of neck pain towards the left trapezius and shoulder and upper back, and also chest pain. He had CT scan of the cervical spine and X-ray of the chest. There was no rib fracture and no cervical spine fracture or dislocation, with straightening of cervical lordosis. There was tenderness over C4/C5.
History of symptoms and treatment following the motor accident
He attended his GP, Dr Pukanic, Bankstown on 15 October 2019 complaining of neck pain and back pain radiating to the right leg with pins and needles, and chest pain and right wrist pain with pins and needles in the right foot. He was sent for an MRI scan of cervical spine and CT scan lumbar spine and x-ray of right wrist. The right wrist X-ray showed no fracture.
He went to physiotherapy for about 12 months in all. His treatment was frequently interrupted because of COVID-related lockdowns. His GP subsequently retired, so he went to various medical centres over time.
He returned to work with Ajax a couple of months after the accident doing light duties in the office, and then after a few more months returned to field work, but found that the heavy lifting of objects such as 80kg fire-rated doors aggravated his back pain and he was having more and more sick days off work to recover from back pain over a 12-month period.
He attended the hospital in May 2020 with an acute exacerbation of low back pain from attempted lifting and then just simply bending under the kitchen sink at home to get the washing up liquid. He had an updated CT scan lumbar spine on 27 August 2020 and further physiotherapy for exacerbations of low back pain.
He ended up resigning in mid-2021 from work after he decided to have a break and try and get better.
He did not get around to seeing a specialist for treatment, although this was recommended, because of COVID-related disruptions.
He started his own locksmith business, which he continued for about 18 months, but he could not manage the workload and ceased the business in mid-2022 and since then has done occasional light jobs in locksmith work.
He did not finish the final six months of his TAFE course but he does have a Master Security Licence, so he is able to trade in NSW without having the full trade certificate, although this situation may change in the future.
Details of any relevant injuries or conditions sustained since the motor accident.
He has had no further accident or injury.
Current symptoms
His major problem now is low back pain, mainly right-sided, radiating to the right buttock, lateral right thigh and right lateral leg behind the knee and the back of the ankle, where there is a constant aching pain with hot sharp stabs of pain at times, which feels like nerve pain, down the right leg.
There is now a more extensive patch of numbness on the lateral right thigh to the posterolateral right calf, as far as the heel, and also the lateral right ankle and foot. The calf muscles twitch constantly and cramp at times. There is lack of power in the right foot and right hallux which affects his gait and he can’t lift off from the heel during walking.
His back is painful all the time but gets aggravated with small unguarded movements and attempted lifting and prolonged sitting in an upright chair or prolonged standing.
He does feel some muscular strain in the left thigh and calf from taking extra weight to favour the right leg.
He has neck discomfort about two or three times a week, with stiffness and restricted range of movement and occipital headaches when the neck is flared up. He finds that lifting even light weights or sudden movement of the neck cause problems. He has difficulty raising the right arm at the shoulder because of tightness in the right upper scapular thoracic at the base of the neck, but he can raise his left arm OK.
He does notice pain in the point of the left elbow and pins and needles in the left little and ring fingers, particularly if he extends the left arm behind the line of the body, but sensation returns if he brings his arm back in front of the body to the normal position. He also has some discomfort in the left scapular region. There is no longer any chest pain and no wrist pain.
Current and proposed treatment
He takes no medications now, as they would upset his stomach. He has IBS (irritable bowel syndrome) and lactose intolerance. He was taking Panadeine Forte and anti-inflammatories, but there was only partial effect anyway.
He has not had any physiotherapy or chiropractic since last year, as he can’t afford to have regular treatment. He has had remedial massages at times.
He no longer has private health insurance and he is behind in his mortgage, but luckily his parents can help them out.
He and his partner live in a home. There are no children. He notes that back pain and his partner’s own injuries make coitus problematic.
EXAMINATION
General presentation
He was of proportionate build with height 182cm and weight 105.2kg.
He walked with a stiff right-legged gait with the foot turned out. He stood with the right foot turned out for comfort of the back.
Cervical spine (cervicothoracic)
There was no guarding, spasm or tenderness. There was no dysmetria. Flexion and extension were full range, lateral flexion two-thirds bilateral and rotation was two-thirds bilaterally.
There was no non-verifiable radicular complaint. Power, sensation and reflexes in the upper limbs were normal.
Upper arm girth; right 35cm, left 34cm at 10cm above the elbow. Forearm girth; right 30cm, left 29cm at 5cm below the elbow. This is consistent with stated right hand dominance.
Lumbar spine (lumbosacral)
Five centimetres longitudinal lower lumbar well-healed mid-line scar.
Lumbar lordosis was preserved. There was no guarding, spasm or focal tenderness. He could walk on the heels but had difficulty with toe walking on the right side.
Flexion was one-half normal with complaint of right calf pain, extension two-thirds normal. Lateral flexion two-thirds of normal bilaterally. Thoracic rotation three-quarters of normal bilaterally.
Power was reduced in right foot eversion. Sensation was reduced to pin prick lateral right thigh and lateral right ankle and foot (S1). Reflexes were normal apart from absent right ankle jerk even with reinforcement (S1). Plantar responses were both flexor.
There was a positive sciatic nerve stretch test on the right at 60° and negative on the left at 70°.
Thigh girth; right 55cm, left 55.5cm at 10cm above the superior patellar pole. Leg girth; right 41.5cm, left 42.5cm at 14cm below the inferior patellar pole (maximal circumference).
Right and left shoulders
Active range of movement (ROM) measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 160° 180° Extension 30° 50° Adduction 40° 50° Abduction 160° 180° Internal rotation 90° 90° External Rotation 90° 90°
Active flexion and abduction of the right shoulder was said to be limited by scapular and upper trapezial pain on the right.
Consistency of presentation
The claimant presented in a straightforward consistent manner. Active movements of the lumbar spine and right shoulder did seem to evince discomfort.
Radiological investigations
No imaging films or reports were brought to the Panel re-examination.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnoses are:
(a) cervical spine soft tissue injury. The accident was a cause of this injury, as it is mentioned on the Claim Form dated 22 October 2019, in a hospital record, in the GP record of 15 October 2019, and the Certificate of Capacity of even date.
(b) Lumbar spine soft tissue injury with aggravation of a pre-existing right L5/S1 disc protrusion with radiculopathic features affecting the right lower extremity. The accident was a cause of this injury, as it is mentioned in the claim form, the GP record and the Certificate of Capacity.
(c) Thoracic spine soft tissue injury. This was caused by the accident, as it is referred to in the Claim Form, hospital records from the date of accident, GP record and Certificate of Capacity.
(d) Left shoulder soft tissue injury. This was caused by the accident, as it is referred to in the Claim Form and in the hospital record. This is the result of referred symptoms from the cervical spine based on the description given to me by the claimant.
(e) Right shoulder soft tissue injury with limitation of active elevation of the arm at the shoulder by scapular and upper trapezial pain adjacent to the cervical spine. There has been no investigation of either shoulder to demonstrate any localised pathology. The right shoulder is referred to in the claim form, that is eight days post-accident.
(f) Soft tissue injury to the left chest wall. The accident was a cause of this injury, as it is mentioned in the claim form, the GP record and Certificate of Capacity.
X-rays showed no rib fracture present. The chest wall injury is no longer symptomatic and is considered to be resolved by the Panel.(g) Right wrist injury, which was not referred for assessment. The accident was a cause of this soft tissue injury, there being no wrist fracture on imaging, as it is mentioned on the claim form, the GP record and the Certificate of Capacity.
Permanent Impairment
Cervical spine
There is no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy. The findings present of intermittent symptoms place him in DRE Cervicothoracic Category I giving 0% whole person impairment.
Thoracic spine
There are intermittent symptoms present, no dysmetria, no non-verifiable radicular complaints, no guarding and no radiculopathy. The findings place him in DRE Thoracolumbar Category I giving 0% WPI.
Lumbar spine
There is right S1 radiculopathy present as reflected in the clinical findings of absent right ankle jerk, weakness of right ankle/hind foot eversion, sensory loss in an S1 dermatomal distribution, and positive sciatic nerve root tension test on the right. This places him in DRE Lumbosacral Category III giving 10% WPI.
There is documented evidence of a pre-existing lumbar spine condition, which had required surgery in 2008, with some initial improvement, however there were persistent right leg symptoms of numbness prompting a CT scan in 2011 which revealed a residual moderate right L5/S1 disc protrusion probably impinging on the right S1 nerve root, which is concordant with the history he gave of persisting numb patches in the right lower extremity prior to the subject motor vehicle accident. Such sensory disturbance in a radicular distribution, would place him in DRE Lumbosacral Category II prior to the accident, owing to the presence of non-verifiable radicular complaints, and 5% WPI. This is on the basis of the history given by the claimant to both the original Medical Assessor and to the Review Panel Medical Assessor of persistent numb patches on the lateral mid right thigh and lateral right foot towards the ankle, indicative of a right S1 dermatomal distribution. There is also reference to ongoing lumbar symptoms in the physiotherapy record from 2019, the year of the motor accident.
Left shoulder
There was full active range of movement, hence no assessable permanent impairment.
Right shoulder
There was restricted range of movement in flexion, extension and abduction which forms the basis for assessing permanent impairment.
Flexion 160° gives 1% upper extremity impairment, extension 30° gives 1%, abduction 160° gives 1%. Adding these gives 3% upper extremity impairment, equivalent to 2% whole person impairment.
Combining 5% (net) WPI from lumbar spine with 2% WPI from right shoulder gives 7% WPI.
CONCLUSION
The Panel concludes that the WPI caused by the motor accident is not greater than 10%. Medical Assessor Truskett found a 6% WPI, and the Panel has found a 7% WPI. Therefore, the medical assessment certificate is revoked, and a new medical assessment certificate is issued.
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