Bounias v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Bounias v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 157
CLAIMANT:	Tina Bounias
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Trudy Rebbeck
DATE OF DECISION:	13 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about whole person impairment and review of assessment under section 7.26; claimant injured in T-bone type accident sustaining head injury resulting in hearing loss (from side airbags deploying), neck chest and ribs, right and left shoulder injuries; Medical Assessor (MA) Cameron assessed whole person impairment (WPI) at 2% and hearing loss assessed by MA Howison at 3%; hearing loss assessment not challenged, head injury, chest and ribs not pursued; claimant alleged left shoulder injury with symptoms so severe she had been unable to use her left shoulder and arm in the four years since the accident; no muscle wasting or atrophy present; claimant refused to demonstrate range of movement in four of the six planes of motion; claimant alleged right shoulder now symptomatic due to overuse; Held – cervical spine injury satisfied diagnosis related estimate (DRE) II criteria due to presence of dysmetria (5%); range of motion in right shoulder normal; range of motion method of assessment could not be used for left shoulder due to claimant’s refusal to move and Review Panel not satisfied movements she did demonstrate were genuine; analogous condition and 2% impairment found which when combined with 3% for hearing loss resulted in 10% WPI not greater than 10%; Medical Assessment Certificates revoked due to difference in WPI figure.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the combined certificate issued by Medical Assessor Cameron dated 19 July 2022. 2. Revokes the certificate of Medical Assessor Cameron dated 22 May 2021. 3. Certifies that the degree of Tina Bounias permanent impairment resulting from the injuries caused by the motor accident on 13 January 2018 is not greater than 10% based on: (a) the Panel’s assessment of the injuries to the claimant’s neck, lower back, shoulders, chest, ribs and head, and (b) the certificate of Medical Assessor Howison dated 12 July 2022.

STATEMENT OF REASONS

INTRODUCTION

Tina Bounias was involved in a motor accident on 14 April 2018. She was the front seat passenger in a vehicle hit by a car that failed to obey a stop sign. The collision occurred on the claimant’s side of the car and the side airbags deployed.
On or about 21 February 2020, Ms Bounias made a claim for damages against NRMA the third-party insurer of the offending vehicle.
A medical dispute arose in the claim about the degree of Ms Bounias’ whole person impairment (WPI). That dispute was referred to the Disputes Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA).
On 22 May 2021, Medical Assessor Cameron assessed the degree of the claimant’s WPI at 2%. That assessment was combined with a 3% WPI assessment of the claimant’s hearing loss by Medical Assessor Howison.
The claimant was dissatisfied with the assessment that she had a WPI of only 5% and sought a review of Medical Assessor Cameron’s decision.
On 23 September 2022, a delegate of the President determined there was reasonable cause to suspect a material error in Medical Assessor Cameron’s certificate and on

30 September 2022 the President convened this Panel.

LEGISLATIVE FRAMEWORK

General

Ms Bounias’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21 of the MAI Act. The current version of the Guidelines is Version 9 which is effective from 28 November 2022.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron was asked to assess the following injuries:
(a)   head injury (possible closed head injury, occipital frontal headaches);
(b)   chest / left sided ribs – musculoligamentous strain;
(c)   lumbar spine – lumbosacral facet arthralgia;
(d)   right shoulder – musculoligamentous strain;
(e)   shoulder – brachialgia and trapezial, subacromial bursitis, subdeltoid bursitis, chronic neuropathic left upper extremity pain, and
(f)    cervical spine.
Medical Assessor Cameron takes the following history from the claimant:
(a)   the claimant lives with her partner and son;
(b)   at the time of the accident she worked as a chef;
(c)   her health was good at the time of the accident;
(d)   the accident occurred on her side of the car, the airbags went off and she thinks she lost consciousness briefly;
(e)   ambulance attended and the claimant was taken to hospital, assessed then discharged;
(f)    she went to the doctor two days later (on the Monday);
(g)   she has had continued symptoms of neck and left arm pain and she has had treatment from Dr Abraszko and Dr Nazha;
(h)   she had nerve blocks in March 202 which caused paralysis on the left side of her body. The second nerve block a week later led to breathing problems, and
(i)    she has had physiotherapy.
The claimant reported to Medical Assessor Cameron that her current symptoms included:
(a)   inability to lift her left arm;
(b)   neck and left shoulder pain;
(c)   numbness and pins and needles more so in the thumb and first two fingers in the left hand;
(d)   her left arm swells and changes colour;
(e)   she has loss of hearing in her left ear, and
(f)    she is not working, will drive only for short distances and her son and partner do the housework.
Ms Bounias says she is taking Lyrica, Lexapro as well as Nurofen, Panadol and heat patches.
Medical Assessor Cameron examined the claimant and provided the following determinations:
(a)   Ms Bounias sustained soft tissue injuries to her neck and left shoulder;
(b)   she has symptoms of hearing loss;
(c)   she probably had a rib fracture as well as soft tissue injuries to the chest;
(d)   she had no traumatic brain injury, and
(e)   her symptoms are difficult to ascribe to a particular injury and he considers she may have a “somatoform disorder”.
He assessed the claimant’s WPI as follows:
(a)   chest and rib - soft tissue and possible rib fracture – healed and therefore 0%;
(b)   left shoulder – movement was inconsistent there was no significant pathological cause and therefore by analogy 2% WPI mild crepitation, and
(c)   neck – soft tissue injury categorised as DRE I – 0%.

Other assessments

The Panel notes that Medical Assessor Howison assessed the claimant’s hearing loss at 3% WPI in a certificate dated 12 July 2022.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant submits that in respect of the neck injury, Medical Assessor Cameron has failed to provide adequate reasons:
(a)   while she concedes she does not have radiculopathy – she says she had non-verifiable radicular complaints which Medical Assessor Cameron has not addressed;
(b)   radiology undertaken on 8 September 2018 identified a left sided nerve root impingement at C5-7 which could be contributing to the radicular complaints;
(c)   hospital notes on the day of the accident mention numbness, tingling and weakness to the left side, and
(d)   Dr Abraszko supports the presence of radicular symptoms noting the claimant had altered sensation to touch with a pin prick test.
The claimant also argues that Medical Assessor Cameron found inconsistency but did not put this inconsistency to the claimant and allow her to respond. He did not, in his reasons, identify what was inconsistent with what. This is submitted to be a breach of procedural fairness.
In terms of the left shoulder impairment the claimant says the methodology required in the guidelines is that a goniometer must be used, measurements should be undertaken three times, active not passive range of motion should be used and if there is inconsistency the measurements of motion should not be used.
The claimant says there is no evidence that Medical Assessor Cameron tested range of motion with three consistent repetitions, he does not give reasons for why he is assessing by analogy, and he has quoted the wrong Guidelines.
In terms of the lumbar spine the claimant says the Medical Assessor has not addressed the issue of whether the claimant has lumbosacral facet arthralgia.

Insurer’s submissions

The insurer argues:
(a)   Medical Assessor Cameron has considered the claimant’s history but made his own assessment after an examination that Ms Bounias does not have radicular symptoms;
(b)   the insurer says there has been no breach of procedural fairness because his findings reflect his examination. The Panel notes the insurer does not mention cl 6.31 of the Guidelines;
(c)   the insurer says the reference to the wrong Guidelines is immaterial as both Guidelines have the same words, and
(d)   the insurer says the lumbar spine injury was not caused by the accident because there is no mention of it in the hospital notes.

Procedural matters

The Panel met on 1 December 2022 to discuss the proceedings. The Panel reported to the parties and noted Medical Assessor Cameron was asked to examine:
(a)   head injury (possible closed head injury, occipital frontal headaches) – the Panel noted that the claimant’s head injury from the side airbag led to a loss of hearing which has been assessed resulting in a 3% WPI. This assessment has not been challenged and the Panel is aware it will have to issue a combined certificate if the certificate of Medical Assessor Cameron is revoked.
The Panel noted the claimant’s submissions do not raise issue with Medical Assessor Cameron’s assessment of head injury. The Panel also noted that the assessment of headaches is found in the pain chapter (15) of AMA 4, which the Guidelines say is not to be used (cl 6.38). Subject to the submissions from the parties, the Panel advised it did not intend to consider the “head injury” further;
(b)   chest / left sided ribs – musculoligamentous strain – the Panel noted Medical Assessor Cameron found this injury had healed and attracted no WPI. The Panel noted the claimant’s submissions did not take issue with this assessment and that there is no recent medical evidence to suggest the claimant’s chest and left rib injury is producing any current impairment. Subject to submissions from the parties, the Panel advised it did not intend to consider the chest / left sided rib injury further;
(c)   lumbar spine – lumbosacral facet arthralgia – the Panel notes ground 4 in the claimant’s submissions and will assess the lumbar spine. The claimant was asked to take the Panel to the medical evidence from any treating doctor in relation to the lumbar spine after the accident;
(d)   right shoulder – musculo-ligamentous strain - the Panel noted that this may have been an error as the documentation indicated that the claimant has complained about left shoulder issues but not the right and Medical Assessor Cameron found a full and complete range of motion in the right shoulder. The claimant was asked to confirm whether she injured her right shoulder in the accident and if so, take the Panel to the medical evidence in relation to that right shoulder injury and point to any evidence that the right shoulder is currently impaired;
(e)   left shoulder – brachialgia and trapezial, subacromial bursitis, subdeltoid bursitis, chronic neuropathic left upper extremity pain – this is one of the main areas of contention between the parties and will need to be assessed, and
(f)    cervical spine – the issue between the parties is whether the claimant’s neck injury should be categorised as DRE category I or DRE category II and again this injury will need to be assessed.
The Panel noted the decision of the Commission with regards to the report of Dr Ho. As he is not an Authorised Health Practitioner within the meaning of s 7.52 of the MAI Act, the Panel cannot consider his report any further.

Further submissions

The claimant provided further submissions (AD4) which the Panel has considered as follows:
(a)   the claimant made no further submissions regarding the head injury and chest and rib injuries;
(b)
the claimant acknowledged her major complaints were from a cervical spine injury and says there are “references throughout the available clinical material” namely a reference in the clinical records of Nepean Hospital to “numbness/tingling/weakness to the left side of body” which the claimant says should be read as an injury to the upper left extremity, left cervical spine and left lumbar spine injury. The claimant also refers to an

11 February 2021 note from Dr Voutos which refers to “spinal muscles are in constant spasm with compensatory spinal scoliosis”. The claimant says this is evidence of a lumbar spine injury, and
(c)   the claimant says she sustained a consequential injury to her right shoulder and has lost a range of motion in her shoulder. She said she was examined by her general practitioner (GP) on 15 December 2021 and her GP would be writing a report about this and arranging an ultrasound. The claimant’s solicitor then advised the Panel the claimant would not be obtaining a report from GP, Dr Peter Voutos.
The insurer has also provided final submissions (AD5) which say:
(a)   the head injury does not need to be considered;
(b)   the chest and rib injuries need not be considered;
(c)   the Nepean Hospital notes do not mention lumbar spine injury and if there was lumbar spine pain one would expect there to have been a note;
(d)   the 11 February 2021 note from Dr Voutos cannot be found in the clinical notes and appears to be from a report he wrote to NRMA. The insurer says it cannot be interpreted in the way suggested by the claimant without the notes themselves, and
(e)   the insurer notes the right shoulder injury allegation, and said that if the claimant intends to rely on new evidence about it that was not before Medical Assessor Cameron the insurer requested time to consider it and respond if necessary.

Scope of the Review

In terms of the documents:
(a)   the Panel is not considering the report of Dr Ho as he is not an AHP;
(b)   the claimant is not relying on a further report from Dr Voutos, and
(c)   the Panel has considered the bundles of documents from the parties (AD2 from the claimant and AD4 from the insurer) and the additional submissions.
In terms of the injuries to be assessed, the Panel noted s 7.25 of the MAI Act. This section, which is in harmony with the guiding principle of s 42 of the Personal Injury Commission Act 2020, provides that if the parties agree about the degree of permanent impairment resulting from a particular injury or causation of a particular injury, it need not be assessed.
The Panel expressed its preliminary view that the head injury would not be considered further (on the basis Medical Assessor Howison had assessed hearing loss) and that the chest and rib injury would also not be considered (because they had attracted a 0% WPI). The claimant did not object to that proposal and the insurer’s further submissions agreed they did not need to be assessed further.
The Panel therefore has proceeded on the basis it would be assessing the claimant’s left and right shoulder, cervical spine and lumbar spine.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant’s application for personal injury benefits was dated 23 April 2018.[5] In it the claimant says:
“I am suffering hearing loss of my left ear, a fractured left rib, cannot feel the left side of my face and arm, have restricted movement of my left arm and loss of strength of my left hand with pains and needles.”
[5] Page 41 of the claimant’s bundle.
The claimant says she was taken to Nepean Hospital and discharged later in the day and denies any previous relevant illnesses or injuries. The Panel notes there is no mention here of a right shoulder, neck or lower back injury.
The certificate of capacity attached to the claim form is dated 23 April 2018 and is signed by Dr Garg.[6] He says he first saw the claimant on 16 April 2018 and noted left shoulder pain, left upper limb altered sensation, left hearing loss and left chest wall pain. Again, the Panel notes there is no mention of right shoulder, neck or back injuries in this document. He advised certain restrictions at work (lifting, carrying, pushing and pulling with the left arm).
[6] Page 47 of the claimant’s bundle.
The claimant has provided her submissions in support of her damages claim dated

13 April 2021.[7] She lists at [4] her injuries which include:
(a)   left sided lower back with lumbosacral arthralgia;
(b)   left sided frontal headaches;
(c)   whiplash injury to neck;
(d)   seat belt injury to left shoulder;
(e)   loss of hearing, and
(f)    post-traumatic stress disorder, anxiety disorder, generalised anxiety disorder and panic disorder.
[7] Page 31 of the claimant’s bundle.
Her list of disabilities at [5] refers to constant pain in the neck, pain in the neck radiating into the left shoulder, hearing loss, chronic pain and matters relevant to her activities of daily living, capacity to work and her psychological injuries. There is no specific mention here of right shoulder pain or disability or lower back pain or disability.
The claimant gave a statement as part of the assessment of her damages claim which is dated 12 April 2021.[8] She says she was a passenger in her partner’s car and that the insured driver “came out of nowhere”. She says her partner got out of the car to talk to “the defendant” and that she “began screaming”.
[8] Page 38 of the claimant’s bundle.
Ms Bounias says she did not want to go to hospital in the ambulance but that her sister drover her to hospital later that evening. She said she was told when she was there to see a specialist but because of “my anxiety” she returned home.
The claimant refers to treatment from her GP, a physiotherapist and a psychologist. She confirms she had two unsuccessful nerve blocks.
Her statement deals with matters relevant to economic loss, domestic assistance and her psychological issues.
At paragraph 49 of her statement, she says she has been diagnosed with:
(a)   whiplash injury to her neck;
(b)   seat belt injury to her left shoulder;
(c)   left sided occipito-frontal headaches;
(d)   left sided low back pain;
(e)   post-traumatic stress disorder;
(f)    80% hearing loss on the left side;
(g)   C4-C7 nerve impingement and a bulging disc, and
(h)   reliance on analgesia and anti-inflammatories.

Hospital

The Nepean Hospital notes from the day of the accident include this history (page 164):
“42 year old trauma – restrained front seat passenger. Car t-boned by another vehicle. Occurred this morning. Side airbag deployed into left side of head. Denies [loss of consciousness]. Walked following the incident. Declined ambulance at scene but now pain in neck, ongoing tinnitus and pain in left upper limb so presented to hospital.”

At page 165 is this additional history:
“Able to move C-spine through full [range of motion] with muscular tenderness. Right upper limb [neurovascular] intact, full range of motion, nil injury. Left upper limb complaining of moving paraesthesia in different distributions – originally in distal forearm and hand. Not conforming to dermatome. Unable to elevate shoulder beyond horizontal [the Panel notes this would be beyond 90 degrees) due to pain. Weak flexion and abduction of digits. Hand mildly swollen. Abdomen soft non-tender. Pelvis non-tender. Lower limbs full range of motion, [neurovascular] intact. Small amount bruising left lateral malleolus without deformity. Nil injury or tenderness remainder of back.”
The claimant’s X-rays and scans reported as normal, and it appears the claimant was to be admitted for observation of her left arm symptoms but the claimant “wishes to discharge against advice and has signed appropriate form”.
On page 169 is a similar note with additional detail:
“[Complains of] neck pain + left sided shoulder and whole arm pain with pains and needles down whole arm. Also complains of [left] hip pain – has been able to mobilise normally. [Complains of] pain down [left] side of chest and abdomen … No back pain. [Complains of] severe headache.”
At page 170 is a note of, “no thoracic or lumbar tenderness”.
The Panel’s comment is that the hospital notes specifically address thoracic and back pain recording in several places that there was none. There is also no mention of anxiety symptoms which the Panel notes was the reason the claimant gave in her statement for leaving the hospital. The Panel would expect there to be some comment.

Hearing loss

Dr Ananda on 23 July 2018 wrote to the claimant’s GP diagnosing acoustic trauma to the left ear and possible “mild hearing loss”. He arranged for testing of Ms Bounais’ hearing.
In a second letter dated 6 November 2018 he had received the results and indicated the hearing loss was “relatively moderate” and it was unlikely to deteriorate.
Dr Scoppa an ear nose and throat surgeon (ENT) provided a report dated

17 November 2019 to the claimant’s solicitor. The claimant informed Dr Scoppa that it was the side airbag that deployed, and she was struck on the side of the head by this airbag. She noticed hearing loss soon after but did not report it because she was focussed on the neck and left arm pain.
Dr Scoppa found 91.4% loss of hearing in the left, 5.7% in the right and a binaural hearing loss of 21.7% overall. He did note inconsistent audiograms and requested a further test be caried out that was more objective.
On 19 November 2020 further audiological assessment was undertaken (page 78 claimant’s bundle) which ruled out any severe to profound hearing loss. There was normal hearing in the right ear and mild to moderate hearing loss in the left ear

“Ms Bounias’ responses for bone conduction threshold assessment were inconsistent after a few reinstructions and no valid results could be obtained”. On speech testing “the results for the left ear were inconsistent with the audiogram”.
Dr Scoppa’s recalculation of hearing loss based on those figures was 28% for the left ear, 2% for the right ear and a binaural hearing loss of 9.2% overall.
He assessed WPI at 3% for the lost hearing and 8% for vestibular dysfunction.
There is a further report from Dr Scoppa (page 410) following the medical assessment which deals with the assessment of vertigo and balance noting that vertigo comes and goes and therefore whether it is present at the time of the assessment will determine whether an impairment percentage can be given. The Panel notes that while

Dr Scoppa found evidence of vertigo at his assessment, Medical Assessor Howison did not.

Pre-accident records Tristar – Mildura

The records from this practice span the time from 31 December 2009 to

2 December 2017. There are regular complaints in more recent years of anxiety and medication was prescribed.
On 30 July 2014 the claimant attended for pain in her left shoulder back and chest. In relation to the left shoulder on examination the doctor notes, “not red, not swollen, not hot, tender, no laceration, no contusion, no effusion, restriction present”.
On 12 August 2014 the claimant attended with “muscle pain and shoulder pains and she is getting worse according to her”.
In March 2015 the claimant attended concerning a “problem in her left shoulder for last 8 months, pain originated side of her neck and radiates down her shoulder, collar bone and down her arm to her arms, she cannot sleep at night”.

General practitioner records Primacare - Roselands

The claimant attends the Primacare Family Medical Centre in Roselands where she has received treatment from Dr Garg and others. Their notes have been provided[9] and reveal:
[9] Page 366 of the insurer’s bundle.
(a)   the first attendance was in April 2010;
(b)   six further attendances and a note on 30 April 2013 that the claimant was living interstate;
(c)   16 April 2018 – “Saturday MVA passenger in vehicle. T-boned on passenger side just behind patient’s side door. Suspected fracture of ribs. Right upper limb pain and numbness. CT and MRI of brain – no abnormality detected. Needs certificate for partner as carer”;
(d)   20 April 2018 – “Centrelink medical certificate – left rib fracture, left sided forearm neuroraxia – altered sensation, limited abduction to 90 degrees, decreased hearing left ear”;
(e)   26 April 2018 – the attendance was to review the medical certificate and review the injuries. There is mention of the hearing issues, loss of sensation in the left arm and left sided rib pain. The left shoulder had limited abduction due to pain;
(f)    4 May 2018 – further consultation regarding hearing and shoulder issues with paraesthesia and less hand strength and the left rib pain was improving. The claimant was referred to Dr Hassam (neurologist);
(g)   10 May 2018 – the claimant attended with her audiology tests showing a “significant hearing loss” in the left ear and requesting a different referral as the claimant could not get an early appointment with Dr Hassam. The claimant was referred to Dr Ananda (ENT) and Dr Kokkinos (neurologist);
(h)   24 May 2018 - the claimant attended for “left shoulder pain and weakness” and she said she was having nightmares. On palpation there was significant pain in the shoulder capsule and glenohumeral joint and “weakness with finger grip and wrist flexion / extension in the upper limb persisting”;
(i)    28 July 2018, the claimant had seen a shoulder specialist and was having nerve conduction studies and an MRI. A similar attendance on July 12 noted the claimant had seen a physiotherapist;
(j)    9 August 2018 the claimant was still having physiotherapy for neck stiffness and pain and was awaiting the MRI;
(k)   6 September 2018 – there is an extraordinarily long and detailed note of a case conference with Alyssa Smith a rehabilitation consultant for Workfocus Australia this reports left shoulder, paraesthesia in neck and left shoulder, weakness and pain in the left hand, having an MRI tomorrow, difficulties with sleeping, ear pains, anxiety and so on. A prescription for Lyrica was provided a referral to Dr Fred Nouh (orthopaedic surgeon) and Reid Psychology were given. In this very lengthy note, there is no reference to lumbar spine pain or symptoms or any issues with the right shoulder;
(l)    there is a letter dated 19 September 2018 from South West Physiotherapy to Dr Garg.[10] The physiotherapist notes the claimant’s progress has been slow. She refers to the neck injury and left sided neural compromise but not lumbar pain, and
(m)
4 October 2018 – there is reference to C5/6/7 impingement in the neck.

Dr Hassan had undertaken the nerve conduction studies which were normal. The claimant was not tolerating Lyrica and was given a referral to Dr Winder (neurosurgeon) and Dr Murrell (orthopaedic shoulder surgeon). This is the last treatment related note. There are several others leading up to 12 July 2019 but these relate to paperwork and the sending of copies of notes.
[10] Page 52 of the bundle.
The insurer obtained a further copy of the notes up to 25 February 2022[11] but again there does not appear to be any record of any treatment to the claimant after

4 October 2018.
[11] Page 367 of the insurer’s bundle.
There is a handwritten note from Dr Peter Voutos dated 15 October 2020 “to whom it may concern”[12] which refers to ongoing neck and left arm pain, post-traumatic stress as well as left ear tinnitus, loss of hearing and vertigo. There is no reference to back pain or right arm pain in this note.
[12] Page 77 of the claimant’s bundle.
A note from Dr Voutos to NRMA dated 11 February 2021[13] advising the insurer that the claimant’s condition is worse and that she needed urgent treatment from physiotherapist Nick Skalidas and he sought approval for eight sessions. The corresponding referral[14] reads as follows “Severe neck pain left arm pain with compensatory scoliosis developing and significant shoulder girdle muscle spasms and tenderness which requires therapy in the form of deep tissue massage dry needling a mobilising”.
[13] Page 88 of the claimant’s bundle.
[14] Page 89 of the claimant’s bundle.

Specialist correspondence

On 26 May 2018, Dr Hassan, neurologist wrote to Dr Garg[15] in respect of the claimant’s complaints of neck pain, left upper limb pain and numbness and difficulty with left upper limb movement. He refers to eye surgery from a previous car accident. On examination the claimant had her left arm in a sling, and she had significant range of motion at the left shoulder, left elbow, left wrist and all fingers. The upper limb reflexes were normal and there was no muscle atrophy. He refers to the claimant’s symptoms as “extensive” but thought there were due to “soft tissue injury with secondary pain causing limited movements”. He requested MRIs and nerve conduction studies.
[15] Page 159 of the claimant’s bundle.
A further letter from Dr Hassan to Dr Garg was sent on 19 September 2018.[16] He noted the MRI showed only “mild degenerative changes” and that the left brachial plexus MRI was normal. The claimant complained to Dr Hassan of pain radiating to her lower back and paraesthesia of the left lower limb. Dr Hassan said the nerve conduction studies and needle EMG examination were “completely normal”. His advice was for conservative management noting that she was to see a shoulder specialist and that if she had continued pain referral to a multidisciplinary pain management clinic should be considered.
[16] Page 172 of the claimant’s bundle.
The orthopaedic surgeon the claimant was referred to was Dr Nouh. The referral[17] (dated 6 September 2018) refers to stiffness and shoulder pain, weakness in the hand and movements. Dr Nouh wrote to Dr Garg on 10 October 2018.[18] He has a history of persistent pain in the neck, left shoulder and numbness in the left hand with difficulty lifting her left shoulder. He says she wears a sling for relief.
[17] Page 247 of the claimant’s bundle.
[18] Page 175 of the claimant’s bundle.
Dr Nouh noted “an irritable left shoulder” and “positive impingement signs”. He considered the MRI of the shoulder and thought her pain was more likely due to cervical spine radiculopathy. He wanted a further MRI done and offered her a cortisone injection which she declined. The MRI was done on 19 November 2018 but there is no further letter from Dr Nouh to Dr Garg.
Dr Voutos referred the claimant to Dr Abraskzo (neurosurgeon and spinal surgeon) on 25 October 2018[19] and refers to neck injury, left arm function and disability and significant pain. The Panel notes there is no reference to lower back.
[19] Page 110 of the claimant’s bundle.
The claimant attended Dr Abraszko on 6 February 2019 and Dr Abraszko wrote to

Dr Voutos on that day.[20] She has a history of the development of neck, left shoulder and left arm pain. The claimant could not move the left hand and left shoulder and said her left hand is getting “white” and “cold or hot”. Reflexes were present and sensation was different in the whole of the left hand to pinprick and light touch. The Panel notes this does not correspond to a dermatomal distribution. Dr Abraszko considered the claimant had complex regional pain syndrome on the left side.
[20] Page 90 of the claimant’s bundle.
Dr Abraszko referred the claimant to the pain specialist Dr Nazha referring to a neck injury and left shoulder injury and the development of a complex regional pain syndrome.[21] She does not mention the lower back or right shoulder.
[21] Page 93 of the claimant’s bundle.
The pain diagram completed by the claimant on the patient registration form[22] has the left arm coloured in from the neck down to the scapular and all the way to the fingers. There is a small area coloured in what appears to be the lower thoracic spine. The accompanying written answers on the form do not mention thoracic or lower back pain but focus on the neck, left shoulder and left arm.
[22] Page 99 of the claimant’s bundle and dated 6 February 2019.
Dr Nazha wrote to Dr Abraszko on 9 April 2019[23] describing the claimant’s pain as being in the “cervical spine down her shoulder and entire upper limb. It is in a non-dermatomal distribution and even involves her armpit. She describes pins and needles, numbness and intermittent shooting sensation”. The claimant was not using her arm much “with it constantly in a sling”. She had a feeling of weakness and heaviness in her left hand with intermittent swelling and slightly paler than the right hand. He notes the MRI and the C5-C7 findings which did not explain the claimant’s non-dermatomal symptoms.
[23] Page 117 of the claimant’s bundle.
When examined by Dr Nazha, the claimant could not demonstrate movement of her left upper limb beyond 30 degrees abduction and flexion and “even the slightest of movements results in pain”. He noted some colour asymmetry and slight swelling and evidence of increased palm sweating but no trophic changes. There was decreased pinprick sensation but not to light touch over the whole of the left upper limb.
Dr Nazha wrote to Dr Voutos on 20 May 2019 referring to signs and symptoms in the left upper limb and while he thought these symptoms reflected a chronic regional pain syndrome he felt it could also have been neurogenic thoracic outlet syndrome. He recommended diagnostic injections. His other reports mention only neck and left shoulder and arm symptoms there is nothing in his reports about lower back pain or right shoulder pain.
Dr Nazha reported again to Dr Voutos on 30 January 2020 noting that a compound analgesic cream was trialled with no benefit, and she had been approved for the diagnostic injections he requested. The left stellate ganglion block was done on

2 March 2020 and the interscalene nerve block was done on 9 March 2020. She apparently had an allergic reaction to the contrast dye but there was partial relief from both injections. He wanted to repeat the nerve conduction studies noting her “severe persistent left-sided upper limb pain … has remained largely undiagnosed at this stage”. The claimant wished to discuss the matter with her GP and no arrangements were made for her to return.
He reports on the two diagnostic injections in a letter to Dr Voutos dated 20 April 2020. Due to an allergic reaction to the dye and inability to tolerate the procedure this did not give any clear results. He wanted to repeat the nerve conduction studies but noted that the claimant was not motivated to return to see him.

Other records

The insurer has provided 12 certificates of capacity. The first is dated 4 July 2018 (page 383) and the last is dated 11 June 2020. There is no mention of right shoulder or right upper arm symptoms or lumbar spine issues in any of them.
The insurer has provided[24] the claimant’s pharmaceutical benefits records which show prescriptions of painkillers on 25 June 2013 (Panadeine forte and Oxycondon) and antidepressants (Escitalopram or Lexapro) from 15 March 2017 onwards.
[24] Page 28 of the claimant’s bundle.
The insurer has also provided the claimant’s Centrelink records (page 34) which refers to medical certificates from Dr Kazi (Tristar Mildura) dated 6 August 2014 and

18 November 2014. These were regarding the claimant’s unfitness for work from

17 November 2014 to 17 January 2015 for “shoulder and upper arm disorder” and from 30 July 2014 to 30 August 2014 due to “musculo-skeletal disorders”. There is also a Centrelink certificate of unfitness for work from Shanth Ram (Tristar Mildura) for depression and anxiety.

Radiology

The claimant had a left shoulder ultrasound on 1 May 2018 of the left shoulder[25] with the clinical history of “inability to abduct shoulder ? rotator cuff tear”. The report found no tendon tears, a possible paralabral cyst and evidence of subacromial / subdeltoid bursitis.
[25] Page 129 of the claimant’s bundle.
On 8 September 2018, the claimant had an MRI scan of her neck and brachial plexus.[26] The clinical indication for this radiology was reported as “left upper limb pain and numbness with difficulty movements [sic] since MVA”. The comment was “left paracentral disc osteophytes and uncovertebral joint hypertrophy which together results in predominantly left neural exit foraminal narrowing and potential for C5 – C7 nerve root impingement which is most likely contributing to the symptoms”.
[26] Page 50 of the claimant’s bundle.
An X-ray and MRI of the left shoulder occurred at the request of Dr Nouh on

19 November 2018. The conclusion was possible mild bursitis but no significant rotator cuff pathology.
The Panel notes, there is no lumbar spine radiology or right shoulder imaging from this time.

Medico-legal reports

Within the insurer’s bundle[27] is a document from Workfocus Australia following an assessment on 17 August 2018. The injured body parts were said to be “left upper limb, cervical and lumbar spine injuries and hearing loss in left ear”. The author of this report, Elyssa Smith took a history from the claimant that she saw her doctor on

16 April 2018 because she was having pain in her neck, left upper limb and back as well as hearing loss.
[27] Page 301.
The claimant told Ms Smith she had lost 82% of her hearing and might require surgery.
The claimant reported current pain in her neck, left shoulder joint, shoulder blade, underarm and lumbar spine.
Ms Smith noted that there were significant pain behaviours.
On 3 November 2018 Ms Smith met with the claimant again and noted that Ms Bounias was using a sling. The second rehabilitation plan completed on 19 December 2018 refers to cervical spine, left shoulder and hand pain only at page 322 but on page 323 driving for more than 30 minutes was said to be difficult due to lumbar and cervical pain. There are further rehabilitation plans that repeat this point verbatim but there is no other reference to lumbar spine pain.
Dr Dixon provided a report to the claimant’s solicitor dated 11 November 2019. He has a consistent history of the accident and notes “there was no head injury”.
Dr Dixon takes a history of a whiplash injury with left shoulder pain radiating down the arm with tingling in the thumb and index finger. He also notes “She later developed pain down the left lower back region adjacent to the lumbosacral facet joint region”.

Dr Dixon records the claimant’s difficulties with activities of daily living and has help around the home.
She had declined a cortisone injection for apparent subacromial bursitis but was planning the nerve blocks.
The claimant reported radiating neck pain, intermittent paraesthesia, disturbed sleep, difficulty driving, lifting her left arm and moving her left arm. Ms Bounias also complained of pain radiating from her lower back to the facet area.
Dr Dixon diagnosed whiplash injury, a seat belt left shoulder injury, headaches, low back pain, post-traumatic stress disorder, and 80% loss of hearing on the left side.
While he was not of the view Ms Bounias’ injuries had stabilised, he assessed 5% WPI to the neck (DRE category II), 12% WPI for the left shoulder and DRE category I (0%) for the lower back.

Dr Teoh psychiatrist on 22 November 2019 advised the claimant’s solicitor that

Ms Bounias has a generalised anxiety and panic disorder.[28] He has a history of physical injuries including neck, left shoulder and back. He assessed the claimant at 15% WPI.
[28] His report is at page 68 of the claimant’s bundle.
Dr Mitchell provided a report to the insurer dated 20 February 2020 following an appointment on 3 February 2020.[29]
[29] Page 52 of the insurer’s bundle.
Dr Mitchell has a consistent history of the accident noting the side airbags deployed causing trauma to the left side of the claimant’s face.
Dr Mitchell has a consistent history of the treatment provided to the claimant noting the referral to Dr Hassan and his advice there was no neurological cause for her problems. Dr Mitchell refers to a consultation with Dr Nouh who considered the symptoms were due to a cervical spine radiculopathy, the referral to Dr Abraska who referred the claimant for pain management and Dr Nazha the pain specialist who considered a neurogenic thoracic outlet syndrome might be responsible.
The claimant reported to Dr Mitchell that she had pain in the neck, the left shoulder and left arm (and deafness and tinnitus in the left ear). She did not report pain or symptoms in the right shoulder or lower back.
Dr Mitchell records that the claimant’s physical responses were inconsistent “due to voluntary self-restraint”. The right shoulder was normal, but no measurements were taken of the left shoulder because “no movement allowed whatsoever in the left shoulder” and movements in the neck and lower back were “inconsistently reduced”.
Dr Mitchell considered there was no clear diagnosis to explain Ms Bounias’ symptoms and signs. She thought at least pre-existing degenerative changes in the cervical spine could have been aggravated.
Dr Vickery psychiatrist provided a report date 29 July 2020. While he was examining the claimant for the purpose of her alleged psychiatric injury, he did take a history of the claimant’s current physical symptoms[30] of pain in the neck, into the left shoulder and left arm and pins and needles in her thumbs and fingers. There is no mention of right shoulder symptoms or lower back symptoms.
[30] Page 71 of the insurer’s bundle.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR BERRY

Ms Bounias attended on 2 February 2023 unaccompanied and she confirmed that she is 47 years of age and dominantly right-handed.
Ms Bounias was not using the sling that was a feature in many of her early presentations.

History of accident

Ms Bounias gave a history that she was a front seat passenger in a Navarro utility pulling a trailer with a Corvette motor vehicle sitting on top of the trailer. Her partner, Peter was the driver and as he was making a right hand turn from the Great Western Highway to Brabham Drive, Eastern Creek their vehicle was hit on the left-hand side by a speeding commodore which failed to stop at a red signal light.
The airbags (on the left) had deployed and Ms Bounias was shaken and dazed and she thought she may have lost consciousness for a few moments. She was helped out of the vehicle by her partner and other bystanders. She explained that she injured her left ear, left shoulder and neck. Ambulance attended the scene, and she was assessed but was not taken to hospital. Family members took her to Nepean Hospital, later in the day after the vehicle was towed from the scene.
She recalls that she was discharged from hospital in the early hours after observation. She told me that due to the lapse of time it was difficult to recall the exact details, but she recalls that she did see her GP a few days later and was prescribed medications for pain and referred for physiotherapy. She had pain in her neck, left shoulder and the left side of her chest. When I asked her, she said there was no injury at that time to her right shoulder and no injury to her lumbar spine.
Ms Bounias told me that she was unable to go back to work. She was subsequently referred to a pain specialist and a neurologist. She told me that she underwent two spinal fusions[31] and these paralysed the left side of her body.
[31] The Panel notes that these were actually injections into the cervical spine from the anterior approach and also from the left lateral approach. The records suggest the claimant had an allergic reaction to the contrast dye.

Current situation

Ms Bounias told me that she has not returned to any form of work since the accident. She still has difficulty turning to the left side.
The claimant did not report many of the symptoms that have been reported in the early years after this accident. She denied left arm weakness, loss of sensation or numbness in the left arm, variations in colour and feelings of hot or cold in her left arm and hands and said there were no pins and needles. She confirmed she experiences pain down the left arm and cannot lift her left arm properly. Ms Bounias no longer had pain in her chest or rib area.
Approximately a year ago, Ms Bounias reports she developed pain in the right shoulder and a feeling of swelling around the right elbow. She also developed at this time, back pain in her lower back on the right side which spreads to the left and into the left groin. She clearly said when questioned that this lower back, right shoulder and arm pain began approximately one year ago (this would be four years after the accident). She told me that she uses her right arm for all, every-day activities because of the problems she has with her left arm.

Current treatment

Ms Bounias takes Lyrica, Endep, Nurofen and Panadol. She also takes Capoten and Amitriptyline.

Past history

There is no history of previous injuries to her neck, shoulders and back that she can remember.

Work and social history

Ms Bounias told me that she completed Year 12 and then worked for Retravision in data entry. She moved to Mildura in 2011 when she married. At the time of the accident she was employed by Canteen Solutions at a school canteen.
Ms Bounias is a divorced woman with two children. At the present time she is living with her son after moving out of her partner’s home.

Physical examination

Ms Bounias was 155 cm in height and 63kg in weight. She walked with a slight left-sided limp. The Panel notes that none of the previous examiners record a limp.

Cervical spine

The claimant’s neck was examined, and measurements taken in the three planes of motion required by the Guidelines:[32]
(a)   rotation - she was able to turn her head to the right side normally, but the left side was restricted to half the normal range;
(b)   flexion and extension were two thirds of the normal range, and
(c)   lateral flexion left and right – reduced by half on both sides.
[32] Table 6.8.
The claimant was tender in the left paraspinal muscles but there was no muscle guarding and no muscle spasm and no alteration of spinal contour and in particular no scoliosis was found in the upper parts of the spine.[33]
[33] Dr Voutos in his letter to NRMA.

Upper extremities

Reflexes in both arms were present, brisk and equal.
There was no muscle wasting in any of the left or right shoulder musculature and measurements of the upper arm and forearm were the same on the left and right indicating no muscle atrophy.
There were no sensory changes which could be reproduced on light touch testing.

Shoulders

The claimant demonstrated a normal range of active movement in the right shoulder measured with a goniometer. She was able to demonstrate a normal range of flexion, extension, abduction, adduction, internal rotation and external rotation on three separate occasions.
The claimant’s left shoulder active movement was also measured three times with a goniometer. Abduction was measured at 40 degrees and flexion at 40 degrees.
Ms Bounias could not move any further and said this was because of pain and she was doing her best. Ms Bounias refused to demonstrate extension, adduction, internal or external rotation and again said this was because of pain.
Ms Bounias said she does everything with her right arm and using her right shoulder because of the pain she has in her left arm and left shoulder.

Thoracolumbar spine

The claimant demonstrated half the normal range of flexion, and no extension at all.
Ms Bounias could not explain why she was unable to undertake the extension movement. She had half the normal range of rotation bilaterally.
There was flattening of the lumbar lordosis but no paraspinal muscle spasm. There was no guarding present. There was no evidence of scoliosis in the lower part of the spine.

Lower extremities

An examination of the claimant’s legs was undertaken with the following findings:
(a)   the claimant demonstrated 70 degrees of straight leg raising on both sides;
(b)   lower limb reflexes were present, brisk and equal;
(c)   there was no sensory disturbance reproduced on specific light touch testing, and
(d)   there was no muscle wasting evident in the calf or in the thigh in either limb. The measurements were equal on both sides.
The examination did not reveal any reason for the claimant’s slight left-sided limp.

WHAT INJURIES DID THE CLAIMANT SUSTAIN IN THE ACCIDENT?

Ribs, chest and head

The Panel is satisfied that the claimant injured her ribs and chest in the accident. In the light of the claimant’s absence of submissions concerning these injuries, the insurer’s position, and the claimant’s report of symptoms, the Panel is of the view that the claimant has recovered from these injuries.
The Panel is also satisfied that there are no other sequelae from the claimant’s head injury other than the claimant’s hearing loss. The claimant has made no further submissions, she did not complain to Medical Assessor Berry of any other complaints in the head and the insurer has accepted the hearing loss assessment.

Neck

The Panel is satisfied that the claimant injured her neck in the accident. Her initial attendance at Nepean Hospital confirms complaints of neck pain at that time. The medical records thereafter, the claim form and the certificate of capacity have then focused on the claimant’s left shoulder, arm and hand symptoms.
The Panel notes the claimant has degenerative changes in her cervical spine and it is therefore the Panel’s view that the claimant has sustained soft tissue injuries on a background of these degenerative changes.

Back

While there are infrequent mentions of lumbar spine or back pain in the early records, these appear to be in the context of referred pain from the neck and first occur in August 2018 (Workfocus) and September 2018 (Dr Hassan) more than four months after the accident. Back pain is mentioned in the medico-legal reports of Dr Dixon and Dr Teoh for the claimant but not by Dr Mitchell or Dr Vickery for the insurer.
The claimant told Medical Assessor Berry her lower back pain has come on in the last year (this would be four years after the accident) and this was clarified by Medical Assessor Berry with the claimant on two occasions.
Ms Bounias denied any symptoms in the lower back at the time of the accident, there is no report in the hospital notes, a back injury is not mentioned in the claim form or in the certificates of fitness and there has been no radiological study undertaken of the claimant’s back.
The Panel is not therefore satisfied that the claimant sustained a frank or specific injury to her back in the accident. If she had, the Panel would expect her treating doctors to have made a note of it and investigated it. The Panel would also have expected the claimant to include it in her claim form.

Right shoulder

The claimant says she has been using her right arm for all her activities because of the problems in her left. She says she started experiencing symptoms in her right arm a year ago.
The claimant was invited to but has provided no medical evidence to support an injury to the right shoulder. The Panel is not therefore satisfied that the claimant injured her right shoulder in the accident or has sustained an overuse type injury as a result of any left shoulder injury.
Noting the findings by Medical Assessor Berry of a full range of right shoulder motion in any event (and therefore no impairment), the Panel does not propose to engage further with the issue of causation of this injury.

Left shoulder and upper limb

The claimant has reported left shoulder and left upper limb symptoms since the time of the accident. It is recorded in the hospital notes, the claim form and the certificates of capacity.
The Panel notes that those who have treated the claimant in the nearly five years since the accident are unable to offer a definitive explanation for these symptoms. Dr Hassan (neurologist) was of the view the symptoms were not explained by the mild degenerative changes in the claimant’s cervical spine. Dr Nouh (orthopaedic surgeon) was of the view that the symptoms were not explained by the minor findings in her shoulder radiology and therefore had to be explained by the neck injury. Dr Nazha (pain physician) did not come to a concluded view due to his incomplete testing.
The Panel notes the mechanism of the accident was an impact to the passenger side of the car and the claimant was sitting in the front passenger seat. The claimant was wearing a seatbelt and the seatbelt therefore was over her left shoulder. The Panel also notes that the passenger side airbags deployed which caused an injury to the claimant’s head and resultant hearing loss. The Panel is therefore prepared to accept that the claimant could have sustained an injury to her left shoulder in this accident and did sustain an injury to her left shoulder.

WHAT IS THE IMPAIRMENT RESULTING FROM THE INJURIES?

Introductory remarks

The claimant makes a number of submissions concerning findings (neurological or radicular) by the claimant’s doctors at various times. The Panel notes that cl 6.21 of the Guidelines says that “the evaluation should only consider the impairment as it is at the time of the assessment”.
The Panel also notes the function of a Medical Assessor and this Panel is not to resolve a dispute between experts, but to form their own expert opinion based on a consideration of the records, the findings on examination (at the time of the assessment) and the history given by the claimant.[34]
[34] See for example Basten JA in Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 at 63.
The claimant’s head injury has recovered leaving no impairment other than that in connection with her hearing loss. The 3% WPI from Medical Assessor Howison will be added to the WPI found by the Panel.

Injuries with no impairment

The claimant’s chest and rib injuries have resolved with no ongoing symptomatology there is therefore no permanent impairment in respect of those injuries.
Because the Panel has found there was no injury to the claimant’s lower back in the accident there is no WPI to be assessed in respect of the lumbar spine.
While the Panel was not satisfied the claimant has a right shoulder injury, the Panel notes that on the basis she had a full range of shoulder motion when examined by Medical Assessor Berry, Ms Bounias would be assessed with a 0% WPI in any event.

Cervicothoracic spine

Assessment of the spine required consideration of Chapter 3 of AMA 4. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
There are five diagnostic related categories and a number of indicia provided (see Table 6.7). The first is DRE category I which is selected if there are symptoms which may include pain. Ms Bounias clearly has pain.
To qualify for a classification of DRE category II requires there to be:
(a)   pain with guarding (there was no guarding on examination by Medical Assessor Berry), or
(b)   non-uniform range of motion – there was dysmetria found by Medical Assessor Berry when rotation of the neck to the left and right was compared, or
(c)   non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling) – many of the claimant’s earlier symptoms have resolved (such as numbness, pins and needles) however Ms Bounias complains of pain down her left arm;
(ii)which follows the distribution of a specific nerve root or dermatomal pattern – the Panel notes that the symptoms present on the day of the accident when the claimant presented to hospital were noted not to conform to a dermatomal pattern. The Panel has commented that the symptoms recorded by Dr Abraszko did not conform to a dermatomal pattern and that Dr Nazha remarked that the claimant’s left arm symptoms did not follow a dermatomal distribution, but
(iii)where there is no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes – there were no objective clinical findings of radiculopathy found by Medical Assessor Berry. There was no loss of sensation, diminished power or reflexes on examination.
Because of the presence of dysmetria, the claimant falls into DRE category II which attracts a WPI of 5%. Due to the absence of any of the signs of radiculopathy as prescribed by cl 6.138 of the Guidelines (pain in arm is not a sign of radiculopathy) the claimant does not qualify for a DRE category III finding.

Left shoulder

Impairment assessment provisions

The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding other impairments. Regional impairments are combined to obtain a total UEI which is then converted to a WPI.
There are several methods of assessment:
(a)   amputation (part 3.1b);
(b)   sensory loss of the digits (part 3.1c);
(c)   abnormal range of motion (part 3.1d);
(d)   peripheral nerve disorders (part 3.1k);
(e)   vascular disorders (part 3.1l), and
(f)    other disorders (part 3.1m).
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a)   flexion;
(b)   extension;
(c)   abduction;
(d)   adduction;
(e)   internal, and
(f)    external rotation.
Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA 4.

Is there inconsistency in Ms Bounias’ assessment?

The Guidelines say:
“[6.40] The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report. “
[6.41] Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
While Ms Bounias’ left shoulder measurements within the examination were consistent, in the two planes of movement that she demonstrated, they are inconsistent with the measurements of other assessors as set out in the appendix to these reasons. The Panel also notes the claimant refused to demonstrate any movement at all in four of the six planes which demonstrates another level of inconsistency in that she demonstrated movement in all six planes to Dr Dixon and Medical Assessor Cameron but is partially consistent with the examination by Dr Mitchell (the claimant refused to move her left shoulder at all).

It is the clinical judgment of the medical members of the Panel that there is inconsistency in the claimant’s overall presentation and the clinical records for the following reasons:
(a) the claimant’s left shoulder imaging suggests there is mild bursitis and no significant rotator cuff pathology which does not correlate with the significant symptoms reported by the claimant and the complete disuse of her left upper limb (and her use of a sling in the past). The Panel would expect on the basis of those symptoms for there to be significant left shoulder pathology revealed on imaging such as significant or multiple rotator cuff tears of the complete rupture of the biceps tendon, and
(b) the claimant’s symptoms of pain and her history of not using her left upper arm and shoulder does not correlate with the physical examination of her left upper limb musculature. There was no wasting of the left upper arm when compared with the left and no wasting of the musculature of the left shoulder. It is now almost five years since the accident and the claimant reports she has been unable to use her left upper limb or shoulder since the accident. On the basis of that history, the Panel would expect there to be significant wasting around the shoulders and particularly in comparison with the right upper limb.
The claimant’s explanation for the inconsistencies evident at her assessment was her level of pain. She was clear in her history at all times during the examination that she has had left shoulder and arm pain and restriction of movement since the time of the accident.

Is the range of motion method of assessment appropriate?

Clause 6.50 of the Guidelines provides:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a)     a goniometer should be used where clinically indicated;
(b)     passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements;
(c)     if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d)     if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e)     if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel is of the view that the range of motion method of left shoulder impairment should not be used for the following reasons:
(a)   the claimant’s refusal to have extension, adduction, internal and external rotation measured;
(b)   the inconsistencies referred to above, and
(c)   the clinical judgment of the medical members of the Panel that the measurements that were obtained are not medically plausible taking into account the imaging studies and the lack of wasting and muscle atrophy in the upper left limb.
The Panel has found the claimant could have, and did injure her left shoulder in the accident. It is possible that the claimant does have an ongoing impairment caused by this injury. While the range of motion method cannot be used for the reasons given above, the Panel considers that section 3.1m of the AMA4 Guides should be used, that is “impairment to other disorders of the upper extremity”.
It is the medical members of the Panel’s clinical judgment on the basis of the imaging and other test results administered by the claimant’s treating doctors (in particular signs of impingement) and their own assessment experience, that the most analogous condition would be mild joint crepitation in the acromioclavicular joint.
The assessment of impairment for this condition is provided for at Table 19 (at page 59 of AMA 4) and with reference to the Table 18 (at page 58) joint provides a UEI of 3% which converts in Table 3 (page 20 of AMA 4) to a WPI of 2%.[35]
[35] 10% for mild crepitation x 25% for the acromioclavicular joint = 2.5% UEI which is rounded up to 3% UEI.

CONCLUSION

The Panel’s finding of the claimant’s impairment resulting from the injuries she sustained in the accident on 14 April 2018 is:
(a) cervicothoracic spine – DRE category II 5%
(b) left shoulder – mild joint crepitation 2%
To the sub-total of this assessment (7%) should be added to the claimant’s hearing loss assessment of 3%. The claimant therefore has a WPI of 10%.
While the Panel’s assessment achieves the same outcome as Medical Assessor Cameron’s, because the Panel has found a different percentage, the Panel is of the view the certificate of Medical Assessor Cameron should be revoked.

APPENDIX

LEFT SHOULDER	Normal	Dr Dixon 11 Nov 19	Dr Mitchell 20 Feb 20	MA Cameron 22 May 21	Rev Panel 2 Feb 23
Flexion	180	60 [8% UEI]	0	20 [11% UEI]	40 [10% UEI]
Extension	50	20 [2% UEI]	0	20 [2% UEI]	0
Abduction	180	40 [6% UEI]	0	0 [12% UEI]	40 [6% UEI]
Adduction	50	30 [1% UEI]	0	20 [1% UEI]	0
Internal rotation	90	40 [3% UEI]	0	20 [4% UEI]	0
External rotation	90	60 [0% UEI]	0	20 [1% UEI]	0
UEI		20% UEI	Would not allow any movement	31% UEI	Would not allow some movements

RIGHT SHOULDER	Normal	Dr Dixon 11 Nov 19	Dr Mitchell 20 Feb 20	MA Cameron 22 May 21	Rev Panel 2 Feb 23
Flexion	180	180	180	180	180
Extension	50	50	50	50	50
Abduction	180	180	180	180	180
Adduction	50	50	50	50	50
Internal rotation	90	90	90	90	90
External rotation	90	90	90	90	90
UEI		0%	0%	0%	0%

[2023] NSWPICMP 157

13 April 2023