BTQ v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 307

DETERMINATION OF REVIEW PANEL

CITATION:

BTQ v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 307

CLAIMANT:

BTQ

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Les Barnsley

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

5 May 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant’s application for review under section 7.26; assessment of whole person impairment (WPI) at 10%; issues of causation; claimant had pre-existing lower back problems and left wrist fracture subject of medical investigation and treatment in the months before the accident; claimant delayed reporting accident and all symptoms for a few weeks after accident; Held – accident could have and did injure the lower back, left hip and left wrist; injuries soft tissue aggravations; impairment assessment at 5% for lower back, 4% for left wrist and no assessable impairment in left hip; MAC revoked and new certificate issued; no issue of principle.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Revokes the certificate of Medical Assessor Home dated 26 April 2024.

2.     Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 9 September 2022 is 9% which is not greater than 10%.

A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

1. [BTQ] was involved in a motor accident on 9 September 2022.

2. [BTQ] says he injured his left wrist, left hip and lower back in the accident and made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle [BTQ] says caused his accident.

3. A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with the damages claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.

4. On 26 April 2024, Medical Assessor Home determined the degree of the claimant’s WPI was 10% but not greater than 10%.  As the claimant was not satisfied with that outcome, the claimant lodged an application with the Commission seeking a review of Medical Assessor Home’s decision.

5. On 12 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and thereafter the President’s delegate convened a Review Panel to conduct the Review. On 19 July 2024 the President’s delegate convened a differently constituted Review Panel (the Panel) to conduct the Review.

6. The Panel also notes that on 8 May 2024, Medical Assessor Shen determined that the degree of the claimant’s WPI from his psychological or psychiatric injuries was 15% which is of course greater than 10%. The insurer has lodged an application for review in respect of Medical Assessor Shen’s decision and the same delegate has allowed the review, although no Review Panel has yet been convened.

LEGISLATIVE FRAMEWORK

General

1. [BTQ]’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

2. In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.

3. Damages for non-economic loss are limited and restricted by the provisions in 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 2024 is $654,000.

4. 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.

Dispute resolution

1. 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 Home’s, further medical assessments and the review of medical assessments by this Panel.[3]

   [3] Sections 7.20, 7.24 and 7.26.

2. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).

3. The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).

4. Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings, and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

1. 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. The current version of the Guidelines is Version 9.3.

2. Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Home states at paragraph [2] of his reasons that he was asked to assess injuries to the claimant’s lumbar spine, wrist and hip. He examined the claimant on

   
   

   22 April 2024.

2. The Medical Assessor takes the following history from the claimant at paragraphs [8] – [9]:

   (a)    [BTQ] had been diagnosed before the accident with a psychiatric disorder with drug addiction. The claimant was managing the former with medication and the latter with methadone;

   (b)    the claimant had a previous history of chronic low back pain diagnosed a few years before the accident;

   (c)    he injured his left wrist when he fell from a dirt bike in 2017. It appears from elsewhere in the material that the fracture was surgically repaired with a plate and screws;

   (d)    he denied previous hip injuries;

   (e)    he has had three inguinal hernias;

   (f)    he was wearing a seat belt driving along a street in Marrickville when a car came out from a street on the right hitting the driver’s side of his vehicle just behind his door;

   (g)    police and ambulance did not attend, and [BTQ] got out of the car and exchanged details with the other driver. He parked the car and took a taxi home;

   (h)    he developed increased lower back pain with pain radiating to the left thigh. His wrist pain increased, and

   (i)    he has had physiotherapy and has taken Lyrica given to him by a friend and his physiotherapist suggests he should seek neurosurgical review.

3. The claimant’s current complaints were reported as left wrist pain including some issues with the left thumb and in the previous six months he had developed mild left shoulder pain.

   
   

   [BTQ] reported constant low back pain extending into the left thigh with intermittent paraesthesia in the left hip and left side and burning in the left thigh. There is sometimes shooting pain in the left leg but no symptoms below the knee. Medical Assessor Home records:

   “There is no local pain at the left hip. He says that the pain from his back extends across his hip into the left thigh.”

4. The claimant was 48 years of age at the time of the assessment. On examination there was significant left wrist impairment.

Wrist Movements	Active range of motion - left
Flexion	30 degrees
Extension	50 degrees
Radial Deviation	15 degrees
Ulnar Deviation	25 degrees

1. The lumbar spine was examined and there was dysmetria in both planes of movement (flexion/extension and right/left lateral flexion). There was pain with lateral flexion and tenderness over L4 to S1. Straight leg raise was achieved to both sides but with pain on the left side.

2. The neurological examination of the lower limbs revealed normal power, and there was muscle wasting of the left thigh but symmetrical measurement in the calves. There was reduced sensation on the left outer thigh and normal tendons.

3. The left and right hip motion was symmetrical and the measurements equal.

4. Medical Assessor Home accepted causation of the left wrist, lumbar spine and left hip injuries on the basis of complaints of pain in the early documentation. He noted the claimant’s complaints of intermittent lower back symptoms before the accident as well as the left wrist injury with hardware in place.

5. In respect of the left hip “injury” Medical Assessor Home said it was not apparent there was a left hip injury but that there was pain in the left hip radiating from the lower back. Medical Assessor Home considered the clinical features suggested “meralgia paresthetica” due to a lesion of the lateral femoral cutaneous nerve unlikely to be caused by the accident without a direct injury to the anterior left thigh or groin.

6. Medical Assessor Home assessed a lumbar spine impairment of DRE category II – 5% due to the dysmetria. He found no radiculopathy. While there was wasting of the left thigh musculature which may not have been related to a nerve root injury, there were no other signs of radiculopathy as required by the guidelines. He considered there was insufficient information to determine a pre-existing impairment.

7. The left wrist impairment was assessed at 5% WPI with no allowance made for pre-existing impairment.

8. There was 0% WPI for the left hip on the basis of the range of motion method.

9. The total impairment therefore was 10%.

ISSUES FOR DETERMINATION

Claimant’s submissions

1. The claimant takes issue with the left hip injury assessment saying the Medical Assessor has “erroneously” said there was referred pain from the back and no pain at the left hip. The claimant refers to medical evidence including Dr Vago’s reports of 8 November and

   
   

   12 December 2022 and the Medical Assessor’s decision which refers to early documentation of pain in the left hip. The claimant also refers to a report of Dr Rajendran and the physiotherapy notes which refer to left hip pain.

2. The claimant also says the Medical Assessor has erroneously said there are no signs of radiculopathy and refers to the Medical Assessor’s record of pain radiating to the left thigh and shooting into the left leg. The claimant also refers to the physiotherapy notes which refer to “radicular related pain left posterior leg” and a note of radicular symptoms.

Insurer’s submissions

1. The insurer’s submissions address at length what the Medical Assessor records in his assessment and refers in detail to its previous submissions and its medical evidence.

2. The insurer points to the claimant’s own history given at the examination of pain radiating from the back to the left thigh area and documents symptoms stated to include intermittent paraesthesia and shooting pain into the left leg and notes the left hip movements were the same as the right hip movements indicating no impairment.

3. The insurer also appears to agree there is left thigh wasting but says there is no other evidence in the examination findings of a lumbar radiculopathy.

4. The insurer does not take issue with the wrist measurements or wrist assessment.

Procedural matters

1. The previous Panel issued directions to the parties on 16 July 2024. The claimant was directed to upload a bundle of documents by 26 August 2024 and the insurer was given to

   
   

   2 September 2024.

2. The insurer’s bundle of 131 pages was received on 28 August 2024. This bundle includes two liability decisions relevant to the claimant’s statutory benefits claim of little relevance to this dispute. The insurer has also included correspondence between the parties about the claimant’s request for a concession about WPI and the internal review of the insurer’s decision not to concede an entitlement to non-economic loss. The Panel does not propose to refer to this material further as it is not strictly relevant to the Panel’s Review which is a fresh assessment of the medical dispute.

3. The Panel met on 16 September and reported to the parties on 18 September 2024.

4. The Panel confirmed we would be assessing [BTQ]’s lumbar spine, left wrist and left hip and noted the issue of causation of impairment in the lumbar spine and left wrist.

5. The Panel requested the following additional documents:

   (a)    the claimant’s submissions to be resubmitted with numbered paragraphs;

   (b)    complete copies of clinical notes from Marrickville Metro and Garners Road medical practices;

   (c)    pre-accident physiotherapy notes, and

   (d)    the insurer’s investigation report and in particular statements and photographs.

6. The parties were advised of the re-examination with Medical Assessors Gibson and Barnsley on 6 December 2024 and the claimant was directed to attend.

Responses from the parties

1. The Panel received a response from the claimant’s solicitor as follows:

   “Our client has not attended any GP practitioners, apart from Marrickville Metro and Garners Road practice, and physiotherpay practices within 3 years.”

2. The insurer uploaded a bundle of documents on 13 November 2024 with further brief submissions saying:

   (a)    the claimant had chronic lumbar spine pain with treatment and imaging before the accident;

   (b)    the claimant had falls before the motor accident which caused lumbar spine injuries (2 March and 25 October 2021);

   (c)    the claimant had pain in his left forearm as reported on 18 August 2022, and

   (d)    the Marrickville Metro notes suggest the claimant had no loss of left hip motion after the car accident, the claimant has had three accidents, and on 13 May 2014 the claimant had fractured his left radius five weeks before and it was surgically repaired.

Non-attendance and further re-examination

1. The claimant did not attend the re-examination on 6 December 2024. The explanation provided by the claimant’s solicitor was “My client was under the impression that the appointment was cancelled as he had received a cancellation notice.”

2. The Panel was advised by an officer of the Commission that no cancellation notice was sent by the Commission. The Panel was also advised that the case management system records the following messages were sent:

   (a)    on 30 October 2024 at 11.24am details of the appointment were provided to the claimant’s solicitor (name and address of the rooms, date and time and a request to bring radiology with him) and the claimant’s solicitor was requested to “please ensure the claimant is aware of the above information”;

   (b)    on 22 November 2024 at 10.30am an SMS message was sent to the claimant with the time, date and address of the re-examination, and

   (c)    on 29 November 2024 at 10.30am an SMS message was sent to the claimant with the time, date and address of the re-examination.

3. The Panel determined that the claimant should be afforded the opportunity of a further re-examination and an appointment with the Medical Assessors on 15 April 2025 was set. On 17 December 2024 the claimant was directed to attend the arranged re-examination.

Additional documents from the claimant

1. The Panel met on Thursday 24 April 2025 to discuss the re-examination findings and with a view to finalising the assessment. On Monday 28 April 2025 two messages were relayed to the Panel advising that the claimant had retained new solicitors. While Ms McKay acknowledged that the re-examination had occurred and the Panel had met, she requested the opportunity to put before the Panel the following additional material and information:

   (a)    an MRI of his lumbar spine performed on 4 December 2024;

   (b)    advice that the claimant had seen Dr Wong, neurosurgeon on 14 April 2025 and had been advised to have lumbar spine injections at L5, and

   (c)    a short statement addressing some of the matters in the statement made by the insurer’s insured driver.

2. The Panel had already noted that no radiology of the lumbar spine had been provided before and Medical Assessor Gibson had been told at the re-examination by [BTQ] that he had seen Dr Wong and been referred for further treatment. The Panel determined we would be assisted by the report of the radiology and any report from Dr Wong. While the claimant had provided sufficient detail about the mechanism of the accident at the re-examination, the Panel agreed to provide the claimant with an opportunity to provide a short statement.

3. The claimant was directed to provide the material by 30 April 2025 and his solicitors did so. The Panel has considered this material and in accordance with Rule 128 of the Personal Injury Commission Rules has decided to allow all the material into evidence.

REVIEW OF THE EVIDENCE

Claim form and claim documents

1. The claim form completed by the claimant on 2 November 2022[5] lists the claimant’s injuries as “left wrist injury” and “back injury”. The Panel notes there is no mention of a frank or specific left hip injury in the claim form.

   [5] The date is not clear and may be 4 November 2022.

2. A certificate of capacity and fitness was provided by Dr Vago on 8 November 2022. The injuries were said to be left wrist, lumbar spine and left hip. He says the claimant had a metal plate in his left wrist and a bulging lumbar disc before the accident. Dr Vago certified the claimant as unfit for work until 9 December 2022.

3. NRMA developed a “recovery plan” which included the diagnosis of left wrist, lumbar spine and left hip injury. The claimant was having trouble showering, sweeping the floor or engaging in household tasks. His goal was said to be to return to pre-accident independence with activities of daily living in three months and labouring jobs within six months.

4. The insurer engaged Quantumcorp to provide a report into the circumstances of the accident.  There is a statement from NRMA’s insured driver.[6] He says he had no chance to avoid the impact because he did not see the claimant’s vehicle approaching (although he says he waited at the intersection watching for oncoming traffic before turning). He said the force of the accident was about “2 – 2.5 out of 10” and that his body was not thrown forwards and no airbags went off. He says the plastic bumper was broken on his car and the other car had some dents and scratches.

   [6] Although dated 12 January 2022, that appears to be an error and the Panel has assumed it is 2023.

5. The insured driver says the claimant did not complain of any injuries after the accident and while he took photos of the cars, he has now deleted them from his phone.

6. Quantumcorp’s report also includes a number of photographs of the two cars which shows panel deformation damage, a flattened tyre.

7. A statement from the police officer was obtained. He did not attend the scene and was on duty when the claimant reported the accident on 24 November 2022. The claimant reported to the police officer that his pre-existing back and wrist injury were worsened by the accident.

8. [BTQ]’s statement of 29 April 2025 says he was travelling “well below the speed limit of 50 kms” due to the amount of traffic in the area. He refers to the insured vehicle collided in this right rear passenger door and panel and that there was “a massive bang” and his vehicle was pushed towards the gutter. He said he was shocked and angry and that the other car “was not as damaged as mine”. He confirms he was able to drive his vehicle home.

Treating medical records and reports

Garners Medical Centre pre-accident

1. Pre-accident records have been produced by Garners Medical Centre (GMC) starting in 2006 and with a handful of entries before 2020.

2. On 17 February 2020 the claimant reported to Dr Rajendran, “pain lower back both sides on and off for 2 years. [Occasional] radiation. Nil numbness or weakness. Mainly on bending forward”. A CT scan was ordered. The radiology results were discussed on

   
   

   21 February 2020. The claimant was advised to lose weight and was not keen on a cortisone injection and he was referred to Dr Lawford, rheumatologist.

3. The claimant attended again on 29 October 2020 requesting a referral to a physiotherapist for his lower back pain.

4. The claimant attended Dr Rajendran on 2 March 2021 following a fall in the laundry. He had landed on his back and was tender in the sacroiliac and lower back area. The claimant was referred for physiotherapy on 12 April 2021. The claimant attended again on

   
   

   25 October 2021 in relation to a fall. It is not clear if this is another fall or the one from March, but [BTQ] reported pain in the left lower lumbar spine and had been attending physiotherapy. On 18 November 2021 the claimant’s back pain was the apparent cause of the attendance, and an MRI of the lumbar spine was requested.

5. On 18 August 2022 [BTQ] attended reporting pain in the left forearm and an X-ray of his forearm and wrist was requested. On 25 August 2022 the claimant sought a referral for physiotherapy for his lower back pain.

Marrickville Metro Medical Centre – pre-accident

1. The claimant attended the Marrickville Metro Medical Centre (MMMC) where he has seen

   
   

   Dr Vago and Dr Missaghi. In the section about past medical history, it is noted the claimant had a mental health condition which started in 2014, a comminuted fractured radius which occurred in 2014 and in that year, he was placed on the methadone program.

2. The notes commence with an entry on 2 October 2001 with “gastro ? methadone withdrawal.” In October 2013 the claimant injured his left ankle and was prescribed Panadeine Forte and Avanza.

3. The claimant attended on 13 May 2014 in relation to a fracture of the left radius, five weeks previously. The claimant had fallen and aggravated the injury, and he was prescribed Voltaren. He attended again on 23 May 2014.

4. In August 2014 the claimant was having dental problems and was prescribed Panadeine Forte. After extractions he was prescribed further pain killers. There were further dental issues in December 2016.

5. On 11 June 2020 the claimant attended Dr Vago who records “2 bulging LS discs (3 accidents – MBA, MVA, fell over ...” A referral was given for physiotherapy. On

   
   

   1 April 2021 the claimant attended Dr Boey after a fall two weeks previously. He complained of mild lower back pain with no neurology.

Records post-accident

1. On 10 October 2022 the claimant attended Dr Missaghi at MMMC. [BTQ] did not mention the car accident but complained of left wrist pain and in respect of the left metal plate for review. He was said to be well and otherwise happy with medication. Counselling was given with no red flag. An X-ray was requested of the left wrist and forearm. The X-ray was performed on 14 October 2022 and reported that there was a plate and screw seen with reasonable callus and alignment and no hardware complication. There was no evidence of avascular necrosis.

2. On 27 October 2022 the claimant attended Dr Rajendran at GMC. He referred to the car accident and complained of left wrist pain and lower back pain with left sided sciatica. The claimant was referred for scans and a referral given to Dr Smithers, orthopaedic surgeon.

3. The claimant attended Dr Missaghi (MMMC) again on 8 November 2022 for left wrist pain. Later in the day of 8 November 2022 the claimant attended Dr Vago for the purposes of the accident, and he noted “left wrist injury – n pain, bulging disc, left sciatica, left hip pain.”

4. On 14 November 2022 there were two attendances at the practice the first in time was with Dr Missaghi to review the wrist radiology and then later with Dr Vago to also review the X-rays. There are two or three further consultations, but no details provided of what occurred.

5. On 12 December 2022 the claimant attended Dr Vago at MMMC complaining of left hip and lumbar spine pain and a referral for physiotherapy was given, as was a referral to Dr D’Silva, orthopaedic surgeon.

6. On 19 January 2023 the claimant attended MMMC to update his CTP claim and again on

   
   

   27 April 2023. In between there were three attendances for unrelated matters.

7. On 20 July 2023 the claimant saw Dr Rajendran at GMC complaining of a car accident on

   
   

   18 May 2023 when he was hit on the right side by a truck and had left sided cervical spine pain. The claimant had restricted motion, no radiation of pain, no weakness, and imaging was requested.

8. There are other complaints during 2023 made to MMMC but not related to the current accident or this May 2023 accident.

9. On 7 May 2024 the claimant attended for back issues (“lost 30% feeling in left leg” and “left wrist symptoms ++”). The claimant was using a back brace daily and he was prescribed Panadeine Forte and referred to Dr Abraszko, neurosurgeon.

10. The claimant attended MMMC again on 23 May 2024 and a Centrelink certificate was given and a referral to Sports Focus physiotherapy was provided.

11. On 30 May 2024 the claimant attended Dr Rajendran complaining of “pins and needles [lateral] aspect both thighs for 2 weeks nil weakness”. An MRI of the brain was requested, and Lyrica was prescribed.

12. On 20 June 2024, Dr Boey at MMMC requested an MRI of the claimant’s right leg. On

    
    

    18 July 2024 Dr Rajendran prescribed further Lyrica and requested an ultrasound of the left groin although no further explanation for this test was provided. On 22 August 2024

    
    

    Dr Rajendran had seen the ultrasound results of the hip and groin.

13. On 3 October 2024 the brain MRI results appear to have been received and a referral to Professor Yiannikas. Neurologist (brain) was provided.

14. The most recent attendance is on 5 November 2024 when the claimant attended

    
    

    Dr Rajendran for lower back pain and an MRI was requested and a referral to Dr McGee-Collett, neurosurgeon provided.

15. The claimant saw Dr Wong, neurosurgeon on 14 April 2025. In his report to the claimant’s general practitioner (GP), Dr Wong records a history of “ongoing lower back issues” since the car accident with “left sided sciatica which he feels in the buttock … radiating to the hamstrings and into the back of the knee.” There was associated numbness and tingling documents. The claimant was unable to work out in the gym. Dr Wong also records “right anterior thigh numbness and tingling in the last 10 months which does cause some excruciating discomfort with pulses of an electric shock-like sensation down the right anterior thigh.”

Requests for treatment

1. The parties have provided a series of allied health recovery requests (AHRR) as follows:

   (a)    2 December 2022 – for psychological treatment by Behold psychology for adjustment disorder with mixed depressed and anxious mood coupled with panic attacks. The claimant was said to have “severe pain’ in the left wrist, arm and back radiating to the left hip and left leg;

   (b)    6 February 2023 – for further psychological treatment by Behold psychology noting “psychological symptoms continue to be exacerbated by fluctuation in pain levels”;

   (c)    17 March 2023 – for physiotherapy with Sports Focus. The diagnosis was of a lumbosacral sprain with neural irritation on the left side and an aggravation of a previous left wrist injury. The claimant was said to be in constant strong pain ad have tingling into the left thigh;

   (d)    14 April 2023 – for further psychological treatment by Behold psychology noting “struggles to obtain sufficient sleep during the night and feels physically tired and emotionally drained throughout the day”;

   (e)    12 May 2023 – further physiotherapy from Sports Focus noting left lumbar radicular related pain and a left wrist sprain. Power was said to be reduced, light touch sensation changes were present, straight leg raising was positive at 30 degrees for thigh pain;

   (f)    23 June 2023 – further psychological treatment noting disruptive and insufficient sleep. Tosses and turns in bed to pain and racing thoughts;

   (g)    13 June 2024 for further physiotherapy for the lumbar spine and left and right leg symptoms, and

   (h)    28 August 2024 for further physiotherapy noting the lumbar spine radicular pain with accompanying left and right leg symptoms.

Physiotherapy notes

1. A response to a questionnaire from the physiotherapist Mr Nguyen dated 12 May 2023 had been provided by the insurer at page 82. It says:

   (a)    the claimant has been non-compliant with attendance and requires more regular attendance (he had been to six);

   (b)    he has not returned to pre-accident status and there were significant psychological barriers impacting recovery, and

   (c)    wrist motion was impaired, left hip motion was impaired, in the spine there was no muscle spasm. The author identifies radicular symptoms, a positive straight leg raise, motor loss, sensory loss but reflexes were normal.

2. Mr Nguyen, physiotherapist wrote to Dr Vargo on 7 August 2023 saying that the claimant “presents with signs and symptoms consistent with lumbar radiculopathy” noting significant motor weakness and loss of sensation and reduced reflexes. The claimant had persistent pain since “the last neurological assessment without improvement in neurological signs”. The claimant had not attended physiotherapy for three months and may benefit from radiology and neurological review.

3. Notes have been provided by Mr Nguyen of Sports Focus some of which are difficult to read but it does appear treatment was provided on 4 and 7 August, 1 September, 13 and

   
   

   16 October 2023. There does not appear to be any treatment provided to the left wrist and pain in the left hip and thigh is mentioned.

4. An additional bundle of documents provides details of earlier treatment on 15, 24 and

   
   

   28 March 2023, 14 April and 10 and 12 May 2023.

5. There is a gap in treatment after October 2023. A further referral was written by Dr Vago although the date of it is not clear but is possibly 23 May 2024. The first treatment appears to have been provided on 12 June 2024. The claimant confirmed he had not seen a neurosurgeon and had no further physiotherapy. He was said to have “exacerbated” the injury in the last month “with family trouble and trips to Brisbane”. His lumbar spine pain was said to have increased, there was no change in the left hip and lateral thigh numbness and weakness. His left wrist was not changed, and he was wearing a brace, but he had “new right hip / thigh burning pain – saw GP who recommended MRI (to receive tomorrow)”.

6. On 14 June 2024 the claimant attended again, and the right leg was said to be burning with shooting pain into the anterolateral thigh and hip. On 21 June the claimant attended with improved symptoms in the right leg. He had the MRI but had not seen the report. The right leg symptoms returned on 28 June and on 3 July and the claimant continued to complain of left leg symptoms and pain. On 26 July 2024 the physiotherapist saw the claimant and wrote to the insurer seeking approval of the MRI.

7. Two further attendances are noted on 9 and 16 August 2024.

Radiology

1. An X-ray of the left forearm and wrist was performed on 14 October 2022 at the request of

   
   

   Dr Rajendran of GMC due to “pain, previous fracture”. The report says there is evidence of a volar plate and screw fixation of the distal radius but no complications, fractures and alignment was normal.

2. An X-ray of the left wrist was performed at the request of Dr Missaghi of MMMC on

   
   

   8 November 2022 in order to “review plate”. The report said there were no complications of distal radius hardware.

3. A left wrist ultrasound was undertaken at the request of Dr Missaghi on 10 November 2022. The report refers to the previous injury eight years earlier and the current accident which had caused trauma and a feeling of tingling. The median and ulnar nerves appeared normal, but it was noted that the plate was close to the radial neurovascular bundle.

4. The Panel notes that Medical Assessor Home reviewed a CT of the cervical spine, dated

   
   

   8 October 2022 which showed a minor disc bulge at C6/7 but no other abnormality and he also reviewed an X- ray of the spine and hips dated 8 October 2022 which showed no abnormality.

5. The 4 December 2024 report of the MRI of the claimant’s lower back says:

   (a)    there is facet joint arthropathy in the three lower level of the lumbar spine;

   (b)    there is active inflammation of the facet joint on the left at L4-5, and

   (c)    there is desiccation of the L3-4 disc with an annulus tear and disc protrusion which may be irritating the right L3 nerve root.

Medico-legal reports and other assessments

1. No medico-legal reports are relied on by either party.

2. Medical Assessor Shen examined the claimant on 6 May 2024 and issued his certificate on

   
   

   8 May 2024.

3. The claimant gave a history of living with his parents and his brother. He had no partner but two children from a previous relationship and three grandchildren. He was seeing someone at the time of the accident. He had contact with one of his daughters before the accident. He had four friends before the accident but had lost two. He does not see them much and has not been to the gym or gone to the pub as he is in pain.

4. Before the accident he showered daily and cooked and shopped and would drive. He now showers ever second or third day as he has difficulty bending over and he no longer cooks or does the shopping. He can drive but short distances only as speed bumps aggravate his back pain.

5. Before the accident he said he worked casually for plumbers and carpenters a day or two a week but cannot work any longer because of aggravation of his pain. He had worked in labouring all his life.

6. The claimant gave a history of his previous psychiatric conditions which he said arose in the context of cannabis use and he had previously used heroin and he has been on methadone. He continues to use cannabis and is considering medicinal cannabis.

7. The claimant described the accident. He was driving at 5kmph and saw a car on his right coming out of another street. He beeped and waved at it, but it came out of the street at 10 – 15km and collided with his car. [BTQ]’s car was written off although his airbags did not deploy, and he did not hit his head. He went home but after a week his pain got worse, and he went to the GP.

8. The claimant described physical injuries to his lower back and shooting pains down his left hip and leg. He does not report a wrist injury. [BTQ] says three weeks after the accident he developed psychological symptoms and saw a psychologist which gave mild and temporary benefit, and he saw a psychiatrist who has increased quetiapine and mirtazapine.

9. Medical Assessor Shen diagnoses:

   (a)    bipolar disorder, with aggravation with major depressive episode, due to his pre-existing mood disorder, with current persistent depressive symptoms;

   (b)    panic disorder, due to recurrent panic attacks leading to social isolation, and

   (c)    social anxiety disorder, due to social withdrawal from his fears of negative evaluation.

10. Medical Assessor Shen was not of the view the claimant should be diagnosed with post-traumatic stress disorder being the primary diagnosis “given the relatively low severity of the impact and limited symptoms”. He also records the claimant’s substance use disorder is in remission, apart from a degree of ongoing cannabis use.

11. In terms of causation, he says:

    “The physical injuries and pain from the subject accident, has led to a degree of disability and distress, which has caused his pre-existing bipolar disorder to become aggravated, with worsening depression, anxiety and social isolation.”

12. Medical Assessor Shen assessed the claimant’s current impairment at 19% and his pre-accident impairment at 5% to which he added 1% for the effect of treatment.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS GIBSON AND BARNSLEY

1. [BTQ] attended the re-examination on 15 April 2025 as arranged. He was unaccompanied to the assessment and had travelled from home in an Uber. He brought no imaging with him.

2. The examination lasted for over an hour and [BTQ] was pleasant and co-operative throughout the re-examination. He gave his history in a simple and unembellished fashion.

History from [BTQ]

Past medical history

1. [BTQ] told me he had an accident whilst riding a dirt bike in 2017. He sustained a left radial fracture which had required operative reduction and internal fixation. He said he had made a good recovery following this injury and had returned to lifting weights, but he did admit to having a small (he estimated 5%) reduction in movement of the injured left wrist at the time of the accident.

2. He said that he had had some low back pain prior to the accident. He described this as being "minor, just sore muscles”. He said he had some physiotherapy through Medicare, estimating five to six sessions per year, but more for the massage component of the treatment.

3. We asked him about the entries in the clinical notes of his treating doctors, in particular the entry on 25 August 2022, just two weeks before the accident where he was said to have complained of ongoing low back pain and he was referred for a scan of his low back.

   
   

   [BTQ] said he did have lower back pain before the accident but he never had the shooting pain into his leg, the nerve pain or pins and needles to the degree that he has had since the subject accident. He also said before the accident his sleep was unaffected.

4. There were earlier reviews on 21 February 2020 to discuss the results of the radiology and then a further review on 29 October 2020 when he requested referral to a physiotherapist for low back pain. There was another entry on 2 March 2021 following a fall in the laundry and there was low back and sacroiliac tenderness. He was referred for physiotherapy and on

   
   

   18 November 2021 an MRI scan was requested. He was also taken to the notes from

   
   

   Dr Rajendran who, on 17 February 2022, had recorded "pain lower back both sides on and off for 2 years (occasional) radiation. Nil numbness or weakness. Mainly on bending forward."

5. Whilst [BTQ] did not dispute any of these entries, he again emphasised that he had no nerve pain like his current pain, and that he was unrestricted with activities of daily living and had been training at the gym until the day of the subject accident.

6. He said there had been no prior issues with his left hip although he had been diagnosed with multiple inguinal hernias.

7. He had been diagnosed with bipolar disorder and prescribed quetiapine and Avanza.

   
   

   [BTQ] was also forthright in telling us he had a prior history of narcotic addiction and had been using methadone for approximately 16 years.

History of the accident[7]

[7] This is the history of the accident given at the re-examination. At that time the Medical Assessors did not have the claimant’s statement, but both the history and the statement are consistent.

1. [BTQ] was a seat-belted driver of a two-door sedan (he described an "old car").  He was travelling slowly along Illawarra Road in Marrickville when another vehicle came out of Church Street on his right and struck the driver’s side of his car and in the process pushed it towards the gutter. He said the tyre went up on the gutter.

2. He was thrown to the left and recalls hitting his left hip on the centre console. He indicated where the impact had been which we identified as the greater trochanteric region on the left. He said his low back and left ribs were sore. He said initially he felt it was only muscle pain.

3. He said the other driver was intoxicated.

4. When asked about the clinical notes from MMMC on 10 and 14 October 2022 where the left wrist was mentioned but not the accident or back or hip symptoms, [BTQ] said he thought he had mentioned the accident to his doctor at that time, but he was more worried about his wrist. He was asked about the attendance on 27 October 2022 where there is mention of left wrist and lower back symptoms but not left hip symptoms. [BTQ] said he thought he had mentioned his, but he also had pain from his back into his left side and it maybe his doctor did not record the separate hip pain.

1. When asked about the left wrist, he said the pain had come on immediately and he had soon noticed some swelling and bruising of the wrist. Since then, there has been no improvement in the left wrist symptoms. He was referred for imaging of his left wrist which showed no accident-related bony injury and the plate from the previous surgery was still in good position.

2. He said he had initially delayed visiting the GP as he felt that it was all just muscle pains and pains like he had before, and he hoped he would get better. It was only when they did not get better, in fact got worse and he started experiencing symptoms not experienced before that he went to his doctors and sought advice and treatment.

Current situation

Current complaints

1. [BTQ] described having a “cold shooting” pain in the vicinity of the old left wrist injury, with reduced range of movement. He said he is not using the left arm as much as before the accident and now relies on his right hand to support himself, for example, when he is getting to his feet from a chair.

2. There is low back discomfort which was, until recently predominantly left sided. The low back pain spreads into the lateral aspect of the left hip and left thigh as far as the left knee. He said this referred pain has been present since the subject accident and not before. He said if he sleeps on his back, he wakes up due to pain and when he gets out of bed in the morning, he feels like he has been "hit by a truck". He also finds he cannot sleep on his left side for very long.

3. Over the last 8-10 months, he has noted some "electric shocks" and pins and needles and numbness over his right thigh (but not the left) and he was referred by his GP to Dr Wong, neurosurgeon for specialist review.

4. When asked about his left hip, he said the pain comes from his back and not from the hip itself. He denied hip joint pain. He did admit to also having some groin pain which he attributed to his hernias. He said he feels the hernias have increased in size and become more painful over time.

Current treatment

1. [BTQ] attends physiotherapy on a weekly basis. He also does some home-based exercises.

2. He takes Quetiapine 100mg per day and Avanza 45mg a day. He is currently on 70ml of methadone. He thinks the dosage of all of these medications have been increased since the accident.

3. [BTQ] told us he had recently had an appointment with Dr Wong, neurosurgeon due to his ongoing complaints in the lower back.

4. He said he wears a back brace, although he did not wear it for the assessment. He said that he is walking on a regular basis and has managed to lose 10kg. He said he had to change his footwear and now wears Asics shoes as he finds these are not as heavy as other brands.

5. He said that since the accident he has not been able to return to the gym.

Physical examination

1. [BTQ] was 194cm tall and weighed 115kg. He was right-handed. He was able to stand and walk on heels and toes although he did report feeling he was somewhat weaker over the left lower limb.

2. On examination of the upper limbs, the circumferential measurements of the arms were 36cm on both sides (measured 10cm above the olecranon process). The right forearm measured 33cm and the left forearm 31cm (10cm below the olecranon process). This difference can partly be explained by the claimant’s right hand, dominance but also supports his history of using the right arm more than the left due to symptoms in the left wrist.

3. On examination of the wrists, there was scarring from the previous surgery. The range of motion in the right wrist was completely normal. Active movements of both wrists were measured as follows:

Wrist Movements	Active range of motion right	Active range of motion left
Flexion	60 degrees	40 degrees
Extension	60 degrees	60 degrees
Radial Deviation	30 degrees	20 degrees
Ulnar Deviation	30 degrees	10 degrees

1. On examination of the thoracolumbar spine:

   (a)    flexion and extension were half-normal range;

   (b)    lateral flexion was three-quarters normal to the left and two-thirds normal to the right. When [BTQ] moved to the right, he complained of left-sided low back and thigh pain, and

   (c)    rotation was half-normal on both sides.

2. On examination of the lower limbs:

   (a)    there was normal and symmetrical power (+ 5) in both limbs;

   (b)    there were normal and symmetrical reflexes on testing in both limbs;

   (c)    there was normal left lower limb sensation to light touch and pin-prick testing, but there was patchy loss of sensation over parts of the right leg which did not follow a dermatomal pattern or nerve root distribution;

   (d)    thigh measurements taken 10cm above the superior pole of the patella, were 49cm on the right and 47cm on the left. Maximal girth of both calves was 38cm bilaterally, and

   (e)    straight leg raise was 70° bilaterally and sciatic nerve root tension signs were negative.

3. On examination of both hips, there was no specific tenderness or localising signs on palpation to suggest hip joint pathology. Active movements were as follows and there were complaints of back pain with abduction and internal rotation of both hips.

Hip movements	Right	Left
Flexion	110 degrees	115 degrees
Internal Rotation	40 degrees	40 degrees
External Rotation	40 degrees	40 degrees
Abduction	30 degrees	30 degrees
Adduction	30 degrees	30 degrees

CONSIDERATION OF THE ISSUES – PANEL

Diagnosis and causation

1. The test of causation of injury, according to cl 6.6 the Guidelines is two-fold and requires:

   (a)    a medical judgment about whether the mechanism of the accident could have caused (or materially contributed to) the claimed injuries, and

   (b)    a factual or legal judgment about whether the accident did in fact cause (or materially contribute to) the claimed injuries.

2. While the medical members of the Panel note the evidence from the insured driver, the Panel has considered the claimant’s recent statement, his history at the re-examination and the histories provided to others. He says he was hit forcibly from the side causing his body to shift sideways in the car and hit the centre console. The Medical Assessors also note the claimant’s pre-existing lower back and left wrist conditions which, in their clinical judgment would have made the claimant more vulnerable to injury. The Medical Assessors are satisfied that the mechanism of the accident could have caused injuries to the claimant’s left hip, left wrist and lower back.

3. The question remains whether the accident on 9 September 2022 did in fact cause injuries to the claimant’s left hip, left wrist and lower back.  The first post-accident medical visit was on 10 October 2022, but Dr Missaghi does not record the accident, nor any complaints apart from left wrist pain, and concerns about the plate that was in place from earlier surgery. Even at further review with Dr Missaghi on 14 October 2022, there were no other complaints apart from the left wrist and again there was no mention of the car accident.

4. The first report of the accident was to the GMC practice on 27 October 2022 where the left wrist and lower back were mentioned. The claim form completed by the claimant in November 2022 did not mention the left hip and only mentioned injuries to the wrist and lower back. On 8 November 2022, two months after the accident, when seen by Dr Missaghi, the claimant did not mention the accident but he also saw Dr Vago on the same date and this doctor had recorded the history of the subject accident and complaints of “Left wrist injury - n pain, bulging disc, left sciatica, left hip pain”. The Panel considers it reasonable to assume the “n pain” is a typographical error and should read “in pain” as Dr Vago then provided certification that day listing left wrist, lumbar spine and left hip injuries.

5. The claimant thought he had mentioned the car accident to his doctors and all of his symptoms but also explained the delay in reporting symptoms was because he thought they were just muscular and would simply get better with time and he had previous complaints in those areas.

6. The Panel accepts this explanation as it is plausible. The claimant had previous conditions which had, according to the records, flared from time to time and were symptomatic at around the time of the accident (left wrist and low back) and it is reasonable he would not have gone to a doctor or if he did may not have been prompted to talk about the accident.

7. The Panel has been provided with no radiological evidence to suggest any bony injuries to the claimant’s lower back, hips or wrist were sustained in the accident. The 4 December 2024 radiology of the lumbar spine reports degenerative changes and possible nerve root irritation on the right side but not the left.

8. The Medical Assessors are therefore of the view that the claimant’s injuries should be diagnosed as:

   (a)    soft tissue injury to the left wrist causing an aggravation of a symptomatic pre-existing condition;

   (b)    soft tissue injury to the lower back causing an aggravation of pre-existing symptomatic degenerative disease and additional symptoms on the left side. The Panel does not accept that the right sided symptoms are accident related. They have only become apparent in the last 10 months and it is not medically plausible that an injury could produce symptoms that long after the accident. These symptoms are more likely to be related to the claimant’s degenerative spine condition, and

   (c)    a soft tissue injury to the left hip. The Panel is of the view that the absence of any focal tenderness in or over the hip joints at the re-examination with Medical Assessors Gibson and Barnsley suggests that any soft tissue injury to the left hip has resolved, with the current complaints in the hips being due to referred pain from the lumbar spine injury as the claimant’s own evidence suggests.

IMPAIRMENT ASSESSMENT

Preliminary observations

1. Medical Assessors, and this Panel, are required to assess impairment resulting from injuries caused by the accident.

2. If a claimant’s injury causes impairment to another part of a claimant’s body, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor,[8] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[9]

   [8] [2011] NSWSC 351.

   [9] This is referred to as the “Nguyen Principle”.

3. Impairment is assessed when it is permanent, that is when it has been “present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment”.[10] It is now more than two and a half years since [BTQ]’s accident. It is the Medical Assessor’s view that his injuries have stabilised, and the impairment is permanent and able to be assessed.

   [10] Clause 6.19 of the Guidelines.

4. A claimant may have sustained injury which has healed or recovered. While other examiners may have found different signs and symptoms earlier, the Guidelines require the Panel to assess [BTQ]’s impairment as he presents on the day of the re-examination.[11]

   [11] Clause 6.21 of the Guidelines.

5. Clause 6.31 of the Guidelines provides for pre-existing impairments as follows:

   “ The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”

6. [BTQ] confirms he had previous injuries and conditions in his left wrist and lower back and therefore s 6.31 must be considered when those parts of his body are assessed.

Lumbar spine

1. Assessment of the spine requires consideration of Chapter 3 of the AMA 4 Guides as modified by the Motor Accident Guidelines. The Guidelines permit only the diagnostic related estimate (DRE) method of assessment (cl 6.111).

2. The spine is divided (cl 6.131) into three regions, the cervical, thoracic, and lumbar spine. If injury to the whole of the spine is alleged, then each of the regions injured is assessed and the percentage impairments combined to obtain a total spinal impairment. If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132).

3. [BTQ] says he only injured his lower back (that is the lumbar spine) in the accident.

4. There are five diagnostic related categories, and cl 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102 – 107 of the AMA 4 Guides (as amended by the Guidelines).

5. Table 6.7 and the DRE descriptors includes neurological differentiators (for example radicular symptoms and signs of radiculopathy) and structural inclusions (for example vertebral fractures) to be considered.

6. The first category is DRE category I which is selected if there are symptoms in the spine which may include pain.

7. In the circumstances of this claim, there are no structural inclusions evident. There is no radiology indicating that [BTQ] has sustained one or more vertebral fractures of any kind. The neurological differentiators of DRE categories II (which includes radicular symptoms) and III (signs of radiculopathy) are relevant in the light of the claimant’s submissions and findings of other examiners.

8. A finding of DRE category II requires there to be:

   (a)    pain with guarding, or

   (b)    non-uniform range of motion – dysmetria, or

   (c)    non-verifiable radicular complaints defined in Table 6.8 as:

   (i)symptoms (shooting pain, burning sensation, tingling), and

   (ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

9. A finding of DRE category III requires there to be radiculopathy present which is defined in cl 6.138 as “… the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …”. The Panel notes the claimant’s submissions and draws the claimant’s attention to there being a clear difference in the Guidelines between radicular symptoms (relevant to a DRE category II impairment) and radiculopathy (which indicates a DRE category III impairment). Radicular symptoms are more subjective based on complaints, for example of radiating pain, whereas a finding of radiculopathy is made on the results of objective testing. The five signs of radiculopathy are provided in the Guidelines as follows:

   (a)     loss or asymmetry of reflexes (see Table 6.8);

   (b)     positive sciatic nerve root tension signs (see Table 6.8);

   (c)    muscle atrophy and/or decreased limb circumference (see Table 6.8);

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

10. Pain is not one of the five signs of radiculopathy.

11. In [BTQ]’s case, there were complaints of pain and symptoms, but without vertebral body compression or vertebral fracture. There were clinical findings of dysmetria (asymmetrical loss of movement in the lumbar spine) and non-verifiable radicular complaints (radiating pain into the hips, pins and needles and tingling).

12. In terms of the five signs of radiculopathy:

    (a)    there was no loss of reflexes in either of [BTQ]’s lower limbs;

    (b)    sciatic nerve root tension signs were negative;

    (c)    there was some evidence of muscle atrophy in the left limb as the left lower limb had a 2cm difference in limb circumference compared to the right;

    (d)    there was however no muscle weakness at all in either limb, and

    (e)    there was patchy sensory loss over parts of the right (and not left) lower limb that was not anatomically localised to an appropriate spinal nerve root distribution.

13. For the Panel to make a finding that a particular nerve root has been injured in the accident manifesting in radiculopathy, there must be two clinical findings corresponding to an injury of the same nerve root. Because there was one sign of radiculopathy present on the left side and possibly one sign of radiculopathy on the right side, the Panel is of the view the claimant does not satisfy the criteria for a finding of radiculopathy at any level of the lumbar spine on either the right or left side.

14. Therefore, the Panel considers the claimant’s lumbar spine injury should be assessed at DRE impairment category II - 5% WPI.

15. The claimant has complained of lower back symptoms before the accident and the medical records confirm this. On 25 August 2022 less than two weeks before the accident the claimant sought a referral for physiotherapy for his lower back pain. The Panel is satisfied there is objective evidence of a symptomatic pre-existing impairment in the lower back. The claimant’s history and the Panel’s analysis of the GP records suggests these symptoms appear to consist mainly of pain. There is no evidence in the GP records of any neurological signs of radiculopathy or any consistent non-verifiable radicular or other symptoms. The Panel is therefore of the view that the claimant’s pre-accident lumbar spine impairment should be categorised as a DRE impairment category I which equates to a 0% WPI.

16. In accordance with cl 6.31 the pre-accident impairment (0%) is deducted from the current assessed impairment (5%) resulting in a WPI of 5% due to the accident.

17. The Panel refers to the claimant’s additional documents provided by his new solicitors. In respect of the radiology the findings at L3-4 explain the right sided symptoms which commenced 10 months ago, and which were reported to Medical Assessor Gibson at the re-examination. The facet joint inflammation at L4-5 on the left could explain the claimant’s left sided symptoms reported since the accident.

18. Dr Wong’s recent clinical findings are consistent with those of the Panel and are indicative of a DRE category II impairment. Dr Wong documents at length the claimant’s pain which radiates from his lower back into his left lower limb and other symptoms including numbness and tingling on the left side and electric shock sensations, numbness and tingling on the right side. These are all non-verifiable radicular symptoms other than the claimant’s complaints of numbness. Numbness could indicate the presence of one sign of radiculopathy namely “reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution”. Dr Wong’s report however does not indicate what testing he did (if any) to establish sensory loss and his report does not provide evidence that any other signs of radiculopathy were present at the time of his examination.

19. Dr Wong’s report does not alter the Panel’s assessment of WPI but supports the Panel’s finding of a DRE category II impairment of 5%.

Left hip

1. The claimant referred his left hip for assessment as he said he sustained an injury when his left hip impacted the centre console in the collision. However, at the re-examination with Medical Assessors Gibson and Barnsley, [BTQ] gave a clear history that his current hip pain was coming from his back injury. At the re-examination with the Medical Assessors, they found no hip joint tenderness or abnormality which would indicate a frank or specific left hip injury. However, when his hips were moved during the course of the examination this produced back pain which is consistent with symptoms in the hip caused by a back injury.

2. The Medical Assessors are therefore satisfied that the claimant no longer has any impairment caused by the left hip impacting the centre console injury and that any impairment in the hips is as a result of [BTQ]’s lower back condition. As per the Nguyen principle, the Panel is of the view any hip impairment must therefore be assessed and included as resulting from the lower back injury.

1. The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:

   (a)    limb length discrepancy (3.2a);

   (b)    gait derangement (3.2b);

   (c)    muscle atrophy (3.2c);

   (d)    manual muscle-testing (3.2d);

   (e)    range of motion (3.3e);

   (f)    joint ankylosis (3.2f);

   (g)    arthritis (3.2g);

   (h)    amputations (3.2h);

   (i)    diagnosis-based estimates (3.2i);

   (j)    skin loss (3.2j);

   (k)    peripheral nerve injuries (3.2.k);

   (l)    causalgia and reflex sympathetic dystrophy (3.2l), and

   (m)     vascular disorder (3.2m).

2. Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and table 6.5 says which of the above methods can and cannot be combined and Table 6.6 provides guidance in selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provide specific interpretation and instruction on the various methods of assessment.

3. It is the clinical judgment of the medical members of the Panel that, taking into account the absence of impairment from any frank or specific left hip injury and the relationship of the impairment to the claimant’s lower back injury that the range of motion method is the most appropriate method.

4. Table 40 at page 78 of AMA 4 requires six measurements to be obtained:

   (a)    flexion and extension;

   (b)    internal and external rotation, and

   (c)    abduction and adduction.

5. [BTQ]’s hips movements were measured on both sides. There was a slight difference in flexion with the right having slightly less range of motion than the left. However, none of the other measurements indicated any abnormality and all of his measurements were within the normal range provided for in Table 40 and therefore there is no assessable impairment in either the left or the right hip.

Hip movements	Right	Left	Impairment assessment reasons
Flexion	110 degrees	115 degrees	A ‘mild’ impairment would be allowed if movement was less than 100 degrees. As [BTQ]’s measurement is greater than 100 degrees there is no impairment.
Internal Rotation	40 degrees	40 degrees	A ‘mild’ impairment would be allowed if movement was between 10 and 20 degrees. As [BTQ]’s measurement is greater than 20 degrees there is no impairment.
External Rotation	40 degrees	40 degrees	A ‘mild’ impairment would be allowed if movement was between 20 and 30 degrees. As [BTQ]’s measurement is greater than 30 degrees there is no impairment.
Abduction	30 degrees	30 degrees	A ‘mild’ impairment would be allowed if movement was between 15 and 25 degrees. As [BTQ]’s measurement is greater than 25 degrees there is no impairment.
Adduction	30 degrees	30 degrees	A ‘mild’ impairment would be allowed if movement was between 0 - 15 degrees. As [BTQ]’s measurement is greater than 15 degrees there is no impairment.

1. While [BTQ] has symptoms of pain in both his hips, cl 6.38 of the Guidelines prevents Medical Assessors from making a “separate allowance for permanent impairment due to pain” and recognises that, “each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages”.

2. [BTQ] has no assessable impairment in respect of the symptoms in his left hip related to his back injury and his left hip impairment is therefore 0% WPI.

Left wrist impairment

1. 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 others. Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.

2. 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).

3. In [BTQ]’s case, the Panel’s view is that the most appropriate method of assessing left wrist impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of four units of motion:

   (a)    flexion and extension, and

   (b)    radial deviation and ulnar deviation.

4. Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the four UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI percentage in accordance with table 3 on page 20 of AMA4.

5. [BTQ]’s range of motion was measured in both his left and right wrist. The right wrist was entirely normal.

Wrist Movements	Range of motion left wrist	UEI
Flexion	40 degrees (normal is 60)	3% - figure 26 page 36 AMA 4
Extension	60 degrees (normal is 60)	0% - figure 26 page 36 AMA 4
Radial Deviation	20 degrees (normal is 20)	0% - figure 29 page 38 AMA 4
Ulnar Deviation	10 degrees (normal is 30)	4% - figure 29 page 38 AMA 4

1. There is a clear restriction in left wrist range of motion although it is somewhat improved from the examination by Medical Assessor Home. The total impairment is 7% (3% plus 4%) UEI which is converted in Table 3 on page 20 of AMA 4 Guides to 4% WPI.

2. The claimant had a previously fractured left wrist with plate and pins in situ. He conceded there was some restriction of motion of the left wrist before the accident which he said was slight. While there is objective evidence of a pre-existing impairment (the previous fracture with operative hardware) and the claimant’s own evidence that it was symptomatic and causing impairment, the claimant says that the impairment was minor (he estimated it at a 5% loss of motion). There clinical findings of range of motion before the accident, or previous measurements which could guide the Panel in calculating the pre-existing impairment and therefore the Panel cannot with any degree of certainty make a deduction pursuant to s 6.31.

1. In the light of the total impairment from all the claimant’s injuries, the Panel does not propose to engage further with the question of apportionment or deduction.

CONCLUSION

1. The claimant’s total WPI is 9% made up as follows:

   (a)    lower back DRE category II         5%;

   (b)    left hip  0%, and

   (c)    left wrist  4%.

2. Although the Panel’s outcome is the same as Medical Assessor Home’s (WPI not greater than 10%), the Panel has arrived at a different degree of WPI (9% not 10%). It therefore follows that Medical Assessor Home’s certificate must be revoked and a fresh certificate issued.

The Review Panel

Personal Injury Commission