BTV v Allianz Australia Insurance Limited
[2023] NSWPICMP 674
•14 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BTV v Allianz Australia Insurance Limited [2023] NSWPICMP 674 |
| CLAIMANT: | BTV |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 14 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical assessment of whole person impairment (WPI); Medical Assessor (MA) Menogue assessed cervical spine - soft tissue, right shoulder - soft tissue at 1% WPI, lumbar spine - soft tissue; total WPI at 1%; review by Medical Review Panel; Held – certificate of MA revoked; Panel certifies that WPI arising from the injuries is 2%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Panel: 1. Revokes the certificate of Medical Assessor Nigel Menogue of 16 April 2023. 2. Certifies that the permanent impairment arising from the injuries sustained in the accident gave rise to a whole person impairment of 2%. |
STATEMENT OF REASONS
INTRODUCTION
BTV (the claimant) was born in July 1976.
The claimant alleges that she sustained injuries in a motor vehicle accident on
22 January 2019.
On 16 April 2023, Medical Assessor Nigel Menogue certified that the claimant had sustained soft tissue injuries to the cervical spine, right shoulder, and lumbar spine, giving rise in aggregate to 1% whole person impairment (WPI).
On 23 August 2023, further to the Application of the claimant, the President’s delegate certified that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and the Review Application was accepted and referred to the Review Panel.
The Panel consists of the persons whose names appear above.
ASSESSMENT OF MEDICAL ASSESSOR MENOGUE OF 16 APRIL 2023
The Panel reproduces the relevant parts of Medical Assessor Menogue’s Certificate and Reasons of 16 April 2023:
“10. History of symptoms and treatment following the motor accident
The consultation with Dr Tomka on 13 February 2019 refers to the subject accident. He obtained a history that she was experiencing pain in the neck, low back and right shoulder, and also numbness ‘first three fingers of both hands.’
She was treated with analgesics.
She returned five days later for further analgesics and the same clinical picture was recorded.
She was referred for physiotherapy, which commenced on 25 March 2019 (Aspire Physio in Liverpool).
She continued with physiotherapy for several months.
She did not return to Dr Tomka for one month and was seen on 18 March 2019. She was referred for MRls of the cervical spine and lumbar spine, which were performed on 24 and 29 April respectively.
The imaging did not identify evidence of a new injury but did identify degenerative changes in the midcervical region and the lower lumbar region; there was no evidence of nerve root impingement
detected on either investigation.
She had reduced her working hours to 15 hours per week at this stage.
There was no change in her treatment, but an ultrasound was ordered of the right shoulder on 11 July 2019, noting pre-existing degenerative changes involving the supraspinatus and subscapular muscle tendon groups, a degenerate acromioclavicular joint; there was an insertional tear of the supraspinatus tendon.
She continued with physiotherapy, but her symptoms persisted, so she was referred to Dr Murrell for shoulder assessment. Dr Murrell noted the prior conservative treatment, recommending an arthroscopy and rotator cuff repair, which was performed on 21 November 2019. Medical Assessor Menogue noted his follow-up treating doctor's reports and that of 18 May 2020 noting, ‘Good result. See if necessary.’
In early 2020, she was referred to neurosurgeon, Dr Bazina, and seen on
10 February 2020. A provisional diagnosis of carpal tunnel syndrome was made to explain the upper limb symptoms. Nerve conduction studies were performed on
26 March 2020, confirming bilateral carpal tunnel syndrome.
Dr Bazina considered that surgery was necessary and she underwent a left carpal tunnel release in August 2020 and a right carpal tunnel release in March 2021. The claimant became aware of increasing right shoulder discomfort in 2021 and returned to Dr Murrell. He noted a calcium build-up and a second arthroscopy was arranged of the right shoulder in early
2021. Medical Assessor Menogue noted a physiotherapy report from
Dr Murrell's physiotherapist (Mr Daher) and dated 21 July 2021. He obtained a history that she was ‘happy with the shoulder and making steady progress.’ His range of movement assessments revealed only slight reduction in range of movement. Further exercise routines were encouraged, and he indicated she was fit to return to work on light duties.
Dr Murrell's final review took place on 25 October 2021 - six months since the revision rotator cuff repair. He noted, ‘Very happy with the shoulder and is back to full activities.’
The claimant told the Medical Assessor that she was not in receipt of any active treatment at present, apart from analgesia as referred to earlier in the body of this report.
11. Details of any relevant injuries or conditions sustained since the motor accident
On 6 March 2021, she was involved in a second motor vehicle accident which took the form of a T-bone collision. The documentation refers to injuries involving the left shoulder and the left knee. Medical Assessor Menogue asked the claimant about the impact of the second motor vehicle accident on the injuries to the neck, back and right shoulder, and she states that the symptom of pain increased for a period of time, but there was no new clinical picture relating to neck, back or right shoulder.
No active treatment was undertaken. She did see Dr Murrell for the left shoulder, but she was most reluctant to consider surgical intervention and so conservative treatment was the only form of management.
No imaging had been undertaken of the left shoulder that is reported, nor the left knee.
No treatment was considered in regard to the left knee.
12. Current symptoms recorded by Medical Assessor Menogue
Cervical spine - pain - She describes an intermittent, low cervical ache that can spread to the right supraclavicular region. However, there is no spread of pain from the neck to the right upper limb.
There is no spread of pain or sensory change to the left upper limb from the neck.
She does experience variable sensory changes in the form of numbness involving the anterior aspect of the right upper arm, anterior aspect of the forearm, but does not include the palm. There was a patchy description of sensory changes involving thumb, index and middle finger of the right hand that more closely followed a residual carpal tunnel clinical picture.
Upper arm and forearm symptoms of sensory change are sometimes referred from the wrist.
Right shoulder - She denies any specific shoulder symptoms, but states that the shoulder can feel cold with weather changes, but there is no pain at rest nor with arc and elevation.
Lumbar spine - pain - She describes an intermittent, right lower low lumbar which is localised. The discomfort can spread to the right buttock region. There was a description of further distal sensory changes, but these were patchy and did not follow any anatomically described dermatome.
Low back pain can be increased with prolonged sitting and relieved by getting up and moving around.
There is scarring involving the right shoulder and both hands, although she tells me the scarring is asymptomatic.
Incidentally, the claimant suffers from extensive vitiligo (a skin disorder) and this is symptomatic.
…
Clinical Examination by Medical Assessor Menogue
15. General presentation
On examination the claimant was of average stature and solid build; she walked with a normal gait. She rose steadily using both hands to push herself off the chair.
She stood independently on each leg without support.
She was not wearing a brace or corset.
She had a normal posture; there was no evidence of pelvic tilt or limb shortening.
Gait and stance on tip-toe and heel did not show any evidence of loss of agility, muscle weakness or limp.
She was only able to perform a half squat, citing low back pain as a reason why she could not complete this action.
She was encouraged to demonstrate maximal effort during the assessment process but short of unacceptable symptoms levels.
16. Cervical spine (cervicothoracic)
Examination of the cervical spine showed the neck to be short and thick; the attitude was neutral and normal with no evidence oftorticollis.
There was mid-line discomfort on palpating C7 spinous process and the right-sided facet at that level.
Otherwise, there was no discomfort on palpating the interspinous ligaments or paraspinous muscles.
There was no evidence of paracervical muscle guarding or trapezius spasm and there was no region acting as a trigger area.
There was a full and normal range of flexion extension, lateral rotation and lateral flexion movements and these movements were performed without a complaint of discomfort.
There was, therefore, no observed non-uniform loss of motion when assessing the cervical spines today.
The upper and lower arms were symmetric in dimension and there was no evidence of loss of tone, wasting or tenderness about the muscles of the upper arms or forearms.
17. Thoracic and lumbar spines (thoracolumbar)
Examination of the thoracic and lumbar spines did not reveal any skeletal deformity or abnormality.
There was no scoliosis, lumbar tilt or rotational deformity. The kyphotic and lordotic curves were normal.
Careful palpation of the spinous processes of the thoracic and lumbar spines noted discomfort at L5 and the corresponding right-sided facet at that level.
There was no associated paraspinous muscular guarding or sacrospinalis spasm and there was no region acting as a trigger area.
There was an observed fractional loss in range of movement from the expected normal of one-half when examining thoracic and lumbar flexion and extension and this reduction in movement was symmetrical.
There was a full and normal range of lateral rotation and lateral flexion movements and this movements was [sic] performed without a complaint of discomfort, although performed slowly.
There was, therefore, no observed non-uniform loss of motion when assessing the thoracic and lumbar spines today.
She sat up on the couch bending forward and the fingertips reached the upper shin.
She sat on the edge of the couch and she could achieve 90 degrees of bilateral hip flexion with the legs outstretched and this is usually associated with at least 70 degrees of active straight leg raising.
The sciatic stretch test was negative.
Power in the quadriceps, hamstrings, extensor and flexor hallucis longus muscles was equivalent.
There was not any measured muscle wasting in the thigh or calf.
There were no sensory disturbances detected when assessing the lower limbs that followed any anatomically-derived dermatome and reflexes were present and equivalent at the knee and ankle.
18. Upper extremity
Examination of the shoulders showed the bony and soft tissue contours to be equivalent with no rotator cuff or spinate muscle wasting.
There was no specific tenderness on palpating the acromioclavicular joints.
There were well-healed portal scars consistent with previous right shoulder surgery. These scars were less than 1cm in length, well healed with no distinguishing features, apart from a minor contour defect.
…the scarring of the shoulders (in particular) was associated with extensive vitiligo, making identification of the scars almost impossible.
…looking at the shoulder from a distance (say 3ft), the scars were unable to be differentiated from the vitiligo distribution.
The following shoulder movements were obtained (goniometer verified):
Measurement RIGHT Measurement LEFT Flexion 180° 140° Extension 50° 40° Adduction 40° 40° Abduction 160° 160° Internal Rotation 80° 80° External Rotation 80° 80°
Power throughout the range was equivalent.
Specific Right Shoulder Tests
The Jobe, Neer and Hawkins impingement signs were negative.
The O'Brien's sign was negative.
The Yergason and Apprehension tests were negative.
19. Comments on consistency
She was undemonstrative and there was no inconsistency in her performance.
Review of Documentation
([20] not reproduced)
…
21. Medical Assessor Menogue’s summary of relevant radiological and medical imaging and other investigations
24/4/2019 - MRI cervical spine - There are degenerative changes noted at CS/6 and C6/7 without evidence of neural impingement.
29/4/2019 - MRI lumbar spine - Degenerative changes noted at L3/4, L4/5 and L5/S1 but without evidence of nerve root impingement.
11/7/2019 - Ultrasound right shoulder - Full-thickness tear supraspinatus tendon. There was tendinosis involving the subscapular muscle tendon complex. There was associated subacromial bursitis. There was acromioclavicular joint degeneration.
16/3/2020 - MRI cervical spine - Unchanged from assessment of 24/4/2019.
19/3/2020- MRI lumbar spine - Unchanged from assessment of 29/4/2019.
21/3/2020 - MRI thoracic spine - Scattered degenerative changes noted throughout thoracic spine, notably TS/6 and Tll/12.
26/3/2020- Nerve conduction studies - Consistent with bilateral carpal tunnel syndrome.
11/5/2020 - Steroid injection right C6 nerve root.
1/2/2022 - MRI cervical spine - Degenerative changes from C3 through to C7 without hard evidence
of nerve root impingement.
7/4/2022 - MRI right wrist - Right carpal tunnel syndrome noted without evidence of scar tissue.
…
Medical Assessor Menogue’s determinations - Permanent impairment
23. Causation and reasons
The claimant was involved in a motor vehicle accident on 22 January 2019, where she was hit in the rear by a following car. No airbags deployed, no ambulance or police attended, and she did not visit the
Emergency Department of a nearby hospital. She was able to drive home.
She continued to work and it was three weeks before she sought medical attention. That assessment referred to symptoms involving the neck, low back and right shoulder.
Imaging has been undertaken relating to the neck, low back and right shoulder. Whilst the imaging has identified evidence of pre-existing degenerative disease, there is no reference in the documents studied of ongoing medical care involving these three regions immediately prior to the subject accident.
Medical Assessor Menogue referred to the various general practices she attended and the entries prior to the subject accident. No prior management to neck, back and right shoulder was recorded in the pre accident period.
Medical Assessor Menogue considered there was sufficient evidence in the documents studied, and these include Certificates of Fitness and referrals for physiotherapy, to establish a causal relationship between the subject accident and the cervical spine, the right shoulder and the lumbar spine but not the left shoulder. There is contemporaneous evidence of a left shoulder injury in the second MVA only.
Medical Assessor Menogue did not consider there was any evidence to support a causal relationship between the subject accident and a carpal tunnel syndrome (whether it be right wrist or left wrist).
He did not consider there is sufficient evidence in the literature to establish a causal relationship between carpal tunnel syndrome and a motor vehicle accident as described by the claimant.
There is an association between carpal tunnel syndrome in middle-aged women who are somewhat overweight, particularly if there is associated diabetes, thyroid disorder, and if the party smokes.
Whilst there had been evidence presented that the claimant did experience symptoms and signs in the upper limbs consistent with carpal tunnel syndrome, and that she did undergo carpal tunnel release (which is reasonable and necessary), Medical Assessor Menogue did not consider that the development of this pathology is causally related to the subject accident.
Therefore, any scarring relating to the hands consequent of that surgery is also not causally related to the subject accident.
She did sustain scarring from the right shoulder arthroscopies and Medical Assessor Menogue considered this scarring to be causally related to the subject accident.
24. Medical Assessor Menogue’s diagnosis and reasons
Following on from the above section involving causation and reasons, the following fuller explanation is provided in regard to the regions listed for assessment.
Cervical spine
There is contemporaneous evidence of ongoing symptoms relating to the cervical spine. There has been physiotherapy targeted toward that region and imaging involving the cervical spine.
Whilst the imaging identifies significant pre-existing degenerative change without evidence of nerve root impingement, he was satisfied that the reason for ordering these investigations was based on symptoms that developed post-accident.
Medical Assessor Menogue did not consider there had been an injury and consequent pathology that would result in radiculopathy. Symptoms relating to the upper limb have become somewhat confused with the carpal tunnel syndrome, and Medical Assessor Menogue did not consider there was evidence of radicular elements or signs of verifiable radiculopathy involving the upper limbs that could be linked to any cervical disorder causally related to the subject accident.
The management of her condition, including an initial three-week period before seeking medical attention, is one of a soft tissue injury without radiculopathy.
His assessment, including the examination of the cervical spine, has not revealed evidence of verifiable radiculopathy. The symptoms of sensory change involving the upper limbs are patchy and inconsistent. The imaging of the cervical spine does not identify any nerve root entrapment. The sensory deficit description does not follow any anatomically derived dermatome. Symptoms of residual carpal tunnel syndrome persist, based on today's assessment.
Therefore, her diagnosis in regard to the cervical spine was a soft tissue injury to the cervical spine without radiculopathy.
Right and left shoulders
There was evidence of discomfort and pain involving the right shoulder and this was well documented in the GP entry of 13 February 2019.
She continued to experience right shoulder symptoms and required an ultrasound in July 2019, and subsequent arthroscopic repair of the rotator cuff in late 2019.
Whether the rotator cuff required surgical intervention at that time is not relevant. There are no records of right shoulder management for any pain or reduced range of movement in documents studied prior to the subject accident.
Her right shoulder symptoms were well documented in the early post-accident period and despite conservative treatment, required surgical intervention.
The claimant indicated that she considers that the combination of the rotator cuff repair in 2019 and the revision in 2021 had resulted in a good outcome.
Medical Assessor Menogue considered that her diagnosis was soft tissue injury to the right shoulder in the form of an aggravation of her pre-existing right rotator cuff disease, which has been appropriately managed with rotator cuff repair.
Her diagnosis therefore is soft tissue injury to the right shoulder in the form of a rotator cuff injury; subacromial bursitis is often a natural sequelae to rotator cuff disease.
There was no diagnosis to be made in regard to the left shoulder, as there was no evidence that the left shoulder was injured in the first motor vehicle accident.
Medical Assessor Menogue was not been asked to assess injuries relating to the second motor vehicle accident of 6 March 2021.
Lumbar spine
There was evidence of a soft tissue injury involving the lumbar spine, notably an aggravation of preexisting lumbar spondylosis, which was noted in the MRI performed on 29 April 2019.
Perusal of all documents has not identified evidence of verifiable radiculopathy, and certainly based on today's assessment there is no evidence of verifiable radiculopathy at today's examination.
The sensory deficit description obtained on examination does not follow any anatomically derived dermatome and is a manifestation of a mechanical disorder. Imaging has not identified nerve root entrapment involving the lumbar spine.
Therefore, her diagnosis is a soft tissue injury to the lumbar spine without radiculopathy – nonverifiable and verifiable.
Summary of injuries referred for assessment to Medical Assessor Menogue
25. The following injuries WERE caused by the motor accident:
• Cervical spine - soft tissue injury without non verifiable or verifiable radiculopathy
• Right shoulder - soft tissue injury- rotator cuff tear with associated subacromial bursitis
• Lumbar spine - soft tissue injury without non verifiable or verifiable radiculopathy
The claimant’s cervical spine has been assessed initially from Table 7 MA Permanent Impairment Guidelines June 2018, page 27; and then from Table 73 of the Fourth Edition of the AMA Guides.
There was no evidence of muscle guarding present on the day and no loss of cervical lordosis. Medical Assessor Menogue performed a very careful and full examination of her neck, including the right and left trapezius muscles, noting there was no evidence of muscle guarding or dysmetria at today's cervical examination.
The imaging performed has revealed significant evidence of pre-existing cervical disease characterised by degenerative change, but no evidence of nerve root impingement.
There was no evidence of non-verifiable or true radiculopathy when assessing both upper limbs today (refer MA Permanent Impairment Guidelines June 2018, page 33, Paragraph 1.138).
The history recorded of no referred pain from the neck to the upper limb is noted. The description of sensory changes involving the upper limb does not follow any anatomically-derived dermatome and is considered to be mechanical in nature and confused with residual carpal tunnel syndrome.
Naturally, any upper limb sensory changes that are residual from her carpal tunnel syndrome are not causally related to any injury sustained in the subject accident.
Therefore, she would be classified as DRE Category I from Table 73 of the Fourth Edition of the AMA Guides and this gives 0% whole person impairment.
In regard to the lumbar spine, there is reported low right of centre discomfort that was localised.
There were no objective findings on examination confirming dysmetria or muscle guarding; there was no loss of lumbar lordosis.
There were no symptoms or signs to suggest radicular features or verifiable radiculopathy in the lower limbs and therefore she would be classified as DRE Category I assessed initially from Table 7 MA
Permanent Impairment Guidelines June 2018, page 27; and then from Table 72 of the AMA Guides Edition Four. She would receive 0% whole person impairment.
The recorded sensory changes involving the lower limb do not follow any anatomically derived dermatome and are considered mechanical in nature.
Examination of both shoulders and considering the range of motion of the shoulder joint and in particular AMA Guides Edition Four, Figures 38, 41 and 44 would indicate that the right shoulder would attract 1% whole person impairment from today's examination.
There is scarring relating to the right shoulder which is residual from surgery that was considered reasonable and necessary for managing her right shoulder rotator cuff injury.
The scarring has been assessed using the TEMSKI chart, which uses the principle of best fit. The following features were noted:
• She was not conscious of the scar.
• There was a good colour match with surrounding skin.
• She was able to locate the scar.
• There were no trophic changes.
• Staple marks were not visible.
• Anatomical location of the scar was not visible with usual clothing.
• There was a minor contour effect.
• There were no effects on any activities of daily living.
• No treatment was required.
• There was no adherence.
The presence of a minor contour effect as the sole distinguishing feature was not sufficient to place her in the 1% whole person impairment column.
Medical Assessor Menogue considered her right shoulder scarring was best described in the 0% whole person column.
26. The following injuries WERE NOT caused by the motor accident:
• Cervical spine - disc protrusions, post-traumatic stiffness with dysmetria and radicular complaint at C6/7
• Lumbar spine - Disc herniations, right lumbosacral facet arthralgia, muscle spasm, radicular complaint and right thigh sciatica
…
Summary of injuries not referred for assessment but caused by the motor accident
29. The following injuries WERE NOT listed by the parties but WERE caused by the motor accident :
Nil.
The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
30. Permanent Impairment Table
The explanation for the permanent impairment has been provided in paragraph 25.
| Body Part or system | AMA4 Guides/Guideline References (chapter/page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spines | Chapter 3, Table 73 | Yes | 0 | 0 | 0 |
| 2 | Lumbar spine | Chapter 3, Table 72 | Yes | 0 | 0 | 0 |
| 3 | Right shoulder | Chapter 3, Figures 38, 41 &44 | Yes | 1 | 0 | 1 |
| 4 | Scarring right shoulder | TEMSKI | Yes | 0 | 0 | 0 |
* %WPI = percentage whole person impairment
…
Degree of permanent impairment caused by the motor accident as assessed by Medical Assessor Menogue 33. 1%
Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of zero percent permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.”
THE PANEL’S EXAMINATION AND REPORT
The medical examination was conducted by Medical Assessors Moloney and Stubbs.
Panel’s history of the accident
The claimant gave the following history of the accident:
“[The claimant] was the driver of her car and was stationary when hit from the rear on 21 January 2019. She was wearing a seatbelt at the time but airbags were not deployed. She stated she was able to drive home and the ambulance and police officers did not attend the scene of the accident. [The claimant] states that she had initial pain in the right shoulder, neck and low back pain which she treated with Panadol and Nurofen.”
(the history of the accident does not differ in material way from that given at [9])
Subsequent history and treatment taken by the Panel
Despite the initial pain, the claimant was able to continue working part-time for three hours per day. He eventually consulted her general practitioner (GP) three weeks after the accident and was treated with analgesics and physiotherapy. A month after this her GP organised MRIs investigations of the cervical and lumbar spine and an ultrasound of the right shoulder in
July 2019. Due to persistent shoulder pain, the claimant was referred to Dr Murrell, shoulder specialist. He undertook an arthroscopic rotator cuff repair on 21 November 2019 and there was initial improvement. Post operatively she wore a sling for six weeks.
In early 2020, there was a development of pain down the right arm to the hand associated with cramps which she feels is aggravated by wearing a sling. The GP referred her to Dr Bazina, neurosurgeon. After nerve conduction studies confirm bilateral carpal tunnel syndrome,
Dr Bazina undertook a left carpal tunnel release in August 2020 and a right carpal tunnel release in March 2021. The claimant states that there was no improvement in these two procedures in her hand pain.
Due to persistent right shoulder discomfort, her GP referred back to Professor Murrell and a second arthroscopic procedure was undertaken on the right shoulder but again gave no significant benefit.
History of subsequent injury sustained since the motor accident
There was a second motor vehicle accident on 6 March 2021. This was a T-bone collision when another car hit the left side of her car. At that time, she had pain all over and in particular the left shoulder and left knee.
Current symptoms as told to the Panel
At present, the claimant has persistent central neck pain which radiates down the right arm. There was also intermittent pins and needles in the right elbow to the first three fingers on the right hand. She considers that this increases with use and wakes her at night. There is a poor sleep pattern, and she states that there has been no benefit from the carpal tunnel surgery. There is a constant right shoulder pain which is anterior and posterior which increases with abduction greater than 90°. She considers that there is weakness in her grip causing her to drop objects.
There is a central low back pain which increases with prolonged sitting and radiates down the right leg to the foot in the posterior distribution. Walking makes this a little better.
There has been no return to work since 2019.
History of current treatment
Present medication is Mobic 15 mg a day, Mersyndol Forte two per day, an antidepressant, Efexor 150 mg a day. She has ceased taking Lyrica and Endep due to side-effects. Physiotherapy is being funded on a weekly basis for treatment of the left shoulder since the second accident.
CLINICAL EXAMINATION
The claimant walked into the medical suite with a normal gait and sat comfortably during the interview. She stated that she is right-handed. Height was measured at 169 cm and weight 124 kg.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension, rotation and side bending were all 50% of expected range with no asymmetry. On palpation there was no guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power. There was no atrophy of the hand muscles. The circumference of the upper arms were 47 cm in the right and 47.5 cm on the left (10 cm above the olecranon process) and in the upper forearm 37 cm bilaterally. On testing for power, the left hand was 5/5 and the right 4/5. Tinel’s test was positive on the right and left side at the level of the wrist but negative at the level of the elbows.
Lumbar spine
The claimant had a normal gait but had difficulty standing on heels and toes. On testing range of movement, flexion/extension was 50% of expected range as was side bending bilaterally. Rotation was 30% of expected range bilaterally with no asymmetry. Straight leg raise on lying was 60° on the right 70° on the left and limited by low back pain. Straight leg raise when seated was 80° bilaterally with no pain and negative sciatic nerve root tension signs. There was no guarding or spasm noted on palpation of the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the lower thighs 69 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 49 cm bilaterally.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. Active movement was measured using a goniometer and repeated three times. Abduction was limited by pain once past 90°. Internal rotation to the left was possible to the level of the sacrum and to the first lumbar vertebra on the right.
It was noted by the Panel that there was inconsistency when testing range of movement of both shoulders and in particular there had been a dramatic deterioration in range in comparison to those recorded by the Medical Assessor in March 2023. The Panel informed the claimant that due to this inconsistency range of movement could not be used to assess impairment, but another method would be needed by analogy. She stated that she understood this.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 100°/120° | 90°/120° |
| Extension | 30° | 20°/30° |
| Adduction | 40° | 40° |
| Abduction | 90° | 90° |
| Internal Rotation | 90° | 80° |
| External Rotation | 90° | 90° |
Panel’s comments on the medical examination of the claimant
Shoulders
Can only be assessed by analogy due to inconsistency at the time of our examination and previously. This could be by mild acromioclavicular joint crepitation with Table 18 which is
15% WPI and table 19 10% of the joint which equals 1.5% and rounded up to 2% WPI. Question both shoulders but the Panel noted that it was only asked to assess right shoulder.
Lumbar spine
No radiculopathy. Variable pain distribution but probably DRE category 1.
Cervical spine
DRE category 1 = 0% WPI.
Scarring
Right shoulder by TEMSKI. Small arthroscopic portals of 1cm. She is not conscious of these, no colour contrast, no trophic on contour changes, not usually visibly but can locate them. Classification of best fit is 0% WPI. Wrist surgery? related to motor vehicle accident (scars also 0% WPI).
Carpal tunnel
Carpal tunnel syndrome is common and has a variety of non-anatomic causes. It is sometimes seen after accidents, about one in 20 distal radial fractures will have associated carpal tunnel symptoms. These reflect the swelling associated with fracture, appear within 48 hours and usually resolve as the fracture heals and the swelling diminishes. The claimant mentioned during the interval that she had two median nerves in each wrist. Technically she has one median nerve as two distinct bundles (bifid median nerve). This is a normal part of the embryonic development caused by the interposition of the median artery amongst the nerve bundles in early development. The nerve functions normally, the median artery remains small and usually disappear before or just after birth. However, the cross-sectional area of the bifid median nerve is greater usual and the likelihood of carpal tunnel syndrome developing is higher than normal. Bifid median nerve is often found during carpal tunnel decompression at open operation and treated as a normal anatomical variation. It is about three times more common than the usual single median nerve in carpal tunnel syndrome. Identifying it preoperatively is important if arthroscopic carpal tunnel decompression is planned. The possibility of nerve injury is increased with this technique if the condition is unanticipated. In her April 2022 letter to Dr Tonka, Dr Bazina confirmed a post operative MRI has revealed the presence of the bifid median nerve on the right side.
OTHER EVIDENCE
The Panel had available to it a bundle (Review Panel bundle) consisting of 310 pages that it reviewed in so far as relevant.
The Panel had available to it the reports of diagnostic investigations provided in the bundle and these were reviewed.
Medical reports
The Panel read the report of Dr Renata Bazina, neurosurgeon, of 12 June 2020, partly reproduced below:
“I saw BTV today in my Liverpool Rooms Friday 5 June 2020 with her nerve conduction studies which were completed just before the Covid-19 lockdown. They confirm she has bilateral carpel tunnel syndrome and severe [sic]. She is losing function with her hands day-to-day. The symptoms triggered by the motor vehicle accident at which time-she was gripping wheel. Normal splinting has not helped. I have confirmed. The cervical, thoracic, and lumbar imaging does not warrant any surgical interventions. She is keen to proceed with surgery of her dominant hand first and then upon recovery I will proceed with the left. We will seek the Insurers approval.”
The Panel had available the report of Professor George Murrell, shoulder specialist, of
18 May 2020:
“I reviewed BTV today. It is six months since rotator cuff repair of her right shoulder. She is very happy with the shoulder, and is back to full activities.
Examination today shows the shoulder has a slightly restricted range of motion, and is strong in strength testing. There is no mechanical impingement.
Ultrasound is very helpful, it shows the rotator cuff to be: Intact - normal post-op appearance.
Assessment: Very good outcome from rotator cuff repair right shoulder.
Plan: We may contact her in several years to see how she is going, but
otherwise I do not need to see her again.”The Panel had available the report of Dr Grant Walker, neurologist, of 30 December 2021, who provided his diagnosis on page 4:
“Injuries caused by the MVA were to her right shoulder, cervical spine, and lumbar spine. Injuries not caused by the MVA were to her right knee, left knee, left shoulder and carpal tunnel syndrome.”
Dr Walker assessed the claimant’s WPI on page 5:
“I cannot comment as to the whole person impairment in respect of her right shoulder. In respect of her cervical spine there is a category I impairment (localised pain only) which equates to 0% impairment. In the lumbar spine there is a category II impairment (non-verifiable radicular symptoms) which equates to 5%. Her overall impairment is therefore 5% plus any additional impairment in respect of her shoulder. All other complaints have no relationship to the accident.”
The Panel noted the report of Dr Robert Breit, orthopaedic surgeon, of 9 February 2022.
The Panel had available the report of Dr Drew Dixon, orthopaedic surgeon, of 15 August 2022.
The claimant developed bilateral carpal tunnel syndrome several months after the motor vehicle accident. Carpal tunnel syndrome was not in the referred complaints for review but had been raised in the claimant’s solicitor’s submissions, with the implication that bilateral carpal tunnel syndrome was caused by the motor vehicle accident. The matter had been addressed by Dr Bazina and Dr Dixon, though neither gave any detailed reasoning and seemed to be working on the principle of post hoc ergo proctor hoc.
SUBMISSIONS
Submissions of the claimant of 15 May 2023
The Panel reproduces the claimant’s submissions:
“CARPAL TUNNEL
The claimant relies on the opinion of Dr Dixon on the issue of the causal relationship between the subject accident and the carpal tunnel syndrome. Dr Dixon concludes that the syndrome could be causal because the claimant was ‘gripping the steering wheel at the time of the accident.’
The claimant’s treating neurosurgeon Dr Bazina (12/6/20) concludes that the symptoms were triggered by the subject motor vehicle accident at ‘which time she was gripping the steering wheel.’
The insurer relies on the opinion of Dr Breit who considered that the carpal tunnel syndrome was unrelated to the subject accident without explanation other than positing that it is constitutional. This explanation is offered even though the claimant did not have any symptoms prior to the subject accident.
The Assessor determined that there was no evidence to support a causal relationship despite acknowledging ‘..there has been evidence presented that the claimant did experience symptoms and signs in the upper limbs consistent with carpal tunnel syndrome, and that she did undergo carpal tunnel release (which is reasonable and necessary)….’
The Assessor also states he does ‘not consider there is sufficient evidence in the literature to establish a causal relationship..’
Presumably relying on the said literature, the Assessor states that “there is association between carpal tunnel syndrome and middle-aged women who are somewhat overweight, particularly if there is associated diabetes, thyroid disorder.” There is no evidence that the claimant is suffering from such disorders. These are matters which in fairness to the claimant should have been put to her by the Assessor.
Moreover, in this case the medical material reveals that the claimant did not have preexisting carpal tunnel symptoms and that the insurer accepted liability for the cost of release surgery which the Assessor determined was reasonable and necessary.
It is submitted that the determination on this issue is therefore incorrect for two reasons.
First the Assessor failed to engage with Dr Dixon’s clearly articulated argument on causation. Secondly the Assessor relied on literature which had not been provided to the parties for comment and submissions prior to final determination. The claimant was thus denied procedural fairness.
The Certificate should accordingly be referred to the Review Panel to determine the percentage impairment arising from the scarring caused by the carpal tunnel release surgery and the impairment arising from the symptoms of residual carpal tunnel syndrome as found by the Assessor.
The Review Panel could also consider whether the upper limb sensory changes are residual from the carpal tunnel syndrome (as found by the Assessor) or whether such changes are evidence of radiculopathy form the injury to the cervical spine.
CERVICAL SPINE
The Assessor found that there is sufficient evidence to establish a causal relationship between the subject accident and injury to the cervical spine.
The investigations confirm disc herniation at two levels.
The Assessor found “midline discomfort on palpating C7 spinous process and the rightsided facet at that level” being clinical signs of neck injury.
It is accordingly submitted that the assessment is incorrect and that the appropriate description should be DRE II resulting in 5% WPI.
LUMBAR SPINE
The Assessor found that there is sufficient evidence to establish a causal relationship between the subject accident and the injury to the lumbar spine.
The investigations confirm multiple disc injury in the lumbar spine.
MRI of the lumbosacral spine on 19 March 2020 showed no fracture but there was degenerative anterolisthesis of L4/5 with stenosis and mild disc herniation at L3/4 and central herniation at L5/S1.
The clinical notes of the claimant’s GP Dr Tomka reveal pain to lumbo-sacral region since the date of the accident. Examination on 13 February 2019 found limited range of movement with respect to the lumbar spine.
The claimant’s IME Dr Dixon (15 August 2022) found 5% WPI on the basis of a finding of post traumatic stiffness, right sided athralgia clinically with disc protrusions and right thigh sciatica. Dr Dixon found non-uniform loss of motion on examination.
Although the Assessor did not observe non-uniform loss of motion when assessing the lumbar spine he failed to record the measurements to allow an objective assessment of the findings. This is important in circumstances where the Assessor records that the claimant ‘describes an intermittent, right lower lumbar which is localised. The discomfort can spread to the right buttock region.’ (Para 12)
The Assessor also records that there was a ‘description of further distal sensory changes, but these were patchy and did not follow any anatomically described dermatome.’ It is submitted that it was incumbent on the Assessor to properly explain the information being sought and obtain sufficient information to make a proper determination. The Assessor should have recorded the ‘patchy’ description to enable an objective assessment of his conclusions.
Even if it is accepted that the Assessor did not find radiculopathy (which is not admitted) a proper explanation has not been provided as to why the clinical findings are not consistent with a finding of non-verifiable radiculopathy.
This is important in circumstances where the insurer relies on the opinion of Dr Walker (31/12/21) who records that the claimant “still has lower back pain which is more to the right side and tends to radiate down the back and right leg to the calf.” Dr Walker found WPI of 5%.
It is submitted that the Certificate should be referred to the Review Panel to examine the claimant and determine whether there is evidence of radiculopathy whether verifiable or non-verifiable with respect to the accepted injury to the lumbar spine which would give rise to a WPI of 5%.
RIGHT SHOULDER
The Assessor found there is sufficient evidence to establish a causal relationship between the subject accident and injury to the right shoulder. The Assessor concludes however that the claimant sustained a soft tissue injury in the form of a rotator cuff injury.
The Assessor states that the claimant denies any specific shoulder problems (Para 12). This is not consistent with the clinical material provided and the claim for permanent impairment generally.
At examination on 12 July 2022 Dr Dixon (15/8/22) found non uniform loss of motion and although acknowledging improvement after the operative interventions recorded that the claimant continued to experience pain and stiffness.
The Assessor refers to the report from Dr Murrell of 18 May 2020 (see para 10) wherein it is noted, ‘Good result. See if necessary.’ The Assessor however fails to acknowledge and consider Dr Murrell’s comments in his last report dated 2 May 2022 wherein he states, ‘She has had ongoing problems with the right shoulder.’ Indeed the Assessor’s comments about there not being any specific shoulder symptoms is not consistent with his comments at para 12 wherein he states, ‘She does experience variable sensory changes in the form of numbness involving the anterior aspect of the right upper arm, anterior aspect of the forearm.’Moreover, despite noting that there is no diagnosis to be made in regard to the left shoulder and that the Assessor has not been asked to assess injuries relating to the second accident (which involved injury to the left shoulder) the Assessor measured range of motion of the left shoulder presumably as a baseline for assessment of the right shoulder range of motion.
If that is the case the Assessor has failed to recognise that the contralateral joint can only serve as a baseline if it is uninjured and only if there is a reasonable expectation that the
injured joint would have had similar findings to the ‘uninjured’ joint before injury. The rationale for this decision must be explained in the impairment evaluation report. (claimant’s emphasis) If the Assessor did not use the measurements of the left shoulder as a baseline for measurement of the right shoulder range of motion then he should have explained the relevance of the left shoulder measurements.
It is accordingly submitted that the claimant should be referred to the Review Panel to determine afresh the injury to the right shoulder and any associated permanent impairment noting the doubts raised by the Assessor’s findings on examination and the method used to assess permanent impairment.”
Submissions in reply of the insurer of 2 June 2023
The Panel reproduces the submissions:
“14. The claimant alleges four grounds of review. Where the claimant has addressed each injury individually, the insurer will address each ground of review.
Ground 1: Failure to comply with guidelines of assessment for permanent impairment
15. The claimant submits that Assessor Menogue has failed to comply with the guidelines for assessment of permanent impairment, notably in relation to the right shoulder injury.
16. Assessor Menogue has provided at Paragraph 25 of the Certificate that examination of both shoulders was made in reference and consideration to the Motor Accidents Permanent Impairment Guidelines at Table 7; and Table 72 of the AMA Guides to Evaluation of Permanent Impairment. In doing so, Assessor Menogue has examined and identified the claimant’s symptoms in relation to each diagnostic marker for shoulder impairment and commented on where the claimant fits into these, such as no tenderness on palpation, and measurement of all planes of motion using a goniometer.
17. Assessor has taken and relied upon a history of symptoms from the claimant at the time of assessment. It does not appear the claimant had indicated any severity of issues pertaining to the left shoulder as a result of the second accident. In paragraph 11, Assessor notes the claimant reported conservative treatment only for the left shoulder.
18. The range of motion of the left shoulder was more impaired than the right (lower results in flexion and extension). The claimant’s argument that there was no explanation for the reason of the left shoulder measurements is redundant where there is no detriment or confusion suffered by including the motion recordings.
19. The insurer submits Assessor Menogue has complied with the requirements and guidelines for assessing permanent impairment of the right shoulder, when using the left shoulder as a baseline.
Ground 2: Failure to expose the path of reasoning in arriving to decision
20. The claimant alleges that Assessor Menogue has not provided a clear path of reasoning for determining the cervical spine injury to be DRE I; and that the evidence draws closer to a finding of DRE II.
21. Assessor reports the lack of clinical indications such as discomfort on palpating ligaments, no evidence of muscle guarding and more, in accordance with the AMA Permanent Impairment Guidelines.
22. At Paragraph 16, Assessor reports a full and normal range of motion without complaint of discomfort. There was no reason to supply a full ROM table where the recordings were within the accepted normal range.
23. The insurer submits the Assessor has provided ample reasoning for his determination of cervical spine injuries giving rise to no impairment.
24. Furthermore, the claimant suggests Assessor Menogue does not provide an explanation as to why the clinical findings are not consistent with non-verifiable radiculopathy in the lumbar spine.
25. The insurer submits there was no requirement to provide extensive reasoning of the lack of non-verifiable radiculopathy, where Assessor has detailed the lack of symptoms in accordance with the AMA guidelines, such as discomfort on palpation, muscle guarding and fractional loss of ROM in flexion and extension; where there was full ROM of rotation and lateral flexion.
Ground 3: Failure to acknowledge and engage with material to determine causation
26. The insurer submits the role of the Assessor is to examine the claimant and come to his or her own determination as to the claimant’s injuries and diagnosis.
27. The fact the Assessor may have alternate examination findings to that of the claimant’s medico-legal doctor does not make the Certificate incorrect in a material respect. He clearly applied his own medical expertise in making his determination.
28. Furthermore, the Assessor has considered the relevant clinical notes and other medical evidence before him in his determination, including the reports alleging symptoms of radiculopathy. At Paragraph 5, Assessor expressly states he has considered the documents in the application and reply. At Paragraph 20, the Assessor provides a fairly extensive summary of relevant documentation before him.
29. The Assessor was allowed, and in fact required, to come to his own assessment findings, regardless of whether they were consistent with the previous findings of other medical practitioners.
Ground 4: Failure to request comment in relation to additional literature relied upon
30. The insurer submits the commentary made by Assessor Menogue as to the claimant’s carpal tunnel syndrome and its connection to women with an increased BMI was not in reference to additional literature. The Assessor summarised and commented on the report of Dr Breit who opined a similar stance that there is an increased risk in carpal tunnel in peri-menopausal women with a higher BMI.
31. There was no additional literature relied upon nor was it necessary for commentary or submissions to be made in this regard. The medical assessor has experience and expertise in the area/s examined and need not be overly scrutinised for using medical judgement.”
LEGISLATIVE FRAMEWORK
CAUSATION
Guidelines
With respect to causation, the Motor Accident Injuries Guidelines (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
PANEL’S CONCLUSION
The Panel concludes that the aggregate WPI of the claimant is as follows:
· right shoulder 2%
· lumbar spine DRE category 1 = 0%
· cervical spine DRE category 1 = 0%
· scarring TEMSKI = 0%
Total WPI: 2%
The Panel revokes the Certificate of Medical Assessor Nigel Menogue of 16 April 2023 and certifies that the claimant’s permanent impairment arising from the injuries sustained in the accident gave rise to 2% WPI.
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