Claassens v QBE Insurance (Australia) Limited
[2024] NSWPICMP 357
•3 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Claassens v QBE Insurance (Australia) Limited [2024] NSWPICMP 357 |
| CLAIMANT: | Bethany Claassens |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of 6% WPI assessment by Medical Assessor (MA) Tamba-Lebbie; MA had found all injuries were aggravation and acceleration injuries of degenerative changes and reduced impairment percentages by 50% for the degenerative changes; claimant alleged injuries to neck, back, left shoulder and that she had symptoms in her left arm and hand after a high-speed accident in October 2019; claimant had second accident a year after the current accident; Held – claimant did injure her neck, lower back and left shoulder in the accident but that there was no frank or specific injury to the left arm or hand; WPI assessed at 5% for the neck, 0% for the lower back, 2% for the left shoulder and there were no other assessable impairments; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Tamba-Lebbie dated 26 October 2023. 2. Certifies that the degree of Bethany Claassens’ permanent impairment resulting from the injuries sustained in the motor accident on 10 October 2019 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Bethany Claassens was involved in a motor accident on 10 October 2019. She describes how the accident happened in her claim form:
“Driving on M4 middle lane, … truck in right hand lane. Speed 100 kms per hour merged into my lane hit back passenger right hand door, spun my vehicle in front of truck. Right driver door and passenger door hit truck bumper bar at front. Pushed my vehicle up M4 approximately 100 metres until truck could stop.”
Ms Claassens says she injured her spine (cervical, thoracic and lumbar) and left upper extremity (shoulder, arm and hand) in the accident as well as developing a psychological injury. Ms Claassens made a claim for damages against QBE, the third-party insurer of the vehicle that hit her.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and Ms Claassens referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Tamba-Lebbie determined on 26 October 2023 that Ms Claassens did not have a WPI of greater than 10% (he found 6%).
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 22 January 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 the President’s delegate convened this Panel to conduct the Review.
On 16 May 2024 the President’s delegate reconvened the Panel to include Member Cassidy.
LEGISLATIVE FRAMEWORK
General
Ms Claassens’ claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
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.
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 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
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 Tamba-Lebbie’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.
In accordance with s 7.26 of the MAI Act, applications for review are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (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 to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B)). The review is not necessarily 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” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits a Review Panel to determine its own procedures and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
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
Medical Assessor Tamba-Lebbie confirms at [2] that he was asked to assess:
(a) orthopaedic injury, aggravation and acceleration of degenerative changes in the cervical, thoracic and lumbar spine;
(b) left rotator cuff tear, orthopaedic injury, aggravation and acceleration of degenerative changes pain and restricted movement due to cervical spine injury, and
(c) left arm and hand – orthopaedic injury, aggravation and acceleration of degenerative changes.
At [8] the Medical Assessor notes the claimant is 30 years of age and says, “she was in very good health and very active before her injury.”
The Medical Assessor has at [9] a history of the accident noting she was driving her car on her way to work travelling at 100kmph when a truck veered off course in the lane next to her and hit the back of her car, spinning it into the front of the truck which then pushed her car until the truck stopped. Police attended the scene, but an ambulance was called off.
The claimant returned to work as a correctional officer for a month before going off work on 11 November 2019 due to a significant rotator cuff diagnosis and she has not worked since.
Medical Assessor Tamba-Lebbie documents at [10] the claimant’s treatment including from her general practitioner (GP), the investigations she has had, physiotherapy and hydrotherapy, pain specialist treatment, injections in her left shoulder and lower back, medication and counselling.
The claimant is reported at [11] to have had another accident but no details are provided.
In terms of her current symptoms, it is recorded at [12] that she has daily neck pain. She says she feels weakness in the left shoulder and has pain into her left hand. She has pain around her thoracic area and left shoulder and pain in her lumbar spine which can be so severe she collapses.
Her neck was examined and there was “asymmetrical cervical spine” motion but normal neurological examination in the upper limbs. There was said to be no dysmetria in the thoracic spine, no non-verifiable radicular symptoms and no guarding. The claimant had pain in the lower back but not of a radiating nature, no muscle guarding and hyperactive reflexes.
Medical Assessor Tamba-Lebbie found at [23] that the claimant sustained injuries aggravating degenerative changes all caused by the accident. He considered at [24] and [25] that all aggravations were permanent.
For all three areas of the spine, he assessed a Diagnostic Related Estimate (DRE) category I which translates to 0%.
He found a 1% upper extremity impairment due to restriction of shoulder flexion. Elbow and wrist movements were reported as normal.
There was 32% impairment of the thumbs, 7% impairment of the left index finger, 12% impairment of the left middle finger, 13% impairment of the left ring finger and 12% impairment of the left little finger. The total translated to a 19% hand impairment, 17% upper extremity impairment and 10% WPI.
He found all injuries caused and all impairments permanent. He deducted 5% WPI for “degenerative changes in the hand that were aggravated”. The Panel notes that no reasons were given for the findings on causation.
ISSUES FOR DETERMINATION
Claimant’s submissions
Review submissions
The claimant submits[5] that the Medical Assessor’s adjustment of the left-hand impairment for “degenerative changes … that were aggravated” is incorrect as follows.
(a) he had not followed the guidelines which requires a pre-existing impairment to be calculated and subtracted – but has “estimated” the impairment, and
(b) he had not followed cl 6.31 in that he has not identified the “objective evidence of a pre-existing, symptomatic permanent impairment”.
[5] The submissions are dated 16 November 2023 and are found at page 802 of the joint bundle.
The claimant also identifies an inconsistency in the reasons of the Medical Assessor who at [17] says there is “pain from the lower back into the buttocks but none radiates” yet at [12] he has a history from the claimant of pain radiating from her lower back into her buttocks. The claimant says this is important and a symptom of radiculopathy (this is incorrect. Radiating pain is a radicular symptom but not a sign of radiculopathy the Guidelines).
The claimant says there are inconsistencies:
(a) guarding was observed by Dr Machart but not by the Medical Assessor and this should have been put to the claimant, and
(b) the range of motion in the shoulder has varied from when the Medical Assessor examined the claimant seven months earlier for the purpose of a treatment dispute and this variation or inconsistency should have been put to the claimant.
Finally, the claimant says the Medical Assessor has failed to provide adequate reasoning for why the claimant was not in a DRE category II for the cervical spine.
Original submissions
The claimant’s original submissions[6] filed with the application for medical assessment refer to the insurer’s decision-making concerning the degree of permanent impairment and list the injuries. The submissions do not address causation, diagnosis or method of assessment.
Insurer’s submissions
[6] The document is not dated but included at page 4 of the joint bundle.
Review submissions
The insurer disputes[7] the causation of any left-hand injury or that any such injury was sustained in the accident but that in any event the Medical Assessor was entitled to form his own opinion.
[7] The insurer’s submissions are dated 11 December 2023 and included at page 808 of the joint bundle.
The alleged inconsistency in relation to the “radiation” of pain was said not to be an inconsistency. The insurer says the reference at [12] is to the claimant’s history and what she complains of. The Medical Assessor’s notation at [19] that pain does not radiate is a finding he has made based on his clinical examination.
The insurer says a finding of guarding by Dr Machart two years earlier than the Medical Assessor is also not an inconsistency within the meaning of cl 6.41. So too, the difference in shoulder motion over a seven-month period is not an inconsistency.
The insurer says the Medical Assessor has explained why the claimant satisfied the criteria for a DRE category I assessment.
Original submissions
The insurer’s submissions filed with its reply to the application for assessment are dated
28 September and 1 December 2023.[8]
[8] And are found at page 6 of the joint bundle.
The insurer says at [7] there is “relevant pre-accident medical history” as follows:
(a) a December 2014 motor accident involving a roll over and collision with a tree. The claimant sustained injuries to her scalp, left rib fractures and psychological symptoms;
(b) left knee injury in 2017, and
(c) a month before the accident on 11 September 2019 the claimant was assaulted at work “kicked multiple times in the stomach”.
The insurer notes at [12] the claimant was not treated at the scene by ambulance, did not attend hospital and that police recorded the accident as a “minor traffic crash.” The insurer also submits that on 26 June 2020 the claimant had another car accident which was more major.
The claimant was declared permanently unfit for her job in May 2021 and told her GP she was required to move due to domestic violence.
In relation to the neck injury, the insurer says the claimant did not report neck pain for two weeks after the accident (26 October 2019) and the insurer then points to the medical evidence submitting the claimant’s radicular symptoms arose months after the accident.
While the claimant included back pain and lower back pain in her claim form, the certificate of capacity dated 6 November 2019 make no mention of lumbar spine and the first certificate of capacity to mention lower back pain was provided give months after the accident. Dr Lim and Dr Soo do not mention lower back pain.
The insurer disputes any frank injury occurred to the left shoulder (and by inference the left arm and hand) and notes that the radicular symptoms arose one month after the accident following a sneezing incident. The insurer suggests left wrist symptoms were first reported in February 2021 and that left arm symptoms are mentioned in the context of pain radiating down the arm.
Procedural matters
On 14 March 2024 the Panel met and reported to the parties. The Panel advised the claimant of the medical examination date (8 March 2024), its time and location.
REVIEW OF THE EVIDENCE
The parties have provided a joint bundle comprising 1,002 pages. In accordance with the decision of Justice Basten in Rahman v Insurance Australia Limited t/as NRMA Insurance:[9]
“… A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical … the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[9] [2022] NSWSC 1079 at [63].
The Panel is of the view this passage applies to Panels as well as Medical Assessors and will only refer to the material the Panel considers relevant to the issues.
Claim form and claim documents
The claimant’s claim form was dated 2 November 2019, three weeks after the accident. The claimant lists as her injuries, “left shoulder pain, neck pain, lower back pain, migraines, back pain, numbness left arm and hand.”
Ms Claassens says she was not treated at hospital, and she had no injury or illness affecting the same parts of her body at the time of the accident.
Treating medical records and reports
General practitioner notes and certificates of capacity
The claimant saw Dr Antar of the Market Place medical centre at Richmond on
11 October 2019. He has a record of a “mild generalised headache since accident” which improved but was not eliminated by analgesia. There was no weakness, numbness or paraesthesia and no back pain recorded. No neurological signs were found on examination in the upper or lower limbs. Ms Claassens had fully intact spinal movements and no tenderness.
The claimant saw Dr Tran of the Heritage Medical Clinic on 16 October 2019. The claimant was anxious about driving and had pain in the left scapula area and left upper arm, but he records “no neck pain no arm weakness / numbness.”
On 26 October 2019 the claimant saw Dr Brdarevic at the Market Place practice who also has a history of headaches, and now neck and upper back pain. There was a full range of motion in the neck but tenderness. Radiology was ordered.
The claimant saw Dr Virk at the Market Place practice on 30 October 2019. The claimant complained of headaches and pain in the left shoulder radiating down the left arm. Range of motion was near full, and no neurological deficits were recorded.
On 6 November 2019, Dr Tran records:
“saw dr at market place twice; states has had headache and neck pain since accident; ongoing headache, neck pain, left shoulder pain down shoulder left hand; tingling of left hand; CT head and neck x-ray left shoulder pain left shoulder when sneeze, pain abduction, left shoulder /trapezius; lower back pain started to [one week] after accident. States back pain is worse pain [at the moment]; no history of neck / back pain.”
The first certificate of fitness is dated 6 November 2019 and was completed by Dr Tran. The diagnosis is “muscular pain neck, head, left shoulder, left cervical radiculopathy”. He advised Nurofen plus, Panadeine Forte and heat packs along with physiotherapy, imaging studies and neurosurgical review. There were no restrictions imposed and the comment was “rest when pain is worse”.
A further certificate of fitness was dated 9 December 2019 and completed by Dr Tran. The diagnosis was amended to “left shoulder bursitis, rotator cuff injury, musculoligamentous neck pain”. Lifting restrictions to 5kg were imposed. A similar certificate was issued by
Dr Tran on 29 January 2020 and 26 February 2020.
Dr Ling at the Market Place practice saw the claimant again on 5 March 2020 for “longstanding neck, left arm and back pain follow MVA”. On that day he referred the claimant to Dr Davidson noting the claimant had radicular pain to the left arm in a C6 distribution along with lower back pain. Dr Ling saw the claimant again and completed a certificate of fitness dated 17 March 2020, noting a diagnosis of “left shoulder rotator cuff tear, neck and lower back pain”. Further restrictions were imposed, and the claimant was certified unfit for any form of work for a week. A referral was provided for rehabilitation services from Konekt. A further certificate in similar terms from Dr Ling certified the claimant unfit for work for a month. He certified light duties in a certificate dated 15 April 2020.
In a certificate dated 27 May 2020, Dr Ling included “radicular left arm pain”. Dr Ling’s corresponding note from that day has a report of shooting pain down the left thigh after walking for 20 minutes and there is also a report of occasional shooting left arm pain.
Dr Virk from the same practice as Dr Ling completed his first certificate of fitness for the claimant on 20 August 2020. His diagnosis was “left shoulder rotator cuff tear, neck, left arm and lower back pain, anxiety / flashbacks”. He certified the claimant fit for four hours of work a day for three weeks. This continued until May 2021.
Dr Lim from a medical practice in Parramatta issued his first certificate of capacity for the claimant on 3 June 2021. This was the same day as the claimant’s first attendance upon him. He notes as the diagnosis “C3/4 and C5/6 minimal disc bulge (5/2020); L small partial supraspinatus tear (MRI 11/2019); R shoulder strain, Lumbar spine strain PTSD”. He certified the claimant totally unfit for work. This continued until the last certificate of fitness on file which is dated 20 June 2022.
Dr Lim of the workers doctors practice in Paramatta wrote a report dated 3 June 2021 to the insurer. Dr Lim noted a pre-existing condition of depression and had a list of symptoms including headaches, migraines, neck pain travelling down both shoulders, left arm pain, pins and needles in the left hand with numbness, lower back pain travelling down both legs.
Dr Lim undertook an examination noting the claimant had a full range of shoulder motion, decreased range of neck movements and says “she stays at home and does not exercise as she feels too much pain. She reported having nightmares about trucks hitting her. She has collapsed a couple of time due to shooting pain in her legs.”
On 19 July 2021, Dr Lim referred the claimant to Dr Soo for an opinion regarding constant bilateral shoulder pain left worse than right.
Physiotherapy and rehabilitation notes
There are a number of Allied Health Recovery Request (AHRR) forms on file. The first for physiotherapy is dated 21 November 2019 and refers to left shoulder bursitis, discogenic changes in the cervical spine with cervical radiculopathy and lower back pain. The physiotherapist notes pins and needles and numbness into the forearm and hand with shooting pain.
Mr Price of Penrith Physiotherapy provided a report to the insurer dated 5 March 2020 noting that there was an error in his AHRR which should have read “cervical spine referred pain” and not radiculopathy, as there were no neurological symptoms but that the arm pain was coming from her neck.
In a further letter dated 12 June 2020, Mr Price notes that the claimant has almost full range of cervical spine motion, headaches had diminished, the left shoulder motion was close to full, and the claimant was performing more exercises at home. Her back pain was more consistent.
A Benchmark Rehabilitation report dated 27 November 2019 refers to the claimant’s pre-accident knee injury and depression. The author of the report notes the claimant saw three different doctors at the medical practice and had investigations undertaken under Medicare before she submitted her claim form. She complained of constant pain in her neck and lower back, left shoulder pain, weakness in her left arm with numbness and tingling down her arm into her hand. A second assessment on 16 March 2021 expressed the view the claimant did not have the capacity to return to work in her previous job.
Specialists
The claimant was treated by Associate Professor Eftekhar who wrote to Dr Ling on
23 April 2020. He stated that the whole arm sensory changes on the left did not follow a dermatomal pattern and he could find no objective motor deficits or other neurological signs. He then did suggest the sensory changes were in a left C8 dermatome and records that the left shoulder was tender and abduction was painful and restricted. He ordered an MRI and nerve conduction studies. There is no further report or correspondence from Associate Professor Eftekhar.
Dr Deshpande, pain specialist wrote to Dr Ling after seeing the claimant on 18 June 2020. He has a record of current cervical pan and left shoulder pain with headaches and worsening of her pre-accident depression.
Dr Soo, who is in practice with Dr Lim saw the claimant on 19 July 2021 because of ongoing shoulder pain in both the claimant’s shoulders which was severe and restricting her range of motion. He requested MRI scans and a further review. There does not appear to be a further attendance on Dr Soo according to the notes.
The June 2020 accident
Unlike the current accident, ambulance attended the 26 June 2020 accident. The claimant was out of the car and complaining of neck pain and no other injuries. She was transported to hospital.
The hospital discharge summary notes the 2019 accident and symptoms and records only neck symptoms. The accident was said to have occurred at 20kmph.
In a report from the firm Rehab Consulting dated 16 September 2020 sent to NRMA (the insurer in respect of the at fault vehicle in the June 2020 accident) the claimant gave a consistent history of the accident and described all her injuries from the earlier accident. She is reported to have said that she felt her previous injuries and condition had been aggravated putting her back by a few months. She also described lower back pain on the left side extending down her left buttock in the back of the left leg above the knee. She said that before this she had right sided lower back pain but no radiation.
Surveillance reports
The insurer relies on observations and film taken from August to September 2020. The claimant was observed shopping and carrying groceries, sitting in a car, driving on the motorway and driving for 30 minutes.
Further surveillance was conducted in February 2021 and in Queensland during June and September 2022.
Radiology
The claimant had a CT scan of her brain and X-ray of her cervical spine on 28 October 2019. There was no acute abnormality in the brain detected. The X-ray indicated some degenerative changes and slightly narrowed discs at C5/6 and C6/7 and a CT scan was suggested.
A left shoulder ultrasound on 9 November 2019 revealed a 5 x 5 mm partial thickness articular surface tear of the anterior supraspinatus tendon with over lying subacromial bursitis and bursal impingement on abduction.
An MRI was done on 9 November 2020 and reported “minimal disc desiccation seen in the cervical spine without further change.”
A lumbar spine MRI dated 9 April 2020 found no evidence of significant foraminal compromise, no current evidence of facet joint synovitis, no annular fissures in the discs and mild disc desiccation involving L2/3 and L3/4 only.
Nerve conduction studies on 18 May 2020 found no abnormality in the left upper limb (normal neurological examination).
An MRI of the cervical spine was undertaken on 21 May 2020 which reported minimal disc bulges which were thought to be chronic in nature. No significant bony injury identified. The MRI of the brachial plexus revealed no evidence of injury.
A bone scan was done on 21 July 2020 due to “ongoing neck, left shoulder and lower back pain since MVA October 2019”. Minor lumbar and thoracic joint arthropathy was seen but nothing in the cervical spine. There was mild synovitis noted in the ankles and features of bilateral rotator cuff pathology and right patellar tendon enthesopathy.
An MRI of the claimant’s left shoulder was performed on 5 May 2023 due to ongoing left sided shoulder pain and restricted movement. There was minor low grade sub-acute tendinopathy in the supraspinatus tendon but no tear seen and mil subacute adhesive capsulitis possibly and a CT guided steroid injection was suggested. But there was “no gross pathology seen”.
Medico-legal reports
Dr Wallace, orthopaedic surgeon wrote to Dr Tran on 24 November 2019 after the claimant was reviewed at a “Whiplash Clinic”. The claimant complained of a constant aching pain in the neck radiating to both shoulders and to the left arm and hand. She complained of numbness in her left hand and weakness in her left arm. In the lumbar spine she had pain radiating to the paravertebral regions but no radiation. He noted significant psychological trauma and recommended physiotherapy and a home exercise program and was not satisfied the claimant had sustained an actual injury to the shoulder.
On 18 February 2021, Drs Wijetunga and Antoun of the Medical Assist Network reported to the insurer ruled out a left wrist injury on the basis there was no record of it in the certificates of capacity and diagnoses a lower back muscle strain, cervical muscle strain and left shoulder soft tissue injury. The doctors conferred with Dr Virk and considered the claimant fit for full-time work.
The insurer relies on a report from Dr Machart, orthopaedic surgeon dated 5 March 2021.
Dr Machart records complaints of neck and lower back pain as well as shoulder pain traveling down to the left hand.
On examination of the neck, he found tenderness, but no guarding, dysmetria and no radicular symptoms or signs of radiculopathy. In the back he found guarding and loss of motion which was symmetrical. Shoulder motion was full but painful on the left side.
Dr Machart found the accident caused soft tissue injuries to the neck and lower back but no “intrinsic” injury to the left shoulder. He assessed WPI at 5% based on a DRE Category II impairment in the lower back.
On 9 April 2021, Drs Wijetunga and Antoun issued their final report and considered the claimant’s injuries minor and that she needed no further treatment and was fit to return to work. They said the claimant’s “claimed disabilities are inconsistent with the minimal clinical objective findings described.”
On 19 April 2021, Dr Antoun wrote a report to the insurer after consulting with Dr Chadban radiologist. Dr Chadban apparently expressed the view that the pathology viewed in the left shoulder imaging of 9 November 2019 may not have been acute due to the absence of oedema. Dr Antoun then found that the left shoulder findings were pre-existing.
Dr George, psychiatrist provided a report to QBE dated 25 February 2021. He diagnosed a chronic post-traumatic stress disorder with major depression and anxiety. In a subsequent report dated 6 May 2021 he had viewed the surveillance report and suggested neuropsychological testing be done. He provided a third report dated 13 January 2022 provided further commentary on additional material but without seeing the claimant.
On 2 September 2022 he undertook a second assessment of the claimant. The claimant had relocated to Queensland with her family due to the sudden death of her sister’s husband. According to Dr George the claimant had been to a doctor on only one occasion in Queensland and she had no psychological or psychiatric treatment. He diagnosed residual elements of post-traumatic stress disorder and a persistent depressive disorder. He considered she had a 3% WPI.
Dr McMahon clinical psychologist, in a report to the insurer dated 2 October 2021 diagnosed major depressive disorder with anxious and somatic symptom disorder.
Other assessments
Medical Assessor Kenna undertook an assessment of a minor (now threshold) injury dispute and a dispute about treatment. His certificate is dated 15 June 2021.
He found the listed injuries (cervical spine, thoracic spine, lumbar spine, left shoulder and right shoulder) all minor injuries.
Medical Assessor Kenna also found a consultation with Dr Malkan, neurologist related to the injuries sustained in the accident, but an ultrasound of the left wrist not related to the accident. He found physiotherapy treatment, scans of the neck, back and hips, chiropractic treatment and the consultation with Dr Malkan not reasonable and necessary.
Medical Assessor Kenna had a history of the immediate onset of neck and left shoulder pain and weakness in the left arm. She reported no symptoms of thoracic or lower back pain at that time. Her current complaints were of neck pain, left shoulder symptoms with pain down the left arm involving the thumb and index finger. She reported no thoracic pain, no right arm or shoulder problems and lower back pain involving the buttocks.
On examination of the neck there was no guarding, some stiffness but not dysmetria and no neurological deficit in either limb. In the thoracic spine there was no restriction of movement.
In the lumbar spine there was no guarding, symmetrically reduced range of motion and no neurological signs but that the symptoms in the fingers did not follow the distribution of a specific nerve root. Shoulder movement in flexion and abduction was reduced in both the left and the right.
As there was no radiculopathy in the upper or lower limbs and no evidence of any fracture or rupture of soft tissue, he found all physical injuries minor injuries.
On 8 March 2023, Medical Assessor Tamba-Lebbie determined a dispute about MRIs for the claimant’s left and right shoulders and found they did not relate to the injury caused by the accident and were not reasonable and necessary in the circumstances.
He has a history of neck pain, back pain and left shoulder pain. He documents the treatment including physiotherapy, hydrotherapy, injections into the shoulder and back and noted that MRIs of the neck and shoulders had already been done. He noted referrals had been given for psychological treatment, review by an orthopaedic surgeon and neurosurgeon.
Medical Assessor Tamba-Lebbie found no evidence of radiculopathy and some restriction of motion in both shoulders, the left more than the right. He considered the claimant’s complaints were of pain which were best managed by a pain specialist.
In a separate decision involving a request for an MRI of the cervical spine and left shoulder and consultation with Dr Soo, Medical Assessor Tamba-Lebbie appears to have allowed the left shoulder scan and consultation on the basis they are related to the second accident and injury.
RE-EXAMINATION FINDINGS
Report on medical examination
Medical Assessor David Gorman examined the claimant on behalf of the Panel on
22 May 2024 at the Commission’s medical suites in Darlinghurst.
Pre-accident medical history and relevant personal details
The claimant said she was currently 31 years old. At the time of her accident, she was a Correctional Officer in New South Wales, but she is not currently working.
She was in very good health and was very active before her injury. She is engaged to be married and has no children.
She is a non-smoker and has alcohol only socially.
In 2014 she had a motor vehicle accident where she fractured her ribs. She recovered and had no ongoing effects and was able to complete the academy course as a correctional officer in 2016.
In 2017 Ms Claassens says she injured her knee in a sporting accident (soccer). Her symptoms resolved after an arthroscopic meniscus repair and she returned to work with no further issues.
In September 2019 she was punched in the abdomen by an inmate. She was reviewed in hospital but did not have ongoing effects and it did not affect her work.
History of the motor accident
On 10 October 2019 Ms Claassen said she was driving on the M4 on her way to work when her car was hit by a truck. She was wearing her seat belt. She was traveling at 100kmph in the middle of three lanes. She could see a truck to her right and the truck veered off course into the back of her car and hit the rear right passenger side.
Her car was spun around so her car was perpendicular to the truck. The front of her car then came against the bumper of the truck and was pushed as far as it took the truck to stop. An ambulance was called, and police were called but when the police came and saw the situation, the ambulance was called off.
Ms Claassens was able to get out of her car and was able to go home.
History of symptoms and treatment following the motor accident
Ms Claassens returned to work the next shift and worked for about a month. She said she was on light duties and could not wear the heavy vest required as a member of the response team. She had shoulder and arm pain and neck pain gradually built up during this time and she became aware of back pain.
She saw her doctor and obtained referrals for scans for her neck and back pain. She was told that she had a whiplash injury of her cervical spine. She had an X-ray of the cervical spine on 28 October 2019 which showed mild spondylosis. She had ultrasound of the shoulder on 9 November 2019 showing a partial thickness articular surface tear in the supraspinatus with overlying subacromial bursitis.
MRIs of the cervical spine and lumbar spine on 11 November 2019 and 9 April 2020 respectively did not show any significant disc changes nor foraminal compromise.
She was sent to physiotherapy which she did for six to eight weeks then she did hydrotherapy. When COVID-19 came, all the pools were shut down which slowed her improvement.
She said she had dizziness and had shoulder pain and numbness at the base of her head (and top of her neck) from the time of the accident. She had to give up work on
11 November 2019. This was after she was told that the ultrasound showed a left torn rotator cuff. She has not returned to work since then.
She saw a pain specialist who organised injections in her left shoulder and her lower back and also put her on gabapentin for neuropathic symptoms. She reported that she had no relief from the shoulder or back injections.
With persisting left upper limb symptoms she had nerve conduction studies (on
18 May 2020) and an MRI of the brachial plexus on 21 May 2020 – both were normal showing no brachial plexus abnormality.
An MRI of the left shoulder on 5 May 2023 showed mild supraspinatus tendinopathy and suggested the diagnosis was mild adhesive capsulitis.
She had increasing anxiety and depression and saw a psychologist.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Claassens had a second accident where she was hit by another car with a trailer in
June 2020. Ms Claassens made a claim against NRMA, the CTP insurer of the at fault vehicle.
The claimant’s physiotherapist saw her after this and described it as “re-traumatising” her body and put her back to “square one”. The claimant says there was no specific further injury and the symptoms arising from the 2019 accident continued.
Current symptoms
Ms Claassens complains of daily neck pain.
She reports a numb feeling down the left arm to the hand and some shoulder tenderness and pain.
She has low back pain which she also feels in the right buttock.
She has migraines and vertigo. She can have nausea and vomit.
Her mental health has been not good. She said that at first, she had flash backs and nightmares. She could not sleep. She remains anxious and depressed. Her symptoms can be re-triggered by driving or even just talking about the accident. She has heightened anxiety when driving. She is constantly “on edge”.
Current and proposed treatment
Ms Claassens says she continues to see a psychologist and physiotherapist – she pays for these herself.
She takes intermittent Nurofen or Panadeine. On occasions she has a stronger anti-inflammatory.
CLINICAL EXAMINATION
General presentation
The claimant moved normally around the examination area but was somewhat “flat” in affect.
She weighed 95.3kg and was measured at 165cm tall.
Lumbar spine
Her lumbar spine had a full range of movement in the two planes. There was no guarding or muscle spasm.
Ms Claassens was able to stand with the knees fully extended and can put her palms on the floor. She said that she has always been “flexible”. She was able to walk on her heel and on her tip toes.
The claimant had good straight leg raising of 100 degrees on both the left and the right and there were no positive sciatic signs.
There was good strength in her knee extension, ankle dorsiflexion and plantar flexion on both sides.
She had normal sensation on testing of her lower limbs. The reflexes in her knees and ankles were normal and equal on both sides and there was no evidence of muscle atrophy in the lower limbs on either side.
Thoracic spine
Ms Claassens did not complain of thoracic or upper back pain. She had no tenderness or muscle spasm in her thoracic area. There was no dysmetria and no non-verifiable radicular symptoms around the chest.
Cervical spine
The claimant reported that her cervical spinal pain varies and that “today was a good day”. She gave no report of pain in the arm or hand. She had no evidence of spasm in her cervical area and there was no guarding.
Her range of cervical spine movement was normal in all three planes.
In the left arm, there was a subjective description of decreased sensation to both light touch and pin prick over the whole of the arm. This decreased sensation did not correlate to any one specific dermatome (C6, C7 or C8).
Motor power, strength and reflexes were normal in the upper limbs and arm measurements were equal 10cm below and above the elbows on both sides indicating no muscle atrophy. Testing did not identify nerve root involvement.
Upper extremities
Ms Claassens moved and used her left arm normally during the examination.
Fingers, thumb, wrist and elbow ranges of movement were all normal in the left arm and equal to the measurements of the right arm.
She indicated mild pain and tenderness over the left shoulder girdle generally but not in the arm or hand.
There was no wasting of any of the muscles around the shoulder.
With all six left shoulder movements, Ms Claassens reported sensations of tightness, tingling and numbness in the left arm. She had mild restriction in movement of only some movements on the left when compared with the right side.
The following are the active range of motion exercises measured three times with a goniometer:
Shoulder Movements
Normal
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
180
180
170
Extension
50
50
40
Adduction
50
50
40
Abduction
180
180
170
Internal Rotation
90
90
70
External Rotation
90
90
90
CONSIDERATION OF THE ISSUES
The Panel notes the claimant attended a GP the day after the accident reporting mild generalised headaches, but neck and back pain are not recorded (and in fact back pain was specifically denied).
The claimant next saw a GP (Dr Tran) on 16 October 2019 complaining of pain in the left scapula and upper arm but again no neck and no back pain.
By 26 October 2019, the claimant had developed and reported neck and upper back pain and on 30 October 2019 she was complaining of pain in the left shoulder radiating down the left arm.
Dr Tran records on 6 November 2019 the onset of headache and neck pain since the accident with shoulder pain and symptoms in the left arm and hand. He also has a record of lower back pain starting a week after the accident. The Panel notes the insurer submits there was a sneezing “incident” that may have led to a further injury. The medical members of the Panel note that in their clinical experience particularly violent sneezes or bouts of sneezing can aggravate or exacerbate neck symptoms.
After 6 November 2019, there are consistent reports of neck pain, lower back pain, shoulder pain, left arm and hand pain. The claimant has had treatment since November 2019 to her neck, lower back and left shoulder. Those parts of her body have been imaged and she has been referred to specialists. Left wrist pain was separately investigated in mid to late 2020.
The Panel notes the test of causation requires us to determine whether the mechanics of the accident could have caused the injuries alleged and did cause the injuries alleged.
The Panel notes the high-speed nature of the car accident (both the claimant and the other vehicle were travelling at 100kmph), the forces involved included a truck versus a car and the car spinning and being shunted to a stop.
It is the clinical judgment of the medical members of the Panel that the claimant could have sustained injuries to her spine and shoulder in this accident.
Based on the contemporaneous documents referred to above, the Panel is satisfied that the claimant did sustain the following injuries in the motor accident of 10 October 2019:
(a) cervical spine soft tissue injury;
(b) thoracic spine soft tissue injury;
(c) lumbar spine soft tissue injury, and
(d) left shoulder soft tissue injury.
The Panel is not satisfied that the claimant sustained a frank or specific injury to her left arm or hand. There was no contemporaneous report of bruising or contusions on the claimant’s hand and arm after the accident. If the claimant did injure her hand and arm in the accident the Panel would expect a more contemporaneous record of complaints. The Panel also notes that the symptoms in the left arm and hand are referred to in the GP notes and in the physiotherapist records as coming from the shoulder or neck area.
The Panel notes the claimant did not on the day after the accident complain to her doctor of neck, shoulder and back pain and that back pain does not appear to have emerged until a week after the accident. This is explicable. The Medical Assessors note the claimant was in shock after the accident and developed psychological symptoms soon after the accident and that may be part of the explanation. The claimant also explained to Medical Assessor Gorman that her symptoms “gradually developed”. The medical members of the Panel consider it medically plausible that symptoms did not become obvious for a few days to a week after the accident.
The Panel notes the June 2020 accident and that all of the records contemporaneous to that accident suggest it was minor (20kmph per hour compared to 100kmph) and that the claimant sustained a temporary aggravation of her symptoms but no further injury.
IMPAIRMENT ASSESSMENT
Permanent impairment is defined in the AMA 4 Guides as follows:[10]
“… impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment … [and] unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
[10] Page 315.
It is now over four and a half years since Ms Claassen’s accident. She is not having any specific treatment, and none is indicated. Her injuries are well settled, and her impairment is unlikely to change by more than 3% in the next 12 months.
Spinal impairment
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions, the cervical, thoracic and lumbar regions. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
For each region there are five diagnostic related categories and a number of indicia provided (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim, noting the allegations of radicular symptoms and signs of radiculopathy, the following DREs are relevant.
A DRE category II category impairment 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 of the Guidelines as:
(i)symptoms (shooting pain, burning sensation, tingling),
(ii)which follow the distribution of a specific nerve root but where there is no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A finding of DRE category III requires there to be radiculopathy 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 …
(a) loss or asymmetry of reflexes …
(b) positive sciatic nerve root tension signs …
(c) muscle atrophy and/or decreased limb circumference …
(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.”
Cervical spine
The Panel has earlier diagnosed a soft tissue injury. The claimant says she has daily neck pain. Due to the presence of pain, the Panel is satisfied Ms Claassens has at least a DRE category I impairment.
Two or more of the five signs of radiculopathy were not present on examination by Medical Assessor Gorman. All reflexes were present and equal there was no muscle atrophy or weakness and no anatomically localised sensory loss reproducible on testing. Testing also did not reveal any positive nerve root tension signs. The claimant does not satisfy the requirements for a DRE category III impairment.
The Panel notes the requirement of a DRE category II impairment. When examined by Medical Assessor Gorman, there was no dysmetria and no muscle guarding. The Panel then considered whether the claimant had non-verifiable radicular complaints, that is symptoms (such as tingling, burning or shooting pain) which follows a specific nerve root pattern but where there are no objective signs. The sensory changes in Ms Claassens upper limb were global over the whole of the arm and did not follow a dermatomal pattern but they were reproduced on pin-prick and light touch testing.
As the sensory symptoms and signs in the claimant’s left upper limb (arm and hand) cover a number of dermatomes (C6, C7 and C8) this raised the possibility of nerve root irritation at all three levels. The Panel notes there is no radiological evidence suggesting nerve root involvement at any of the levels innervating the left arm and nerve conduction studies confirm no neurological abnormality. However, the Medical Assessors note that the symptoms have been reported as present since soon after the accident and they have been consistently reported for over four and a half years.
The Medical Assessors are of the view that while there is doubt that the arm and hand symptoms can be categorised as non-verifiable radicular symptoms, the Medical Assessors consider that the claimant should be categorised as having a DRE category II impairment (5%) due to the longevity of the symptoms and because they were reproducible on testing.
Thoracic spine
When examined by Medical Assessor Gorman the claimant did not complain of pain, there was no tenderness or guarding, no dysmetria and no referred symptoms.
Any thoracic spine injury the claimant may have had in the accident has resolved leaving no assessable impairment.
Lumbar spine
When examined by Medical Assessor Gorman, there were complaints of pain but there was no spasm, no guarding and no dysmetria. The referral of pain into the buttocks was generalised and vague and did not correspond to an appropriate dermatome and is therefore not a non-verifiable radicular symptom.
None of the five signs of radiculopathy were present.
Due to the presence of lumbar spine pain, the claimant is assessed as having a DRE category I impairment giving 0% WPI.
Left upper extremity
If any impairment to the claimant’s shoulders, arms or hands results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor, that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[11] The Panel notes there has been no clear diagnosis from any of those who have treated the claimant as to the cause of the left shoulder symptoms but symptoms have been consistently reported in the shoulder causing impairment.
[11] [2011] NSWSC 351. This is referred to as the “Nguyen Principle”.
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. 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.
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).
In Ms Claassens case, the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion method requires the measurement of three functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
In Ms Claassens case, the measurements obtained and recorded above translate to the following impairments:
Shoulder Movements
Normal
Active ROM Measured
LEFT
Percentage UEI
Flexion
180
170
1
Extension
50
40
1
Adduction
50
40
0
Abduction
180
170
0
Internal Rotation
90
70
1
External Rotation
90
90
0
The total of the above impairments is 3% UEI which equates to 2% WPI using Table 3, page 20 of AMA4. While it is unclear
When examined by Medical Assessor Gorman, the left arm and hand were entirely normal in terms of range of motion and there is therefore no assessable impairment in those parts of Ms Claassens’ body.
The Panel also notes that pain (in the shoulder, arm and hand) is not to be assessed separately as per cl 6.38 of the Guidelines.
CONCLUSION
The total WPI is therefore assessed at 7% made up of the following:
(a) cervical spine DRE category II – 5%;
(b) thoracic spine no assessable impairment;
(c) lumbar spine DRE category I – 0%;
(d) left shoulder 2%, and
(e) left arm and hand no assessable impairment.
The Panel has found the claimant has a WPI of 7%. As Medical Assessor Tamba-Lebbie included his finding of 6% in the certificate, the Panel cannot confirm his certificate and must revoke it even though the ultimate outcome is the same.
0
2
0