Conner v Allianz Australia Insurance Limited

[2023] NSWPICMP 56

DETERMINATION OF REVIEW PANEL

CITATION:

Conner v Allianz Australia Insurance Limited [2023] NSWPICMP 56

CLAIMANT:

Roxanne Conner

INSURER:

Allianz Australia Insurance Limited

REVIEW Panel

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

30 January 2023

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 21 July 2017; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were neck, left shoulder, right elbow (fracture of proximal radius and ulnar nerve entrapment), right wrist (right trapezoid fracture); right index finger, right middle finger, left knee and scarring; dispute as to causation of injury to neck, left shoulder and left knee; question of whether left shoulder injury was caused by overuse; Held – soft tissue injury to cervical spine caused by accident; soft tissue injury to left knee caused by accident but recovered shortly after accident; soft tissue injury and superior labral anterior posterior (SLAP) tear to left shoulder caused by inability to use right arm or tendency to favour right arm due to injury to right wrist and fingers; cervical spine assessed as diagnosis related estimate (DRE) cervicothoracic category I or 0% whole person impairment (WPI); injury to the left shoulder assessed at 2% WPI; combined right upper extremity (right wrist and right index finger) assessed at 4% WPI;  scarring assessed using TEMSKI scale at 2% WPI; Panel finds total WPI of 8%.

DETERMINATIONS MADE:  

Review Panel Certificate
issued under Part 3.4 of the Motor Accident Compensation Act 1999
following a review under s 63 as to
WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The Panel revokes the Certificate of Medical Assessor Home dated 13 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a whole person impairment (WPI) which is greater than 10%:

·        cervical spine – soft tissue injury;

·        right elbow – fracture of the proximal radius and ulnar neuropathy;

·        right wrist – trapezoid fracture;

·        left shoulder – soft tissue injury;

·        right index finger – laceration and soft tissue injury;

·        right middle finger – soft tissue injury;

·        left knee -soft tissue injury – resolved, and

·        scarring to the right elbow and wrist

REVIEW PANEL REASONS FOR DECISION

BACKGROUND

1. On 21 July 2017 on Bay Street, Brighton-Le-Sands Ms Roxanne Conner (the claimant) was driving along the Great Western Highway, Katoomba when a car travelling in the opposite direction crossed the median strip and collided with her vehicle head on (the accident). Ms Conner was wearing a seat belt and the airbags deployed. Ms Conner had to be assisted out of her vehicle and was transported to Nepean Hospital by ambulance.

2. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).

3. This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

MEDICAL ASSESSMENT UNDER REVIEW

[1] Sections 57 and 58 of the MAC Act.

Certificate of Medical Assessor Home

1. Medical Assessor Alan Home issued a certificate dated 13 July 2022. It is this assessment which is the subject of the current review application which was filed by the claimant pursuant to s 63 of the MAC Act.

2. The injuries referred for further assessment were as follows:

   ·        cervical spine – strain/soft tissue injury;

   ·        left shoulder – strain/soft tissue injury, referred from the neck;

   ·        right elbow– strain (ulnar neuropathy), soft tissue injury;

   ·        right wrist – fracture (strain); soft tissue injury;

   ·        right index finger – strain/soft tissue injury;

   ·        right mid finger – strain/soft tissue injury;

   ·        left knee – strain/soft tissue injury;

   ·        right elbow – scarring, and

   ·        left elbow – scarring.

3. Medical Assessor Home found the following injuries were caused by the accident:

1.     Cervical spine	2.     Soft tissue injury
Left shoulder	Secondary complaints – overuse of the left arm during recovery from multiple operations to the right wrist and elbow.
Right elbow	Fracture of the proximal radius – resolved. Ulnar neuropathy surgically managed – resolved.
Right wrist	Trapezoid fracture; subsequent arthroscopic debridement on two occasions. Mild stiffness.
Right index finger	Laceration – soft tissue injury/laceration; mild restriction of motion.
Right middle finger	Soft tissue injury/strain.
Left knee	Contusion – resolved.
Right elbow and Right wrist	Scarring – the scarring is considered as a whole.

1. Medical Assessor Home assessed a 0% whole person impairment (WPI) in respect of injury to the cervicothoracic (cervical) spine.

2. Medical Assessor Home assessed impairment of the left shoulder arriving at a 3% upper extremity impairment (UEI) rating which converts to a 2% WPI.

3. Medical Assessor Home assessed a 2% UEI rating of the right wrist, a 1% UEI for the right index finger, and noting the right middle finger was normal in range he found a combined upper extremity rating of 3% which using Table 3, American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) page 21 converted to a 2% WPI.

4. Medical Assessor Home used the Table for the evaluation of minor skin impairment (TEMSKI) scale to assess a 1% WPI for scaring. The scars include the following:

   ·        a medial 7cm scar extending above and below the medical epicondyle;

   ·        a healed 3cm scar overlaying the radiodorsal aspect of the proximal right forearm;

   ·        a white horizontal scar 2.5cm in length and 1mm in diameter, and

   ·        a vertical scar 1.2cm in length and 3mm in diameter.

5. Medical Assessor Home assessed a total 5% WPI caused by the accident.

REVIEW PROCEDURE

1. The claimant filed an application for review of the medical assessment of Medical Assessor Home.

2. On 13 September 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]

   [2] Section 63(2B) of the MAC Act.

3. The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).

4. Under cl 14A(1)(a)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.

5. Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.

6. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate referred this application for review to the Panel.

7. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[3]

   [3] Clause 1.2 of the Guidelines.

8. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]

   [4] Section 41(2) of the PIC Act.

9. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]

   [5] Rule 128 of the PIC Rules.

10. The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]

    [6] Section 63(3A) of the MAC Act.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel issued a Direction to the parties on 14 October 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents.

2. In response to this direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 430 and labelled AD1. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 310 and labelled AD2.

Personal injury claim form

1. The personal injury claim form dated 4 October 2017 list the injuries from the accident as soft tissue facial injuries; soft tissue neck injury, soft tissue injury to the chest and abdomen, fractures and soft tissue injuries to the right wrist, arm, hand and fingers, soft issue injury to the right hip and leg, soft tissue injury to the left knee and left leg and psychological injury.[7]

Treating medical records

[7] AD1 p 29.

Clinical records of Westpoint Medical Practice

1. These records relate to treatment between 6 March 2013 and 27 April 2021. On 12 May 2012 Ms Conner complained of right arm pain, elbow pain and wrist pain following an assault.[8] Dr Yin referred Ms Conner for an X-ray of her bilateral humerus, right elbow, forearm, wrist and hand.

   [8] AD2 p 295.

2. On 24 April 2012 Ms Conner presented to Lithgow District Hospital complaining of stabbing pain in the upper back after picking up an empty bin.[9]

   [9] AD2 p 298.

NSW Ambulance Service

1. The ambulance report noted pain and a fracture of the right hand, right sided abdominal pain, seat belt bruise right side of umbilicus, bruising to the right hand, lacerations and bleeding to index and middle fingers of right hand.[10] Pain was also reported during transport to the right elbow, right upper arm, right hip, and neck.

   [10] AD1 p 67.

Nepean Hospital

1. Following the accident on 21 July 2017 Ms Conner was transported by ambulance to Nepean Hospital and discharged the following day.[11] She was complaining mainly of pain in the right elbow/hand.

   [11]AD1 p 298.

2. Complaints of right sided chest pain, lower abdominal pain, right sided hip pain, pain in the right elbow, wrist and right hand were recorded. It was noted there was a small laceration near the 3^rd PIP (proximal interphalangeal) joint. There was normal range of movement and the small/undisplaced proximal radius fracture was noted. There was a superficial laceration to the hand. Having regard to scaphoid tenderness a back slab was applied. Tenderness to palpation to the right elbow region, tenderness to the right wrist and joint swelling and tenderness on palpation to the 2^nd and 3^rd MCP (metacarpophalangeal) joint was noted.

Clinical notes of Lithgow Medical Clinic[12]

[12] AD2 p 39.

1. Ms Conner first attended this practice on 30 August 2011.

2. On 8 June 2017 Ms Conner saw Dr Biswas, general practitioner (GP). Whilst no history of complaint was recorded Ms Conner was referred for an ultrasound of the right wrist.

3. On 11 July 2017 Dr Reyes diagnosed a possible ectopic pregnancy. Ms Conner subsequently underwent a right salpingectomy on 13 July 2017.

4. Following the accident on 21 July 2017, Ms Conner saw Dr Soliman, GP on 24 July 2017.[13] Dr Soliman reported the following injuries:

   ·        fracture of the right proximal radius;

   ·        laceration of the right index finger;

   ·        bruising/soft tissue injury to the abdomen;

   ·        bruising/soft tissue injury to the right side of the chest;

   ·        back pain, and

   ·        neck pain.

   [13] AD1 p 80.

5. Thereafter complaints were largely limited to the right wrist and elbow until 6 November 2019 when Dr Ahmed GP recorded:

   “Having neck pain, R arm, shoulder pain for 2 weeks

   Neck stiffness has always been present since the accident

   Still getting pain in the R elbow

   Also gets tingling and numbness of the L wrist and hand.”[14]

Whilst no specific complaint was made in respect of the left shoulder it is noted that Dr Ahmed referred Ms Conner for an ultrasound of the left shoulder, left elbow and left wrist.

[14] AD2 p 44.

1. On 23 November 2019 Dr Ahmed reported degenerative changes in the cervical spine, bursitis in the right shoulder, lateral epicondylitis of the left elbow, “most likely from overcompensation”. On 7 January 2020 Dr Ahmed reported pain in the elbows and left shoulder was not improving and on 11 February 2020 he reported the pain in the left elbow was getting worse.

2. On 8 September 2020 Dr Ahmed reported Ms Conner had difficulty working four hours per week as her left shoulder gets very sore.[15] On 3 November 2020 Dr Ahmed reported Ms Conner was having physio once a month and was working 30 hours a week. On 16 June 2021 Dr Alivio GP reported Ms Conner had undergone right shoulder surgery on 3 June 2021. On 20 October 2021 Dr Liang GP reported Ms Conner was complaining of pain and restricted movement of the left shoulder.[16]

   [15] AD1 p 410.

   [16] AD1 p 407.

Clinical notes of Bowenfels Medical Practice

1. Clinical notes detail attendances from 2009 until 19 August 2020, although it seems Ms Conner did not consult this practice in respect of injury sustained in the accident.

2. On 23 February 2016 Dr Yin GP referred Ms Conner for an ultrasound of the right shoulder noting a painful rotator cuff. On 22 March 2016 Dr Yin referred Ms Conner to Carol-Anne Stevens, physiotherapist in respect of right shoulder pain.

Dr Michael Dowd, hand surgeon

1. On 16 August 2017 Dr Dowd reported Ms Conner had sustained an undisplaced fracture of the right trapezoid which was quite tender.[17] He recommended she wear a splint and undertake finger and wrist exercises.

   [17] AD1 p 91.

2. On 12 October 2017 Ms Conner underwent surgery, namely excision of debris and organised scar dorsal aspect of right index finger and also extensor tenolysis under the care of Dr Dowd.[18]

   [18] AD1 pp 139 and 145.

3. On 26 June 2018 Dr Dowd reported Ms Conner’s trapezoid was relatively painless some days but hurts on others. He recommended a LIPUS (low intensity pulsed ultrasound) machine to aid bony union. [19]

   [19] AD2 p 104.

Dr Kwan Yeoh, hand, wrist and upper limb surgeon

1. On 3 August 2018 Ms Conner saw Dr Yeoh for a second opinion regarding her right wrist.[20] He noted whilst Ms Conner had full range of motion in the right wrist, she was exquisitely tender over the dorsal 2^nd CMC (carpometacarpal) joint and trapezoid. He also noted moderate tenderness over the scapholunate gap. Dr Yeoh concluded Ms Conner had ongoing right dorsal wrist pain coming from her 2^nd CMC joint and dorsal capital of the joint and probably some pain coming from the dorsal scapholunate ligament.

   [20] AD1 p 255.

2. On 8 August 2018 and again on 12 October 2018 Ms Conner had an ultrasound guided right wrist injection.[21]

   [21] AD1 pp 253 and 249.

3. Dr Yeoh saw Ms Conner on 19 October 2018, 5 December 2018 and 19 December 2019 in respect of right wrist pain.[22]

   [22] AD1 pp 243 and 244.

4. An operation report of 14 February 2019 detailed surgery under the care of Dr Yeoh, namely right wrist arthroscopic debridement and open debridement and excision of bony fragments of the second and third CMC joints.[23]

   [23] AD1 pp 235 and 241.

5. On 26 March 2019 Dr Yeoh noted Ms Conner was six weeks post right wrist arthroscopic debridement and open debridement of the 2^nd and 3^rd CMC joint.[24] He concluded Ms Conner’s ongoing pain was coming from the scapholunate ligament and from the 2^nd CMC joint. He stated she had a dorsal sprain with capsulitis around the dorsal scapholunate ligament and a small ganglion in that area. He noted a small 2^nd CMC joint carpal boss with bony fragments from the previous trapezoid fracture. He also noted a marked 3^rd CMC joint carpal boss.

   [24] AD1 p 232.

6. Dr Yeoh assessed Ms Conner on 3 February 2020 in respect of her right elbow, left elbow and left shoulder.[25] He was of the view most of the right elbow pain was coming from the radial tunnel. He also reported the left elbow and left shoulder started hurting about six months earlier. He noted there was no specific trauma but that it sounded as if she was using her left upper limb a lot more due to problems with her right upper limb from the accident.

   [25] AD1 pp 226 and 270.

7. On 20 February 2020 Ms Conner had a cortisone injection into both right and left radial tunnels.[26]

   [26] AD1 p 215.

8. On 25 February 2020 Ms Conner had a CT guided left shoulder injection.[27]

   [27] AD1 p 217.

9. On 6 March 2020 Dr Yeoh reported Ms Conner had bilateral elbow pains which he believed was from a combination of lateral epicondylitis and radial tunnel syndrome. He also reported left shoulder pain which he thought was likely to come from a SLAP tear. He referred her to Dr David Abraham sports physician to manage the elbows.

10. On 24 March 2020 Ms Conner had a left shoulder glenohumeral injection for a SLAP tear.[28]

    [28] AD1 p 213.

11. On 27 April 2020 Dr Yeoh reported continued pain over the superolateral area of the left shoulder radiating up to the neck and down the back of the arm which he considered consistent with a possible SLAP tear of the shoulder.[29]

    [29] AD2 p 72.

12. On 3 June 2020 Dr Yeoh reported Ms Conner had ongoing left shoulder and elbow pain from a labral tear and radial tunnel syndrome. He noted following a left humeral joint injection her pain went away for two weeks but returned worse than it was prior to the injection. He also reported a left radial tunnel injection only relieved her pain for several days.[30]

    [30] AD1 p 208.

13. On 29 June 2020 Ms Conner underwent a left radial tunnel release under the care of Dr Yeoh[31].

    [31] AD1 p 204.

14. On 14 July 2020 Dr Yeoh reported Ms Conner was two weeks post left radial tunnel release. He noted ongoing right wrist pain from probable dorsal wrist capsulitis. He also noted ongoing left shoulder pain from the SLAP tear.

15. On 25 September 2020 Dr Yeoh noted investigations were on hold due to Ms Conner’s pregnancy. He reported the left radial pain had completely resolved and the main problem was the left shoulder.

16. On 7 April 2021 Dr Yeoh noted ongoing left shoulder pain and on 18 May 2021 Dr Yeoh diagnosed a left shoulder SLAP tear and right wrist dorsal ganglion.[32]

    [32] AD1 pp 195 and 198.

17. On 3 June 2021 Ms Conner underwent a left shoulder arthroscopy SLAP repair, biceps tenotomy and subacromial decompression under the care of Dr Yeoh.[33]

    [33] AD1 pp 190 and 193.

18. On 28 July 2021 Ms Conner was eight weeks post left shoulder SLAP repair and biceps tenotomy.[34] He noted continued marked stiffness in the shoulder and expressed concern she was developing an early adhesive capsulitis.

    [34] AD1 p 188.

19. On 8 October 2021 Dr Yeoh reported Ms Conner had improving stiffness but ongoing pain, four months post left shoulder SLAP tear repair.[35] He noted ongoing pain from the right dorsal wrist ganglion.

    [35] AD1 p 186.

20. On 28 February 2022 Dr Yeoh reported the claimant was doing well nine months post left shoulder surgery but noted ongoing right wrist pain from a ganglion.[36] He reported range of motion of the left shoulder was also equivalent to the right shoulder. He recommended open excision of the right dorsal wrist ganglion with debridement of the underlying scapholunate ligament.

    [36] AD1 p 181.

Dr Lachlan Host, orthopaedic surgeon

1. On 15 August 2018 Dr Host reported the cortisone injection into the elbow failed to give significant relief. He diagnosed tunnel syndrome and recommended surgery.[37]

   [37] AD2 p 97.

2. In September 2018 Ms Conner underwent right cubital tunnel release and anterior ulnar nerve transposition surgery.

3. On 17 October 2018 Dr Host reported Ms Conner was recovering well from the cubital tunnel syndrome.[38] He reported scans showed no significant medial or lateral epicondylitis nor significant elbow arthritis and he was unable to explain the discomfort in the lateral elbow.

   [38] AD2 p 93.

4. Ms Conner saw Dr Host again in respect of ongoing pain in the right elbow on 2 August 2019.[39] He reported she had done well from the cubital tunnel release with mild paraesthesia around the wound but no distal ulna nerve symptoms.

   [39] AD2 p 80.

5. On 27 August 2019 Dr Host reported the MRI of Ms Conner’s right elbow showed no significant pathology.[40] He found her pain unexplained but suggested it was lateral epicondylitis with possible tethering of the tendons due to the wrist injury. He recommended ongoing physiotherapy.

   [40] AD2 p 16.

Dr David Abraham, sport and exercise physician

1. Ms Conner consulted Dr Abraham in respect of the bilateral elbow pain on 16 March 2020. He reported she suffered wrist and forearm injuries which required surgery in the accident.[41] He also noted right elbow pain resulting in an ulnar nerve release. He noted Ms Conner had ongoing lateral elbow pain worse with lifting and gripping and six to eight months earlier she developed lateral and posterior left elbow pain radiating down her forearm with occasional tingling in her index and middle fingers or ring and little fingers.

   [41] AD2 p 75.

2. Dr Abraham was of the impression Ms Conner had bilateral posterior interosseous nerve syndrome more than left lateral epicondylosis and may also have mild right radiocapitellar joint synovitis as well.

3. In a report dated 20 April 2020 he reported Ms Conner continued to have pain from her left posterior interosseous nerve syndrome.[42]

   [42] AD2 p 73.

Gwen Graf, physiotherapist

1. Ms Conner underwent treatment with Ms Graf in relation to her right elbow and wrist until 30 October 2019.

2. She returned for further treatment on 5 March 2020 when she recorded complaints pertaining to both the left and right shoulder region.[43]

   [43] AD2 p 183.

3. On 5 October 2021 Ms Graf reported she was continuing to work on Ms Conner’s range of motion of her left shoulder, cervical and thoracic spine.[44]

   [44] AD1 p 424.

Radiological investigations

1. X-ray of the right humerus, elbow, forearm, wrist and hand and of the left humerus on 12 May 2012 – showed no evidence of recent fracture although an old clavicular fracture was noted.[45]

   [45] AD2 p 275.

2. Right shoulder ultrasound on 23 February 2016 – reported an insertional ear of the right subscapularis tendon, insertional tendinosis of the right supraspinatus tendon and no bursitis.[46]

   [46] AD2 p 276.

3. MRI of the brain on 31 October 2016 – history of episodes of vertigo and vomiting. No cause for symptoms was identified and no intracranial pathology seen.[47]

   [47] AD1 p 132.

4. Ultrasound of the right wrist on 15 June 2017– was in respect of a painful lump on the radial side.[48] No abnormality was detected.

   [48] AD1 p 90.

5. CT scanogram of her chest, abdomen and pelvis on 21 July 2017 – showed no evidence of a traumatic injury to the thorax or abdomen.[49]

   [49] AD1 p 121.

6. X-ray of the right hand, wrist and forearm on 21 July 2017 – showed no fracture or dislocation of the right forearm, hand and wrist.[50]

   [50] AD1 p 280.

7. CT scan of the brain on 21 July 2017 – showed no acute intracranial haemorrhage nor space occupying lesion and no fracture of the skull bones.

8. CT scan of the cervical spine on 21 July 2017 – no acute traumatic injury to the brain was identified. No recent fracture of the cervical spine was identified although it was noted ligamentous injury could not be excluded.[51]

   [51] AD1 p 117.

9. CT scan of the right wrist on 25 July 2017 – showed tiny nondisplaced cortical avulsion fractures along the dorsal aspect of the trapezoid bone adjacent to the 2nd CMC joint. The carpal alignment was normal. There was an interosseous ganglion within the lunate bone.[52]

   [52] AD1 p 128.

10. CT scan of the right wrist on 1 September 2017 – showed a 2mm cortical fracture of the dorsal aspect of the trapezoid with slight increase in displacement of the fracture fragment since the previous CT. There was no significant callus formation. There was a 5mm low density bony lesion at the lunate bone with thin sclerotic margin, stable when compared to previous CT.[53]

    [53] AD1 p 125.

11. X-ray of the right elbow on 19 September 2017 – showed no effusion, no fracture and articular contour was normal.[54]

    [54] AD1 p 137.

12. Ultrasound of the right hand on 25 September 2017 – showed thickening of the soft tissues with small radiolucent bodies.[55]

    [55] AD1 p 275.

13. X-ray of the right finger on 25 September 2017 – showed soft tissue swelling but no fracture.

14. Right lateral elbow ultrasound on 10 October 2017 – showed a partial tear of the deep fibres of the right common extensor tendon.[56]

    [56] AD1 p 274.

15. CT scan of the right wrist on 29 December 2017 – showed two tiny bony fragments present over the dorsal aspect of the wrist adjacent to the trapezoid bone.[57]

    [57] AD1 p 175.

16. MRI of the right elbow on 16 January 2018 – showed minor tendinosis at the common extensor tendon origin. There was a normal appearing common flexor tendon origin.[58]

    [58] AD1 p 176.

17. CT of the right hand on 21 March 2018 – showed two small separate ossifications related to the dorsal aspect of the trapezoid, consistent with un-united old fracture fragments.[59]

    [59] AD1 p 258.

18. MRI of the right wrist on 27 July 2018 – showed no bone marrow oedema within the trapezoid. Ganglia were described in the scapholunate ligament and an interosseous ganglion was described in the lunate. The median and ulnar nerves were normal and there were no ligamentous tears.[60]

    [60] AD2 p 99.

19. MRI of the right elbow on 4 October 2018 – showed post-surgical change following her ulnar nerve transposition without complication at the medial and epicondyle.[61]

    [61] AD1 p 240.

20. MRI of the right elbow on 14 August 2019 – showed no significant internal derangement.[62]

    [62] AD2 p 38.

21. Ultrasound of the left shoulder, elbow and wrist on 22 November 2019 – showed an intact rotator cuff and evidence of subacromial bursitis with impingement. The elbow ultrasound showed tendinosis of the common extensor. The left wrist ultrasound showed no median nerve compression and the dorsal and volar tendons appeared intact.[63]

    [63] AD1 p 177.

22. CT of the cervical spine on 22 November 2019 – showed minor degenerative change of the C4/5 and C5/6 discs with no evidence of nerve root compromise.[64]

    [64] AD2 p 17.

23. MRI and X-ray of the left elbow on 17 February 2020 – showed a low grade partial tear of the common extensor tendon origin.[65]

    [65] AD1 p 218.

24. Interventional ultrasound on 20 February 2020 – showed a cortisone injection to both right and left radial tunnels with greater perineural sensory effect on the right hand side.

25. CT guided cortisone injection into the left glenohumeral joint on 26 February 2020.

26. MRI of the left shoulder on 26 February 2020 – showed no AC arthropathy or subacromial spur but there was subacromial fluid. There was no gross rotator cuff tear. There was mild spurring in the subchondral oedema at the posterior margin at the glenoid. There was a higher signal at the chondro labral junction without para labral cyst suspicious for a posterior cleft.

27. Ms Conner underwent a left posterior interosseous nerve perineural steroid injection on 15 May 2020.[66]

Medico-legal reports

[66] AD2 p 71.

Report of Dr Anthony Smith dated 28 August 2019

1. Dr Smith assessed the claimant on 28 August 2019.[67] Dr Smith reported continuing discomfort and restriction of movement in the right wrist and discomfort about the right elbow.

   [67] AD2 p 26.

2. Dr Smith concluded Ms Conner had sustained a number of soft tissue injuries, in particular an aggravation to her pre-existing distal carpal osteoarthritis on the right. Dr Smith assessed a 0% WPI.

Report of Dr Smith dated 16 December 2020

1. Dr Smith reviewed the claimant and provided a report dated16 December 2020.[68] He also provided a supplementary report dated 11 February 2021. He reported Ms Conner had weakness in both arms, the right arm more than the left although the left shoulder is more severely affected than the right shoulder. Dr Smith reported she has been able to return to boxing training and childcare work.

   [68] AD2 p 280.

2. Dr Smith concluded Ms Conner had sustained an aggravation to pre-existing asymptomatic arthritic change in the second and third CMC joints. He noted she underwent an ultrasound examination of the right wrist one month before the accident because of pain in the right hand and wrist. Dr Smith stated for the arthritic change to be diagnosable clinically and radiologically in the metacarpal bases of the send and third digits it must have predated the accident by at least two to three years.

3. He reported there was no injury to the ulnar nerve or any other nerve around either elbow or wrist seen in the ultrasounds and MRI’s of the elbows and wrist.

4. Dr Smith found Ms Conner was embellishing her condition. On examination he found she demonstrated weakness in all movements of both upper limbs, more on the right than the left. However, on the basis there was no reason for her to have weakness in neck and shoulder movements consequent to an injury to the elbows, forearms and hands he found Ms Conner was manufacturing that weakness.

5. Dr Smith confirmed the injuries caused by the accident were soft tissue injury to the right chest, the lower abdomen, the right hip, the right elbow, right wrist and laceration of the right wrist, index finger and ring fingers. Dr Smith stated he did not agree with the theory that the posterior interosseous nerve which runs through the radial tunnel is a source of symptoms not unlike tennis elbow. He also stated he did not consider there was any indication to operate on the left shoulder.

Report of Dr Andrew Keller dated 29 August 2019

1. Dr Keller, occupational physician assessed the claimant on 21 August 2019.[69] Dr Keller reported intermittent right wrist pain and a constant ache around the right lateral epicondyle.

   [69] AD2 p 18

2. On examination he reported dorsal scarring of the right wrist, minimal scarring on the right index finger and a healed scar on the medial side of the right elbow. He noted a full range of motion in both shoulders and elbows and mild tenderness at the lateral epicondyle on the right. He also noted a full symmetrical range of motion in the cervical spine and lumbar spine and no abnormalities in the lower limbs.

3. Dr Keller diagnosed the following injuries caused by the accident:

   ·        right trapezoid avulsion fractures;

   ·        right index finger laceration and foreign body;

   ·        right ulnar nerve entrapment at the level of the elbow requiring surgical release, and

   ·        soft tissue injuries affecting the chest, abdomen, face, lips and left hip – resolved.

Report of Dr Drew Dixon dated 18 March 2020

1. Dr Dixon, orthopaedic surgeon assessed the claimant on 4 March 2020.[70]

   [70] AD1 p 54

2. He provided the following opinion as to diagnosis causally related to the accident:

   ·        facial injury which had settled;

   ·        whiplash injury to her neck with post traumatic stiffness with dysmetria, left sided facet arthralgia and shoulder brachalgia with trapezial muscle pain with radicular complaint with left frontal headaches;

   ·        injury to the left shoulder while favouring her right arm with post traumatic stiffness, trapezial muscle and deltoid pain with some impingement on shoulder elevation;

   ·        bilateral tennis elbow with persisting lateral epicondylitis despite cortisone injections;

   ·        grade 4 out of 5 ulnar neuritis at the right elbow;

   ·        tenderness of the ulnar transposition surgical scar which shows colour contrast and is very tender if touched and a tender scar over the trapezial bossing at the dorsum of her left wrist and while reasonably healed, is painful if bumped;

   ·        post traumatic stiffness of the right wrist;

   ·        post traumatic stiffness of the right index and middle fingers, and

   ·        post traumatic retropatellar crepitus of the left knee.

3. Dr Dixon assessed a 25% WPI.

RELEVANT LEGAL AUTHORITY

1. Causation of injury is addressed in the Guidelines:

   “1.5          An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 claims assessor) in considering such issues.

   1.6 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 non-medical informed judgement.

   1.7            There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. In Norrington v QBE Insurance (Australia) Ltd[71] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

   [71] [2021] NSWSC 548, Norrington.

3. In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[72] where the Court stated at [64]:

   “The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”

   [72] [2016] NSWCA 229, McGiffen.

4. Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[73] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.

SUBMISSIONS

[73] [2021] NSWSC 804, Kinchela.

Claimant’s submissions

1. The claimant provided submissions in support of the application for review. The submissions largely address the certificate of Medical Assessor Home and disputes his findings as to causation of the injury to the left wrist and his assessments of WPI pertaining to the cervical spine, right upper extremity including the right wrist and arm and scarring.

Insurer’s submissions

1. The insurer provided submissions dated 14 August 2020.[74]

   [74] AD2 p 1.

Cervical spine

1. The insurer disputes the claimant sustained any, or any significant injury to the cervical spine. If injury was sustained the insurer submits the injury resolved within weeks having regard to the following:

   ·        examination at Nepean Hospital was normal, and a precautionary CT scan did not reveal any significant abnormalities;

   ·        Dr Soliman noted some neck pain at consultation on 24 July 2017, however following this there were no further reports of neck pain either to Dr Soliman, her specialists or the insurer’s medico-legal doctors;

   ·        Dr Soliman did not mention injury to the cervical spine in the Medical Certificate completed on 7 September 2017;

   ·        the claimant did not report any neck pain to Dr Keller on 21 August 2019 and examination of the cervical spine was unremarkable;

   ·        other than the investigation at Nepean Hospital the claimant did not undergo any further investigations to her cervical spine until 22 November 2019, and

   ·        the first record of complaint of cervical spine symptoms following her consultation with Dr Soliman on 24 July 2017 did not occur until the claimant was examined by Dr Dixon on 4 March 2020, almost two years and eight months following the subject accident.

Left shoulder

1. The insurer disputes the claimant sustained any to the left shoulder. The insurer specifically disputes that the claimant’s left shoulder symptoms were caused by overuse noting that such symptoms were not reported for more than two years post-accident. The insurer notes:

   ·        the Lithgow Medical Centre records extend until 29 May 2019 and do not make any record of left shoulder complaints;

   ·        the claimant attended three orthopaedic specialists regularly in the years following the accident but did not report any symptoms referrable to the left shoulder;

   ·        when the claimant attended Dr Keller on 21 August 2019 she did not complain of any symptoms in the left shoulder and examination of the left shoulder revealed a full range of movement;

   ·        despite undergoing numerous radiological investigations in the years following the accident and being under the care of three orthopaedic surgeons the claimant first underwent an ultrasound of the left shoulder on 22 November 2019, almost two years and six months following the subject accident, and

   ·        the first record of the claimant complaining of left shoulder symptoms is contained within Dr Dixon’s report following his examination on 4 March 2020. On that occasion the claimant complained of left shoulder brachalgia with trapezial muscle pain. She also described pain and stiffness in her left shoulder and left elbow which she attributed to favouring her right elbow and wrist. Dr Dixon observed a reduced range of movement on examination of the shoulder.

Left knee

1. The insurer disputes the claimant sustained any to the left knee. The insurer notes:

   ·        the claimant did not report any injury to her left knee to either ambulance staff or on admission to Nepean Hospital;

   ·        the claimant did not report any injury to her left knee when first seen by Dr Soliman on 24 July 2017;

   ·        in the Medical Certificate dated 7 September 2017 Dr Soliman did not diagnose any injury to the left knee;

   ·        the Lithgow Medical Centre records extend until 29 May 2019 but do not refer to any left knee complaints;

   ·        the claimant did not complain of any left knee symptoms to either Dr Keller or Dr Smith when examined in August 2019, and

   ·        the first record of any left knee complaints is contained within Dr Dixon’s report following his examination on 4 March 2020. For the first time Dr Dixon recorded that there was a direct contusion to the left knee. The claimant reported that the pain and stiffness in her left knee had mostly resolved but that she was aware of audible crepitus when squatting.

Right elbow

1. The insurer accepts that the claimant sustained an injury to her right elbow in the accident involving a right ulnar nerve entrapment requiring surgical release.

2. The insurer notes an MRI of the right elbow performed on 14 August 2019 was unremarkable.

3. Dr Host reviewed the claimant on 27 August 2019 when he noted that the recent MRI scan did not explain the cause of her ongoing pain. He considered that the claimant’s symptoms were classic for lateral epicondylitis and that with the wrist injury there may be some tethering of the tendons which was putting too much strain on the attachment. In his opinion surgery was not indicated. He recommended further physiotherapy and some deep tissue massage.

4. Dr Keller observed a full range of movement in the left elbow and assessed 0% WPI.

Right wrist

1. The insurer accepts that the claimant sustained right trapezoid avulsion fractures but that such injury has resolved and gives rise to a 0% WPI. The insurer notes in the weeks prior to the accident the claimant underwent an ultrasound to her right wrist.

2. On 13 August 2019 Dr Yeoh reported that the claimant was not reporting any ongoing issues with her right wrist, and he was happy for her to return to full duties.

3. Dr Keller noted a mild restriction in movement on examination of the right wrist on 21 August 2019. Dr Smith noted similar findings on examination on 28 August 2019. Both doctors assessed the wrist injury as giving rise to 0% WPI.

Right index and middle fingers

1. The insurer accepts that the claimant sustained an injury to her right index finger and possibly her right middle finger in the accident.

2. At consultation with Dr Dowd on 21 September 2017 the claimant complained of stiffness over the right index finger and middle finger’s proximal interphalangeal joint (PIP). An ultrasound of the right hand performed on 25 September 2017 revealed several small foreign bodies

3. On 12 October 2017 Dr Dowd operated on the claimant’s right index finger to remove the foreign bodies detected by the ultrasound and he also performed an extensor tenolysis. Dr Dowd reported following the surgery the claimant had an improved range of movement.

4. Dr Keller accepted that the claimant sustained a laceration to her right index finger in the subject accident requiring surgical removal of a foreign body. His examination of the claimant’s right fingers and hand was unremarkable, and he assessed a 0% WPI.

Scarring

1. The insurer submits Dr Keller observed dorsal scarring of the right wrist, minimal visible scarring on the right index finger and a healed scar on the medial side of the right elbow without sensitivity, redness, thickening or tethering. He assessed a 1% WPI as did Dr Dixon.

EXAMINATION

1. Ms Conner attended the medical suites at the Commission on 11 January 2023. She was unaccompanied.

Pre-accident history

1. Ms Conner stated that she was in good health prior to the accident and had been working as a boxing and gymnast coach at the PCYC club and also in out-of-school hours care.

2. There was a fractured right clavicle at 18 years of age. An assault in 2012 by her ex-husband was investigated with X-rays but no fractures were determined. There was also an incidence of upper thoracic pain which occurred after lifting the bin followed by an assessment at Lithgow Hospital in April 2012.

3. Ms Conner lives with her partner and five children aged 15, 13, 11, 8, and 1½. She has recently stopped breastfeeding and continues to live in Lithgow.

History of the accident

1. On 21 July 2017, Ms Conner was driving her car when another vehicle from the other direction mounted the median strip causing a head on collision. She was wearing a seatbelt at the time and airbags were deployed. She stated she was assisted out of the car by the ambulance and taken to Nepean Hospital where she remained for three or four days. There was initial facial pain due to the impact of the airbag with cuts to her lips and black eyes. There was an immediate pain in the right wrist and hand with cuts to the fingers and left knee. She stated that there was bruising from the seatbelt across the right clavicle down to the left hip region.

Treatment following the accident

1. At Nepean Hospital, a fracture to the right trapeziod bone and possible scaphoid fracture was determined and treated with a back slab initially. Ms Conner was followed up at the fracture clinic at Nepean Hospital and her right arm was placed in a half cast. Her GP referred her to Dr Dowd, an orthopaedic surgeon who initially treated this with a splint.

2. On 12 October 2017 Ms Connor underwent surgery, namely the surgical removal of pieces of glass and an extensor tenolysis. Due to persistent pain in the right wrist, a cortisone injection was organised.

3. On 14 February 2019 Dr Yeoh, orthopaedic surgeon undertook a right wrist arthroscopic exploration with the excision of bony fragments. Dr Yeoh also reported persistent elbow pain and arranged injections of both right and left radial tunnels as well as a CT guided injection of the left shoulder.

4. On 29 June 2020, the left radial tunnel release was undertaken by Dr Yeoh.

5. On 3 June 2021, Dr Yeoh undertook a left shoulder arthroscopy with a slap repair and subacromial decompression.

6. On 19 April 2022, Dr Yeoh undertook removal of the ganglion of the right wrist.

7. Ms Conner also consulted Dr Host at Lithgow Hospital. He undertook a right cubital tunnel release and anterior ulnar nerve transposition surgery followed by physiotherapy.

8. On 16 March 2020 a sports physician, Dr Abraham diagnosed bilateral posterior interosseous nerve syndrome.

9. Ms Conner was involved in a second motor vehicle accident in 2021 with minimal damage to the car and no injury sustained. There was a further accident in November 2021, when Ms Conner’s car was rear-ended causing a dent in the bumper bar, but no injury was sustained.

Current symptoms

1. There is persistent pain in the right wrist and over the dorsum of the right hand with variable swelling of the right fingers. Ms Conner also feels stiff in both shoulders and gets pain in the left shoulder and left upper arm. This increases at night if she sleeps on the left side. There is pain over the left scapula and left trapezius muscle and lateral left neck.

2. There is numbness over the radial side of the right elbow related to the previous surgery and reduced range of movement in the right elbow. She has difficulty with wiping herself after toileting especially in the early morning. The left elbow is asymptomatic as is the left knee.

3. The pain in the right wrist increases with work. Ms Conner now has a casual full-time job as a disability support worker for about 25 hours per week. Due to pain in the right wrist, she avoids lifting or rolling any clients.

4. Since the accident, Ms Conner is unable to coach boxing. She is able to drive but the right wrist gets painful with long distance driving. Due to the pain in the right wrist, she occasionally wears a splint at work.

Present medication

1. At present Ms Conner takes an occasional Nurofen or Panadol in the morning and uses heat and ice packs. Rarely she takes a Panadeine Forte. She consulted a chiropractor on a weekly basis with good relief of the neck pain. She also has an occasional massage.

Clinical examination

1. Ms Conner walked in the room with a normal gait and states that she is right-handed. Ms Conner’s height was measured at 156cm and her weight at 73kg.

Cervical spine

1. On inspection, there is a normal contour and on testing range of movement, there is a full range of flexion/extension, side bending and rotation with no asymmetry. On palpation there was slight tenderness in the trapezius muscles more so on the right, but no guarding or spasm was noted.

2. On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 31cm bilaterally (10cm above the olecranon process) and in the maximum circumference of the forearm 27cm bilaterally.

Both elbows

1. There was a full range of movement of both elbows.

Both shoulders

1. On inspection of the shoulders no muscle wasting was apparent with no crepitus determined on passive movement. Impingement tests were negative. Full range of flexion and abduction of the left shoulder was limited by shoulder pain but no referral of any cervical symptoms. Active range of movement was measured using a goniometer and repeated three times.

Range of movement of both shoulders were assessed as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180°	160°= 1% UEI*
Extension	50°	50°
Adduction	50°	50°
Abduction	180°	140°= 2%UEI
Internal Rotation	90°	80°
External Rotation	90°	90°

*Upper extremity impairment

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	0°	0°
Pronation	80°	80°
Supination	80°	80°

Right Wrist

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	50°= 2% UEI	70°
Extension	50°= 2% UEI	70°
Radial Deviation	20°	20°
Ulnar Deviation	30°	40°

Fingers

1. Range of movement of the right index and right middle finger were measured.

Index Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension	70°= 11% finger 20°	90° 20°
§  PIP joint ·     Flexion ·     Extension	100° 0°	100° 0°
§  DIP joint ·     Flexion ·     Extension	60°= 5 % finger 0°	70° 0°

Middle Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension	90° 20°	90° 20°
§  PIP joint ·     Flexion ·     Extension	100° 0°	100° 0°
§  DIP joint ·     Flexion ·     Extension	70° 0°	70° 0°

Left knee

1. On palpation of the left knee there is no effusion with a full range of movement of 140° flexion and 0° extension with no ligament laxity and no tenderness on palpation.

Scarring

1. There are several surgical scars related to the accident.

2. There are healed arthroscopy portal scars over the left shoulder.

3. There is a 7cm curve scar over the medial right elbow with visible suture marks and reduced sensation immediately adjacent to the scar.

4. A surgical scar of the proximal right forearm has pigmentary changes.

5. There are two scars over the right wrist. Ms Conner is easily able to locate these scars and very conscious of their appearance. Due to the removal of the ganglion, there is a deep indentation on the dorsum of the right wrist and is also associated with a bony swelling distal to this and is tender to palpation. There are pigmentary changes in comparison to the normal surrounding skin and this indentation is a contour defect. Ms Conner states that due to the appearance of these scars she covers them with make up when going out socially and wears gloves to cover them at work.

CONSISTENCY OF PRESENTATION

1. Medical Assessor Moloney found the claimant’s presentation to be straightforward. The Panel does not agree with the suggestion of Dr Smith that Ms Conner was embellishing her condition or manufacturing weakness in her neck or shoulders.

CAUSATION AND INJURY

Right elbow

1. It is agreed that the claimant sustained an injury to her right elbow in the accident involving a right ulnar nerve entrapment requiring surgical release. The Panel finds the claimant sustained a fracture of the proximal radius and ulnar neuropathy caused by the accident.

Right wrist

1. It is agreed the claimant sustained a right trapezoid fracture caused by the accident.

Right index and middle fingers

1. It is agreed the claimant sustained injury to her right index finger and possibly her right middle finger caused by the accident. The Panel accepts injury to the right middle finger noting the ambulance report refers to laceration and bleeding to both the right index finger and the right middle finger.

2. The Panel finds the claimant sustained laceration and soft tissue injury to the right index finger and to the right middle finger caused by the accident.

Cervical spine

1. The insurer disputes the claimant sustained any of any significant injury to the cervical spine. If injury was sustained the insurer submits the injury resolved within weeks.

2. The Panel notes the accident was a high speed head on collision which caused the air bags to deploy. Ms Conner suffered facial injury including cuts to her lips and black eyes. The ambulance report noted complaints of pain to the neck and whilst the examination at Nepean Hospital was normal, she underwent a precautionary CT scan which did not reveal any abnormalities.

3. On 24 July 2017 Dr Solimon reported complaints of neck pain.

4. Whilst there was no complaint of neck pain thereafter until 6 November 2019 the Panel accepts Ms Conner would have been distracted by the ongoing injury to her right upper limb.

5. The Personal Injury Claim Form dated 4 October 2017 included soft tissue neck injury.

6. The Panel notes Ms Conner complained of ongoing neck pain for which she consults a chiropractor with good relief although she demonstrated a full range of movement of the cervical spine.

7. The Panel finds the claimant sustained a soft tissue injury to the cervical spine in the accident.

Left shoulder

1. The insurer disputes the claimant sustained injury to the left shoulder as a result of the accident, noting the suggestion it was caused by overuse is not borne out by the lack of complaint for over two years post-accident.

2. The Panel notes there is no suggestion the left shoulder pain is referred from the neck in accordance with the principle in Nguyen v Motor Accidents Authority of NSW and Anor [2011] NSWSC 351.

3. The Panel accepts Ms Conner undoubtedly favoured her right arm between the date of accident and late 2019, noting she was required to use a splint from time to time and continued to suffer from significant pain and tenderness of the right wrist. The Panel notes on 21 July 2017 at Nepean Hospital a back slab was applied due to scaphoid tenderness, on 16 August 2017 Dr Dowd recommended Ms Conner wear a splint for the undisplaced fracture of the right trapezoid, on 12 October 2017 Ms Conner underwent surgery to the right index finger, and on 3 August 2018 Dr Yeoh reported Ms Conner was exquisitely tender over the dorsal second CMC joint and trapezoid and had ongoing right wrist pain. Ms Conner saw Dr Yeoh regarding right wrist pain until 14 February 2019 when she underwent surgery to the right wrist. On 26 March 2019 Dr Yeoh reported ongoing pain in the right wrist and recommended further surgery.

4. On 6 November 2019 Dr Ahmed documented complaints of tingling and numbness in the left wrist and hand but referred Ms Conner for an ultrasound of the left shoulder, left elbow and left wrist. The ultrasound on 22 November 2019 demonstrated evidence of subdeltoid bursitis and impingement. On 23 November 2019 Dr Ahmed suggested bursitis in the right shoulder and lateral epicondylitis of the left elbow was most likely from overcompensation.

5. On 3 February 2020 Dr Yeoh reported the left elbow and left shoulder had started hurting six months earlier and he noted it sounded as if she was using her left upper limb a lot more due to the injury. He diagnosed a SLAP tear. Whilst Dr Keller found a full range of motion in both shoulders as of 21 August 2019 by 4 March 2019 Dr Dixon found pain and stiffness of the left shoulder with some impingement on elevation which he concluded was as a result of favouring the right arm.

6. A SLAP tear can result from forceful pulling of the arm and rapid or forceful movement of the arm when it is above shoulder level. The Panel accepts as a single mother of four young children between the date of accident on 21 July 2017 and late 2019 Ms Conner’s inability to use her right arm or her tendency to favour her right arm due to the presence of pain and tenderness, on the balance of probabilities, led to the development of soft tissue injury and a SLAP tear. The Panel is satisfied the accident materially contributed to injury to the left shoulder.

7. The Panel finds the claimant sustained soft tissue injury to the left shoulder consequent to the injury sustained to the right upper limb as a result of the accident.

Left knee

1. The insurer disputes the claimant sustained injury to the left knee noting it was not reported in the ambulance report, in the Nepean Hospital records or by Dr Soliman on 24 July 2017 or in his certificate dated 7 September 2017. No complaint was made in respect of the left knee to Dr Keller or Dr Smith and the first record of any left knee complaints is in the report of Dr Dixon following his examination on 14 March 2020. At that time the claimant reported that the pain and stiffness in her left knee had mostly resolved but she was aware of audible crepitus when squatting. On examination Medical Assessor Moroney reported the left knee was asymptomatic.

2. The Panel notes the Personal Injury Claim Form included soft tissue injury to the left knee.

3. Having regard to the high speed impact of the collision the Panel is prepared to accept the claimant sustained a soft tissue injury to the left knee, noting the inclusion in the claim form. However, having regard to the lack of complaint and where no treatment for the left knee was sought the Panel finds any soft tissue injury resolved shortly following the accident.

ASSESSMENT OF PERMANENT IMPAIRMENT

Cervico-thoracic spine

1. There are complaints of pain relieved by chiropractic treatment, but no significant clinical findings, no muscle guarding or spasm, no evidence of radiculopathy and symmetrical range of motion. There were no signs or symptoms of a non-verifiable complaint that was dermatomal in distribution. The claimant is assessed as having sustained a DRE Cervico-thoracic Category 1 impairment rating in accordance with chapter 3 of the AMA 4 Guides, page 103 which equates to a 0% WPI under Table 73 of the AMA 4 Guides page 110.

Left shoulder

1. The loss of flexion of the left shoulder equates to a 1% UEI under Figure 38, AMA 4 Guides page 43.

2. The loss of abduction of the left shoulder equates to a 2% UEI under Figure 41, AMA 4 Guides page 44.

3. There is a total 3% UEI which converts to 2% WPI under Table 3, AMA 4 Guides page 20.

Right elbow

1. The Panel notes Ms Conner continues to complain of numbness over the radial side of the right elbow and reduced range of movement. However, on examination Medical Assessor Moloney found a full range of movement and in accordance with the AMA 4 Guides the claimant has 0% WPI arising out of injury to the right elbow.

Right middle finger

1. Ms Conner demonstrated a normal range of movement of the right middle finger and no assessable impairment.

Right index finger

1. The right index finger demonstrated restriction of movement at the MP (metacarpophalangeal) joint. Under Figure 23 of the AMA 4 Guides, page 34 this equates to 11% finger impairment.

2. Restriction of movement of the right index finger was also demonstrated at the DIP (distal interphalangeal) joint. Under Figure 19 of the AMA 4 Guides, page 32 this equates to a 5% finger impairment.

3. Using the Combined Values index there is a right finger impairment of 15 %. This converts to 3% impairment of the hand under Table 1 of the AMA 4 Guides page 18 which becomes 3% UEI under Table 2 of the AMA 4 Guides page 19.

Right wrist

1. Using the methodology set in in the AMA 4 Guides figures 26 and 29 on pages 36 and 28 there is 4% UEI for the right wrist.

Combined right upper extremity

1. The total UEI is assessed by combining 3% UEI for the hand impairment with the 4% UEI for the right wrist which becomes 7% UEI and under Table 3 of the AMA 4 Guides page 20 converts to a 4% WPI.

Scarring

1. In accordance with the Guidelines multiple scars are not assessed individually but the effect of scarring is considered as to the total effect of the scar on the entire organ system. Scarring is assessed using the TEMSKI scale. The table uses the principle of best fit.

2. Ms Conner is very conscious of the scars, there is colour contrast with surrounding skin, she can easily locate the scars, trophic changes are evident to touch, suture marks are clearly visible, and always visible with her usual clothing. There is a contour defect visible over the right wrist and minor limitation in the performance of some activities of daily living. There is no adherence to underlying structures. The classification of best fit is 2% WPI.

Total permanent impairment

1. Under the Combined Values Chart, AMA 4 Guides page 322 the Panel finds the degree of permanent impairment caused by the accident to be 8% WPI.