Cubito v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Cubito v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 674
CLAIMANT:	Sandro Cubito
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Hodgkinson
MEDICAL ASSESSOR:	Gibson
DATE OF DECISION:	24 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Permanent impairment; whether injuries caused by the motor accident give rise to a whole person impairment of greater than 10%; soft tissue injuries to the cervical spine, chest, lumbar spine and left knee; Held – permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Medical assessment – degree of whole person impairment *Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017* (the Act) 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% 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 5 May 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%** (1%): (a) soft tissue injury to the cervical spine – 0%; (b) soft tissue injury to the chest – 0%; (c) soft tissue injury to the lumbar spine – 0%; (d) soft tissue injury to the left knee – 1%; (e) soft tissue injury to the left ankle – 0%; and (f) soft tissue injury to the right shoulder – 0%.

STATEMENT OF REASONS

INTRODUCTION

Sandro Cubito (the claimant) alleges he sustained injuries in a motor vehicle accident that occurred on 15 May 2018 while he was driving his motor vehicle along Carlisle Avenue in Mount Druitt. He says that upon approaching the intersection at the Great Western Highway, he proceeded through the intersection and was unexpectedly hit by a motor vehicle, which was negotiating a right-hand turn across his path.
There is a medical dispute between the claimant and the insurer as to the extent of the permanent impairment occasioned by the claimant’s injuries caused by the motor accident.
The injuries referred to the Personal Injury Commission (Commission) were:
(a)    head – contusion to head;
(b)    cervical spine – injury to neck – aggravation of pre-existing degenerative changes/spondylosis to cervical spine / small C4/5 and C5/6 spondylolisthesis;
(c)    shoulder – acromioclavicular joint arthropathy to right shoulder / subacromial/subdeltoid bursitis to right shoulder / partial thickness tear of the rotator cuff, AC joint hypertrophy impingement and bursitis to right shoulder / adhesive capsulitis /aggravation of pre-existing degenerative changes to right shoulder;
(d)    arm – injury to right arm – contusion to right elbow and arm;
(e)    chest – injury to chest – seat belt bruising to chest;
(f)    lumbar spine – Injury to lower back – aggravation of pre-existing degenerative changes/spondylosis to lumbar spine / L5/S1 disc bulge with right para-foraminal and extraforaminal disc protrusion with further paracentral components / sacroiliac joint dysfunction/ degenerative arthropathy including both sacroiliac joints;
(g)    leg – injury to left leg – soft tissue injury;
(h)    knee – injury to left knee – aggravation of pre-existing osteoarthritic changes to left knee / medial meniscus tear to left knee, and
(i)    ankle – injury to left ankle – bruising to left ankle.
A medical assessment was conducted by Medical Assessor Cameron (the Medical Assessor). By certificate and reasons dated 5 May 2023, the Medical Assessor assessed injuries caused by the motor accident gave rise to a degree of whole person impairment (WPI) of 0% (the medical assessment).
The claimant seeks a review of a medical assessment pursuant to s 7.26 of the Motor Accidents Injuries Act 2017 (the MAI Act). The medical assessment is the subject of this review.
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought. The President’s delegate referred the medical assessment to the Review Panel (the Panel) upon being satisfied that 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
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.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
Section 10.2 of the MAI Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 10.2 of the MAI Act for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive. The review assessment is conducted pursuant to AMA 4 and the Guidelines.

ASSESSMENT UNDER REVIEW

The Medical Assessor found that the claimant sustained soft tissue injuries to multiple body parts, and he did not sustain a traumatic brain injury. He found that the claimant had a history of diabetes associated with polyneuropathy and that this was the cause of the weakness and sensory deficit in his left leg. The Medical Assessor found, based on clinical information and the information provided by the claimant, that the claimant suffered soft tissue injuries to his head, cervical spine, right shoulder, chest, lumbar spine, left knee, left leg and left ankle. The medical assessor found that the soft tissue injury to the head had resolved and was not assessable was causing permanent impairment. The claimant had no significant clinical findings of examination in his cervical spine, right shoulder, right arm, chest, lumbar spine, left leg, left knee and left ankle. The claimant was assessed as having sustained 0% WPI.

EVIDENCE BEFORE THE PANEL

The Panel issued a direction to the parties requesting a provision of a joint bundle, which was provided as directed. The Panel has read and considered in detail the material contained in the joint bundle. The following is a summary of the relevant evidentiary material contained in that joint bundle.
In a Personal Injury Claim Form dated 5 June 2018, the claimant indicated that he had received injuries to his head, neck, chest, right shoulder, right arm, right elbow, lower back, left leg, left knee and left ankle as a result of the subject motor accident. He also indicated that he was suffering arthritis to both his knees prior to the motor vehicle accident.
In a statement which appears in the joint bundle, but which is undated, the claimant described the accident. He said he felt a strong impact on the front driver’s side of his car. Instinctively, he applied the brakes as the airbags deployed in his face. The force of the impact pushed the motor vehicle onto the Great Western Highway on his left into the second lane from the median strip after colliding slightly with the front of motor vehicles standing in the second lane from the median strip. He says because of the collision his right shoulder and right arm hit the driver side door and as the airbags deployed his body was thrown forward with his head and chest hitting the airbag. His body was slammed backwards with his neck, hitting the headrest and the whole of his back hitting the seat. His left leg, left knee and left ankle hit the centre console area below the dashboard.
He says that ambulance attended and gave him an injection, placed a collar around his neck and placed him on a stretcher. He was taken by ambulance to Nepean Hospital. He was initially treated in the Emergency Department where he gave a statement to the police. He was then admitted to hospital. During his stay, he underwent X-rays to his right shoulder/scapula, right elbow, pelvis, lumbar spine, left lower leg and chest. He also underwent a CT scan of his chest, upper abdomen, brain and neck. He was discharged on 17 May 2018.
He says that he continued to experience headaches, stiff and painful neck, stiff painful right shoulder, pain to his right elbow, pain to his chest, stiff and painful back, low back pain travelling down his right leg, pain to his left leg, stiffness, pain and swelling to his left knee, and pain his left ankle. He remained at home to rest taking Endone for his pain.
In his statement, the claimant sets out his treatment as follows.
(a)    On 21 May 2018, the claimant attended upon his general practitioner, Dr Romeo at Edensor Road Family Medical Centre. He was advised to continue with the Endone tablets and was certified unfit for work.
(b)    He was re-examined by his general practitioner on 30 May 2018 and referred for a CT scan of his cervical spine, MRI of his left knee and an ultrasound of his right shoulder. These were carried out on 1 June 2018.
(c)    He was again re-examined by his general practitioner on 8 June 2018 who referred the claimant to Dr Nabavi, orthopaedic surgeon, for his left knee and right shoulder injuries.
(d)    On 21 June 2018, he was re-examined by his general practitioner who referred the claimant for physiotherapy and prescribed pain medication.
(e)    On 2 July 2018, the claimant was examined by Dr Nabavi who referred him for a MRI of his right shoulder which was carried out on 18 July 2018.
(f)    Between 3 July 2018 and 17 December 2018, the claimant had some 30 sessions of physiotherapy at Sydney West physiotherapy.
(g)    He continued to experience headaches, a stiff and painful neck, a stiff and painful right shoulder, a stiff and painful back and lower back with pain travelling down his right leg, pain to his left leg, and stiffness, pain and swelling to his left knee.
(h)    On 30 July 2018, he was re-examined by Dr Nabavi after a review of his left shoulder MRI and was provided with a steroid injection to his right shoulder.
(i)    On 19 September 2018, the claimant was re-examined by his general practitioner who referred him to Dr Dave, orthopaedic surgeon. Dr Dave examined the claimant on 20 September 2018 and referred him for A MRI of his right shoulder and humerus. He was re-examined by Dr Dave on 25 October 2018 who diagnosed a lump on his right arm as lipoma in the deltoid muscle. Dr. Dave recommended conservative treatment of his right shoulder problems including hydrotherapy and muscle strengthening.
(j)    On 12 November 2018, the claimant was re-examined by Dr Shanmugam, general practitioner, who referred him for an ultrasound guided cortisone injection to his right shoulder.
(k)    On 24 May 2019, because of increased pain to his neck, the claimant underwent a CT scan of his neck.
(l)    On 29 August 2019, the claimant was re-examined by his general practitioner who referred the claimant for a CT scan of his lumbar spine.
(m)     On 5 September 2019, the claimant was re-examined by his general practitioner who referred the claimant for a CT guided cortisone injection to his lower back. A second cortisone injection was carried out on 14 October 2019 at the recommendation of his general practitioner whom he again consulted in October 2019.
(n)    On 14 November 2019, the claimant’s general practitioner referred the claimant for chiropractic treatment, which he underwent on 29 November 2019, 3 December 2019 and 13 December 2019.
(o)    On 9 January 2020, the claimant was re-examined by his general practitioner due to the ongoing experience of severe pain in his lower back. The claim was referred to Dr Giblin, orthopaedic surgeon.
(p)    He says that he made a complete recovery from his left hip condition on 20 January 2020. He saw Professor Ian Woodgate, who referred the claimant for A MRI scan of his cervical and lumbar spine, and X-ray of his pelvis and cervical spine and CT scan of his sacrum and sacroiliac joints.
(q)    On 18 June 2020, the claimant underwent A MRI scan of his lumbar spine, X-ray of his pelvis and CT scan of his sacrum and sacroiliac joints. On 24 June 2020, he was re-examined by Professor Woodgate who recommended an X-ray and MRI of his cervical spine and referred the claimant for a right sacroiliac joint injection.
(r)    The claimant was examined by Professor Woodgate on 14 September 2020 who referred the claimant for a course of sacroiliac prolotherapy.
The ambulance report dated 15 May 2018 following the accident the claimant was described as sitting in the ambulance wheelchair, appearing well perfused, alert and orientated, speaking in full sentences, with nil increased work of breathing. The claimant was described as having self-extricated himself from the motor vehicle following the accident and walking around the scene. He was complaining of right sided neck pain and very mild cervical spine tenderness, right shoulder pain, chest and abdominal pain. The claimant stated that he had pain from his seatbelt, lower shin pain, upon examination he had a Glasgow Coma Scale of 15. His pupils were equal and reactive to light. The claimant stated he had slight blurred vision and a mild headache, with mild cervical spine tenderness. There was no obvious trauma to the shoulder and no obvious chest trauma. His chest sounded equal and clear and had an equal rise and fall. He had slight pain on palpation to his abdomen, with no distension or rigidity. He denied any shortness of breath or pelvic pain. All other observations were unremarkable. The ambulance officers applied a spinal collar and spinal precautions. The ambulance officers acquired intravenous access. The claimant refused any analgesia. He was stable en route to the hospital.
On a secondary survey, the claimant’s cervical spine pain was described as sharp, his right neck (generalised) pain was described as sharp; his abdomen (generalised) pain was described as aching and sharp; chest pain was described as aching and sharp; left lower leg pain was described as aching and sharp; right shoulder pain was described as aching and sharp; left shin pain was described as aching and sharp.
In the CT scan of the brain and cervical spine performed on 15 May 2018 there was no evidence of acute cranial haemorrhage or infarction. There was no discrete intra or extra axial mass lesion identified. Gray – white matter differentiation appeared preserved. There was no midline shift. The basal cisterns remained patent. No acute skull fractures were demonstrated. The mastoid air cells were normally pneumatised. Mucosal thickening was noted along the floor of the right maxillary antrum. The orbits appeared unremarkable. Peri apical lucency involving 2-2.
In respect of the cervical spine there was preservation of normal cervical lordosis and alignment. There was no significant widening of the prevertebral soft tissues or evidence of haematoma within the spinal canal. There was no evidence of acute fracture, facet joint subluxation or dislocation within the spine. There was a small focus of non-specific calcification in the left lobe of the thyroid gland.
There was no acute injury identified within the chest or upper abdomen.
In the X-ray of the right shoulder/scapula, right elbow, pelvis, lumbar spine, left lower leg and chest performed on 15 May 2018, there was no acute fracture or dislocation detected in the right shoulder or right elbow. There was no acute displaced fracture or other significant abnormality detected in the chest. In the lumbar spine no fracture or dislocation was detected in the pelvis. A left total hip replacement was noted. The position of the components of the prosthesis appeared as planned. There was no acute fracture dislocation detected. There was no acute fracture or dislocation detected in the right lower leg including the knee. However, there was slight soft tissue swelling.
In the hospital assessment report dated 15 May 2018, it was noted that the airbags had deployed during the accident. The claimant was unsure if his head had been struck. He denied loss of consciousness. He reported pain to the neck, right shoulder, elbow and left shin and some lower back pain. He has remained in Glasgow Coma Score 15 since the events. He reported being otherwise well. His head was examined and noted that he had nil head injuries, his eye movements were intact. There was nil nystagmus or diplopia, or tenderness over bony prominence and nil trismus. His neck was tender to palpation in his cervical spine. He had tenderness to palpation along the upper aspects of his chest. He had tenderness in his abdomen and pelvis. He had full range of motion in all joints in his left upper limbs and tenderness to palpation over his right shoulder and elbow with some limitation of movement at these joints and secondary pain. There were no other injuries noted. In his lower limbs the left side was tended to palpation on his mid shin. He had full range of motion in all joints. On the right side he had full range of motion in all joints with nil overt injuries noted. The examiner’s impression was that the claimant had suffered likely rib fractures and cervical injuries secondary to trauma.
An ultrasound of the right shoulder conducted on 1 June 2018 showed that there were features of right sided supraspinatus tendinosis associated with bursitis and a soft tissue lesion over the lateral aspect of the arm which may reflect a haematoma for which further assessment by a MRI was considered to be of clinical value.
A CT scan of the cervical spine conducted on 1 June 2018 showed that there were minor posterior central disc protrusions inferior although no canal stenosis or nerve root encroachment was evident.
A MRI of the left knee conducted on 1 June 2018 showed an oblique tear to the body of the medial meniscus on a background of meniscal contusion. Low-grade degenerative chondromalacia patellae of the medial facet was apparent and there was moderate knee joint effusion.
In a letter dated 2 July 2018, Dr Arash Nabavi, orthopaedic surgeon with a specialty in knee, hip and shoulder surgery, who had seen the claimant with respect of problems with his right shoulder and left knee recorded that the claimant’s pain in his shoulder was over the anterolateral aspect and was associated with a lump over the deltoid. The doctor recorded that the claimant had noticed some weakness, crepitus and pain at night and during shoulder height movement. With regards to his knee, the claimant had pain and discomfort at night when walking and when climbing and descending stairs. He was unable to kneel or squat and was unable to exercise. He had noticed some swelling, stiffness, instability and crepitus in his knee without any episodes of locking. On examination, the claimant had signs and symptoms of rotator cuff tender tendinitis and subacromial impingement, with some weakness of his supraspinatus tendon in the right shoulder. His range of motion was well preserved. Regarding the left knee, he had pain and discomfort over the tendon. There was no joint line tenderness. A MRI scan was suggestive of a medial meniscal tear, however there was no pain over that area. He had an ultrasound of his shoulder, but the doctor suspected the claimant had a rotator cuff tear. He organised for the claimant to undergo a MRI scan of his right shoulder.

A MRI of the right shoulder performed on 18 July 2018 showed hypertrophic degenerative acromioclavicular (AC) joint arthropathy and subacromial sub-deltoid bursal inflammation, supraspinatus tendinosis with some partial thickness tears, low-grade but no high-grade cuffed tears and probable partial localised labral detachment postero-inferiorly with some adjacent focal chondrosis of the glenoid.
On 30 July 2018, Dr Nabavi reported that he had seen the claimant following the MRI scan of his right shoulder on 18 July 2018, which he opined demonstrated low-grade partial thickness tears of the rotator cuff, AC joint hypertrophy and impingement and subacromial bursitis. He recorded that he had injected the subacromial space with steroids and local anaesthetic to see if it would improve his symptoms. He planned to see the claimant again in six weeks to monitor progress.
In a letter dated 20 September 2018, Dr Dave recorded a mobile lump at the attachment side of the deltoid which was well lobulated and circumscribed and most likely represented a lipoma. The doctor recommended a MRI scan for further evaluation. He could not see a tear on the MRI scan from July 2018.
A MRI of the right shoulder and humerus dated 18 October 2018 noted a palpable abnormality related to a simple lipoma within the deltoid muscle distally, subacromial bursitis, supraspinatus tendinitis, a small bursal surface partial thickness tear and degeneration and tearing of the labrum centred superiorly.
In a letter dated 4 July 2018, Bernard Rusterholz, physiotherapist, who was treating the claimant for his left knee and right shoulder injuries sustained in the motor vehicle accident noted on examination that there was significant restriction in all active and passive right shoulder movements due to pain. Active flexion was to 95°. The claimant had antalgic gate and restricting left knee flexion to 100°. Treatment included manual therapies and pain-relieving modalities and range of motion exercises for the shoulder and range of motion and quadriceps strengthening for the left knee.
In a letter dated 30 July 2018, the claimant’s physiotherapist reported that the claimant’s left knee had responded well so far with improvements in range and motion and weight-bearing function. He was progressing strengthening exercises into weight-bearing as tolerated to help the claimant achieve normal function. The right shoulder remained irritable with active shoulder flexion still restricted at 120°.
In a letter dated 16 October 2018, the claimant’s physiotherapist reported that the claimant’s physiotherapy on his left knee and right shoulder had continued. Left knee pain continued to reduce with improved tolerance in all normal daily weight-bearing activity including prolonged walking. However, progress with respect to the right shoulder had been hampered due to persistent pain impeding restriction of active shoulder movements.
In a letter dated 7 December 2018, the claimant’s physiotherapist referred the claimant for hydrotherapy for his persistent right shoulder pain and loss of range of motion. He reported that the claimant had experienced limited benefit from the cortisone injection. The left knee pain was reported as progressing well, although there was still some restriction on squatting.
In a CT scan of 24 May 2019, no bony injury was sighted. There was a low-grade disc bulge noted at C6-7.
In a CT of the lumbar spine taken on the 31 August 2019 it was noted there was sacralisation of L5. Lumbar sacral spondylosis prominently with exiting right L4 and descending L5 nerve root impingement was also noted.
On 14 October 2019, the claimant underwent a cortisone injection in the L4-5 foramen at the hand of Dr Niranjan Ganeshan. Note was made of a very high-grade disc protrusion at L4 level with severe root impingement. The doctor considered that an incomplete response to the injection would mean that surgical review was warranted rather than a repeat injection. An x-ray of the light right hip reported on 16 January 2022.
A MRI of the lumbar spine taken on 18 June 2020 found that there was a transitional lumbar cycle level with lumbarisation of S1. There was disc dehydration at L4/5 and L5/S1 with Modic type II endplate changes at L5/S1. There were no dominant compression fractures. The radiologist concluded L5/S1 disc bulge with right pre-foraminal and extraforaminal disc protrusion impinging with further paracentral components. There was right L5 foraminal and potentially left S1 lateral recess root impingement.
A x-ray of the pelvis indicated the left total hip replacement. Osteoarthritic change in the right hip was also noted. There was no widening of the symphysis. There was no widening of the sacroiliac joints. There was no evidence of instability at either the sacroiliac joints or the symphysis pubis.
A CT scan of the sacrum and sacroiliac joints concluded that there were degenerative changes involving both sacroiliac joints, more marked on the left with partial fusion of the left joint superior. Discovertebral changes in the lower lumbar spine and osteo arthritic change in the right hip joint were also noted.
In a report dated 3 July 2020, Associate Professor Ian Woodgate, further to a consultation with the claimant, recorded that the claimant continued to complain of right leg pain, in including paresthesia to the right foot and including the great toe and occasional unbearable low back and right leg pain particularly in the buttock, lateral thigh and posterolateral calf. It was reported that he was requiring up to seven Panadeine Forte and seven Nurofen daily. Any rotation of his hip, especially externally, increased the pain that he felt in his buttock region. Clinically his gait was mildly antalgic on the right. There was significant tenderness over the right sacroiliac joint, the abductor insertion to the pubic synthesis on the right and over the distal iliotibial band as well as minimal discomfort in the low lumbar region in the area of the right L5/S1 facet.
Associate Professor Woodgate had regard to the multiple investigations undertaken during 2019. These included the CT scan of the lumbar spine. He believed that several of the images had been under reported. He opined that the CT scan of the cervical spine of 24 May 2019 failed to comment on a small C4/5 spondylolisthesis, a small C5/6 spondylolisthesis with a small central posterior disc bulge and disc space narrowing, with early syndesmophyte formation on the inferior border of C5 in anterior syndesmophyte at C7/T1. CT scans of the lumbar spine dated 31 August 2019 showed sacral realisation of L5 with significant L4/5 degenerative change worse on the right side with a symmetric disc failure more at L4/5 than L3/4, with some significant right L4/5 foraminal stenosis, more than L3/4 stenosis. He remarked that there was no comment about the partial ankylosis of the left sacroiliac joint superiorly and significant changes involving the right sacroiliac joint with irregular joint space, iliac side more than sacral side sclerosis, and gaseous degeneration.
Associate Professor Woodgate also had regard to the new X-rays of the pelvis and left hip performed on 16 January 2020, which showed the left hip arthroplasty in optimal position. He remarked that there was a significant sacroiliac change particularly on the right side as well as some mild arthritic change on the right hip with a superolateral, acetabular cyst.
Based on the history and examination as well as the imaging, he opined that it was most likely that the claimant had sustained a post traumatic (motor vehicle accident) sacroiliac injury than a lumbosacral spine injury, although there was clearly an exacerbation of his lumbar spine disease as well as cervical spine disease.
He remarked upon imaging of the pelvis and spine. Functional pelvic X-rays confirmed there was significant degenerative changes in the sacroiliac joints with no instability. There was also moderate degenerative change in the right hip. The MRI scans of the lumbar spine showed the changes in the lower lumbar area. New CT scans of the sacrum and sacroiliac joints confirmed significant bilateral sacroiliac arthropathy with partial ankylosis superiorly on the left as well as change in the low lumbar region and right hip. These images confirmed his original diagnosis of post traumatic sacroiliac disease, and exacerbation of lumbar disease and exacerbation of viral spine disease.
A MRI scan of the cervical spine dated 20 July 2020 noted no evidence of traumatic injury. Observed were annular tears and low-grade disc bulges with minimal cord flattening at C5-six and C6-7 with no root impingement.
An X-ray of the cervical spine dated 20 July 2020 noted that there was normal vertebral alignment. There was no evidence of compression fracture. There was no other fracture or dislocation. There were endplate osteophytes at C5-6.
The claimant also underwent a cortisone injection in his sacroiliac joint on 20 July 2020.
Emergency Department notes for Liverpool Hospital noted that the claimant was involved in a motor vehicle accident on 24 October 2020 when he lost control driving at 60kmph and swerved into a guard rail on the driver’s side. The airbags were deployed. He self-extracted. He was mobilising independently. He had no amnesia. He complained a right shoulder mild anterior pain on palpation. He reported mild pain on palpation of his left knee on the medial joint line. An X-ray is undertaken of his right shoulder and left knee. The claimant underwent a CT scan of his thoracic aortogram and abdomen and pelvis. Acute thoracic and abdominal pelvic injury were detected.
A X-ray of the left knee performed on 21 February 2022 recorded that the claimant twisted his left knee on 9 February 2022 stepping out of a bus his leg gave away and he heard a cracking sound. He had been unable to weight bear and had been in pain. There was no fracture of the left knee seen. There was minimal narrowing of the medial compartment of the left knee joint. There was very minor degenerative change affecting the medial knee joint margin and the medial tibial spine. Degenerative changes affecting the patellofemoral joint margin were noted. Enthesopathy was noted in the quadriceps tendon insertion. Fluid was noted in the suprapatellar bursa there was a slight thickening of the prepatellar soft tissues. Vascular calcification was noted posterior to the left knee.
An ultrasound of the left knee found ultrasonic features favoured a medial meniscal tear. Moderate joint infusion. No recent bony injury was seen.
A CT scan of the left knee performed on 1 March 2022 found that there was an extensive complex bucket handle tear of the medial meniscus with a large flipped meniscal fragment evident. Large knee joint effusion was present.
On 14 April 2022, Dr Lieu, orthopaedic surgeon, reported on the left knee arthroscopy and partial mastectomy he performed. The meniscus was debrided back to a stable base. By 4 May 2022, following significant physiotherapy the claimant was reported to have excellent range of movement with 5 to 130°. Movement was still painful however especially around his patella femoral and medial compartments as expected. There was no significant ongoing swelling in the knee. He was expected to return to pre-injury duties by 12 weeks from surgery if he progressed as expected.
Reporting on 3 June 2022, having reviewed the claimant, Dr Lieu observed clinically there was only a small persisting knee effusion and ongoing tenderness around his patella femoral joint and medial compartment correlating with the area of surgery and the pre-existing patellofemoral arthritis. The claimant reported numbness and weakness in his quadriceps over the L2 region of his proximal thigh. He was referred for a MRI of his lumbar sacral spine.
In a report dated 6 July 2022, Dr Lieu reported that the claimant no longer and any ongoing trouble with his knee but the numbness and weakness in his quadriceps persisted. A MRI of his lumbar sacral spine showed multi-level degenerative disc disease without any significant changes around L2-L3 Level. There was no surgical explanation for his pain.
The MRI of the lumbar spine dated 10 June 2022 concluded that the claimant had multilevel degenerative change involving mid lower lumbar spine. Moderate right sided foraminal narrowing at the L5/S1 level with possible impingement of the exiting right L5 nerve root.
An X-ray of the left knee performed on 5 September 2022 concluded there was moderate joint effusion and early manifestation of osteoarthritis. No bone on bone appearance was noted.
Dr Bassel Hassan, consultant neurologist, in a report dated 15 September 2022 noted the left knee injury of February 2022 and the left knee arthroscopy in April 2022. Following an examination, the doctor opined that the clinical features were suggestive of mild diabetic femoral neuritis. He stated that in diabetics even when the glycaemic control is good certain physiological stresses such as the post-operative state may trigger femoral neuritis. There was no significant wasting and only marginal weakness hence it looked mild clinically.

Medico-legal evidence

Dr David Croker, consultant occupational physician, in a report dated 22 February 2021 was of the opinion that the claimant sustained an injury to the right shoulder girdle at the time of the subject motor vehicle accident. He based his opinion on the MRI examination of 19 July 2018 which demonstrated multiple degenerative changes which were aggravated by the motor accident. The doctor also opined that the claimant had suffered from an aggravation of pre-existing degenerative changes/spondylosis to the regions of the cervical spine and lumbar spine. He was also in the opinion that the claimant had suffered and aggravation of pre-existing osteo arthritic changes at the left knee. He assessed the claimant’s WPI as 8% for the upper extremity, 5% for the cervical thoracic spine, and 5% for the lumbosacral spine. He did not consider there were ratable impairments pertaining to other regions.

Re-examination

The claimant attended upon a re-examination with Medical Assessor Gibson on 19 January 2024. The following is the Medical Assessor’s re-examination report:
“Mr Cubito attended as arranged, and was unaccompanied. He brought no imaging studies with him for the assessment.
He lives with his wife and 40-year-old son in Horsley Park. At the time of the subject accident, he was working as a full-time trades’ specialist with Bunnings. He had been in the role for eight months and working with Bunnings for three years.
Mr Cubito was involved in a motor vehicle accident in 1998, suffering bruising and an injury to his right shoulder. He said he was off work for only about a week (at the time he was working as a concreter) and his injuries had totally resolved.
He had had a left total hip replacement in 2012. And had remained under the care of his orthopaedic surgeon, Professor Woodgate, with reviews every two years.
He was diagnosed with diabetes mellitus in around 2008 and is prescribed Janumet and gliclazide. There was no history of any prior motor accidents or other injuries or relevant medical or surgical issues.
The subject accident had occurred on 15 May 2018. Mr Cubito had been driving a Toyota Corolla sedan (2013/14). His son was in the front seat and his wife in the back. He was halfway through the intersection with a green light, when his car was hit by a Commodore sedan. There was damage to the front/driver side and the air bags deployed.
Mr Cubito remembered feeling in a daze. He didn’t describe having had a direct hit to his head, but still was unsure whether he had lost consciousness.
An ambulance arrived and he was conveyed to Nepean Hospital where he remained for the next 3-4 days. He said that whilst at the hospital he was noted to have left knee, left ankle, right shoulder, lower back and pelvic problems. By way of comment, as Mr Cubito confirmed, there was some confusion regarding left and right knee at the hospital. The history obtained in the emergency department was of right upper chest, right arm and right shoulder, and complaints of neck and chest pain. On examination there was neck tenderness, slight numbness in the T4 dermatome on right, right power limited by pain lower limbs, previous numbness in L1/2 had gone, left knee was tender with limitation of movements. There was a small amount of lower thoracic midline pain.
He was discharged to the care of his general practitioner with recommendation that his diabetes be reviewed with a view to stricter control of his blood sugar.
Mr Cubito said that he had then remained at home as his left knee was swollen and painful, his left ankle was bruised, and his right shoulder was ‘completely gone.’
He had attended South West Physiotherapy.
He had visited Prairiewood Aquatic Centre for exercise physiology.
He was referred to orthopaedic surgeon, Dr Nabavi and then Dr Dave.
Dr Nabavi had injected the right shoulder with cortisone with no sustained improvement. The doctor noted on 2 July 2018 that ‘The pain in his shoulder is over the anterolateral aspect and is associated with a lump over the deltoid. He has noticed some weakness, crepitus and pain at night and during shoulder height movement. With regards to his knee, he has pain and discomfort at night when walking, when climbing and descending stairs. He is unable to kneel or squat and he has been unable to exercise. He has noticed some swelling, stiffness, instability and crepitus in his knee without any episodes of locking. On examination he has signs and symptoms of rotator cuff tendonitis and subacromial impingement, with some weakness of his supraspinatus tendon in the right shoulder. His range of motion is well preserved. With regards to the left knee, he has pain and discomfort over the patella tendon. There is no joint line tenderness. A MRI scan is suggestive of a medial meniscal tear however he has no pain over that area. He has had an ultrasound done of his shoulder, but I suspect that he has a rotator cuff tear.’
MRI scan left knee performed 1 June 2018 had shown a tear to the body of medial meniscus on a background of meniscal contusion. There was degenerative chondromalacia patellae and a moderate knee joint effusion. MRI of the right shoulder on 19 July 2018 had shown degenerative acromioclavicular joint arthropathy and subacromial-subdeltoid bursal inflammation.
Mr Cubito said, that due to his left knee, right shoulder and low back symptoms he had remained off-work for about 12 months after the subject accident. Part of the issue had been that Bunnings would not take him back until he was deemed fully fit. He had then had some difficulty finding work.
He said he had continued to wear a knee guard. He had no specific treatment to his left knee, and he was just ‘living with it’ despite there being ‘throbbing’ joint pain at times.
On 24 October 2022, so following the subject accident, Mr Cubito was involved in a minor motor vehicle accident. He said he hadn’t sustained any significant injuries as a result.
There was then a subsequent injury to the left knee. At that time, Mr Cubito had been working full time as a maintenance assistant with St Johns Park Bowling Club. He said the job involved a variety of different tasks, ranging from changing light bulbs and washers to driving a bus and garden maintenance. He said he used a knee pad for kneeling at work.
On the day of the left knee injury, he had taken the club's courtesy bus to Service NSW for registration. He said he had opened the door and stepped out of the bus onto level ground when his left leg gave way. He heard a crack and there was immediate pain in his left knee, but he didn’t fall over. The knee started to swell the same day. He reported the injury, but continued at work for the remainder of the day, and in fact for another week, prior to consulting his general practitioner. He was then referred for A MRI scan of the left knee, which identified a bucket handle tear of the medial meniscus. It was following this that he had visited Dr David Lieu. Dr Lieu performed a left knee arthroscopy and partial meniscectomy at Campbelltown Private Hospital on 14 April 2022. Intraoperative findings were of a ‘large unstable radial flap tear of posterior horn medial meniscus sitting in intercondylar notch, G1-2 changes medial and patellofemoral compartment.’
Mr Cubito said the numbness over the left thigh had come on two weeks postoperatively. On 4 May 2022 Dr Lieu had noted he has had significant physiotherapy and has had excellent return of movement, with 5-130 degrees. His movement is still painful however, especially around his patellofemoral and medial compartments as expected. There was no significant ongoing swelling in the knee.
On 3 June 2022, Dr Lieu noted there was a small knee effusion and ongoing tenderness patellofemoral joint and medial compartment. He noted that "he continues to have numbness over the L2 region of his proximal thigh. There is also significant persisting quadriceps weakness. He feels unsteady on his feet as if his knees will buckle under him. This is due to his persisting quadriceps weakness. He went on to add the numbness and weakness is not entirely explained, but may be related to pathology in his lumbar spine around the L2 level, or from a block or from his tourniquet. Tourniquet related nerve damage would be very unlikely given the short duration of time that it was inflated.
On 6 July 2022, he notes that the claimant’s knee is no longer giving him any regular ongoing trouble, but the numbness and weakness in his quadriceps persists. He goes on to note that a MRI of the lumbar spine had shown no significant changes at the L2/L3 level. He went on to state that the knee surgery could not have caused quadriceps or thigh weakness and numbness and there was no discernible cause.
The MRI scan of the lumbar spine performed 10 June 2022 had shown multilevel degenerative change involving mid/lower lumbar spine. Moderate right-sided foraminal narrowing at the L5/S1 level with possible impingement of the exiting right L5 nerve root.
On 15 September 2022, Mr Cubito was reviewed by neurologist Dr Hassan. The doctor had noted that there was no definite wasting in the quadriceps muscles, the left side is slightly thin when compared with the right side which is to be expected given the recent knee pain. There is marginal weakness of left hip flexion grade 4+/5 and that he had reduced tactile sensibility over the anterior, medial and lateral aspects of the thigh with sparing of the posterior thigh. He concluded that the clinical features are suggestive of postoperative mild diabetic femoral neuritis. So he recommended nerve conduction study/EMG. This was reported on 11 January 2023 and concluded "moderate severity sensorimotor axonal polyneuropathy in the lower limbs (likely diabetic polyneuropathy), normal needle EMG examination of above listed muscles, no EMG evidence of denervation due to femoral neuritis, plexopathy or radiculopathy in left lower limb (this does not exclude mild predominantly sensory femoral neuritis).
Mr Cubito was under the impression that these studies had failed to demonstrate a diabetic aetiology for his symptoms.
He said he had visited a specialist on behalf of his worker’s compensation insurer on 25 August 2023. Mr Cubito maintained that the doctor had suggested that his left knee injury should have been addressed following the subject motor accident, and if had, he wouldn’t be having the issues he was having now.
The left knee surgery had been paid for by the workers' compensation insurer.
His workers' compensation insurer is managing a graded return to work with his employer, St Johns Park Bowling Club. Mr Cubito is currently working three days a week.
Mr Cubito currently visits a general practitioner every 2-3 weeks. He takes ibuprofen
4-6 tablets a day. He had taken trial of Endone in the past but has not taken this medication for some time.
He attends weekly sessions of exercise physiology.
There were no further reviews with Dr Lieu.
There was no other treatment planned.
Mr Cubito current complaints were of intermittent ‘twinges’ of neck discomfort and a sensation of his left leg giving way when walking.
He said that his right shoulder is ‘100 percent’ some days, but other days ‘two percent’. And this movements vary depending upon the level of the pain.
There were no other upper limb issues.
He denied having any current chest pain. The low back pain was variable, but very painful at times. He said he has difficulty getting comfortable. He localised the pain to the right lower lumbar facets. At times there is pain referral from his low back over the whole right thigh spreading as far as his right knee.
PHYSICAL EXAMINATION
Mr Cubito was right hand dominant. He was 172cm tall and weighed 85kg. He was wearing a Velcro support over his left knee. He had an antalgic gait due to left knee pain, and was initially a bit stiff before he moved about.
On examination of the neck, there was ¾ normal flexion and extension, ¾ lateral flexion bilaterally, and 2/3 normal rotation bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the shoulders. Active shoulder movements as measured with the goniometer were as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

180 °

180 °

Extension

50 °

50 °

Internal Rotation

80 °

90 °

External Rotation

70 °

80 °

Abduction

170 °

180 °

Adduction

50 °

50 °

There was normal range of movement of other upper limb joints.
On examination of the lumbar spine, flexion and extension 2/3 normal range, lateral flexion ¾ normal range bilaterally. Rotation normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower limbs, circumferences were measured repetitively and were equal bilaterally at both thigh and calf. At thigh 10 cm above the patella 42cm and at calf at maximum circumference 37.5cm.
I note Assessor Cameron had commented that there was wasting of the left quadriceps muscle, but he had not recorded the measurements, whereas Dr Hassan had noted normal circumferences. Mr Cubito said that he had been working very hard with his therapist, to strengthen the muscles around his left knee, which may explain the difference.
There was normal sensation in the lower limbs apart from an area of reduced sensation over anterior and anterolateral aspect of his left thigh. Lower limb power and reflexes were normal apart from some variability at the left knee due to pain inhibition secondary to his left knee complaints.
Movements of both ankles were normal range.
Knee flexion was 110 degrees on the left, and 115 degrees. There was full extension bilaterally, but with some pain with full extension on the left. There was no crepitus or instability demonstrated in either knee.”

PANEL’S CONCLUSIONS

The Panel has concluded that the claimant did not suffer a head injury or a contusion in the subject accident. This is because the claimant has a detailed memory of events preceding and after the accident. He remembers the airbags being deployed. His main symptoms were pain. A significant head injury will be associated with a period of amnesia for events. The ambulance record reports that the claimant self-extricated. He was observed to have a Glasgow Coma Scale 15/15 on two occasions. The Nepean Hospital records detail the claimant’s statement on admission that he experienced no loss of consciousness and experienced no head injury. On multiple occasions this information was repeated. There is no mention of bruising to the head. The CT brain scan performed on 16 May 2018 noted no abnormality. Although the claimant reported he experienced headache soon after the accident, by reason of the forgoing, the Panel is not satisfied that they attributable to a head injury. This is especially so in the absence of a record of a head injury. Overall, there is no evidence to support a head injury, or a contusion having been sustained in the subject accident, therefore, this claimed injury is found and not assessable.
The Panel has concluded that in the subject motor accident the claimant sustained soft tissue injuries to his chest, neck, right shoulder, low back, left knee and ankle.
The MRI scan of the claimant’s left knee dated 1 June 2018 showed a tear of the medial meniscus and of the MRI scan of the right shoulder dated 19 July 2018 acromioclavicular joint arthropathy and subacromial-subdeltoid bursal inflammation.
The claimant maintained that as a consequence of the subject accident he had ongoing issues with his left knee culminating in it giving way at work several years later in 2022 and necessitating arthroscopy and partial medial meniscectomy on 14 April 2022. During his recovery from this procedure, he had noticed an area of numbness over his left anterolateral thigh. The thigh numbness was explicable, given the history of diabetes and polyneuropathy and so unrelated to the subject accident or the knee surgery.
However, in the Panel’s view the impairment due to the meniscectomy would be regarded as a consequence of the subject accident, as the Panel was of the opinion that the subject accident had made a more than negligible contribution to the consequent injury. This was because there was objective evidence of knee pathology in the MRI scan 1 June 2018 following the subject accident. There were ongoing complaints of pain and instability, which would be consistent with the damaged meniscus failing to heal. This had culminated in his left leg giving way following an otherwise inconsequential incident in February 2022 when as the claimant had stepped out of a bus onto level ground and his knee gave way.
Based on the Panel’s assessment, there is 1% WPI due to the injuries caused by the motor accident, which the Panel has, following the re-examination, calculated as follows:

Cervical [Cervicothoracic] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, Guidelines. Thus, in reference to Guidelines the cervical spine injury would be assessed at diagnosis-related estimate (DRE) Impairment Category I, thus 0% WPI.

Lumbar [Lumbosacral] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, Guidelines. Thus, in reference to Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.

Chest

There is no assessable permanent impairment related to a soft tissue injury to this region. This is consistent with section 6.229, Guidelines and does not result in any assessable impairment.

Right arm (excluding right shoulder)

The only applicable method is related to abnormal range of motion and using this method there is 0% WPI. There were no separate complaints in relation to the right arm.

Right shoulder

Movements were measured with a goniometer and were consistent. Total upper extremity impairment (0%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4 and then converted to 0% WPI using Table 3, p 20, AMA 4.

Left knee

There was no muscle atrophy [Chapter 3 AMA 4, Table 37, p 77], no unilateral muscle weakness [Chapter 3 AMA 4, Table 38-39, p 77]. Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p 78] resulting in 0% WPI. There was no patellofemoral crepitus [Table 62, Chapter 3, AMA 4, p 83] of either knee. There were diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p 85]. This was because there was a partial meniscectomy of the left knee, and the meniscal tear was evident following the subject accident. This rates 1% WPI.

Left ankle

There was no muscle atrophy [Chapter 3 AMA 4, Table 37, p 77], no unilateral muscle weakness [Chapter 3 AMA 4, Table 38-39, p 77]. There were no diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p 85]. Foot and ankle movements assessed with reference to Tables 42, 43, 44 [Chapter 3, AMA 4, p 78] gave rise to 0%.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180 °	180 °
Extension	50 °	50 °
Internal Rotation	80 °	90 °
External Rotation	70 °	80 °
Abduction	170 °	180 °
Adduction	50 °	50 °

[2024] NSWPICMP 674

24 September 2024