Diep v AAI Limited t/as AAMI
[2023] NSWPICMP 11
•13 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Diep v AAI Limited t/as AAMI [2023] NSWPICMP 11 |
| CLAIMANT: | Ngoc Kieu Diep |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 13 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of Medical Assessor’s (MA) assessment under section 7.26; claimant alleged injury to neck, both shoulders and both knees in significant roundabout collision; claimant admitted to hospital with chip fracture to left lateral femoral condyle and suspected fracture of patella; claimant’s medico-legal specialist assessed WPI at 18% in March 2021; MA assessed WPI at 0%; issue as to neck diagnosis related estimate (DRE) I vs DRE II; shoulder impairment and whether right knee injury caused; Held – claimant did not satisfy criteria for DRE II; shoulders had full range of motion and therefore no impairment; right knee not injured in accident based on no record in hospital or GP notes and claimant’s admission that right knee pain commenced months after the accident; three methods of assessment for knee injury discussed; WPI 3%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Menogue dated 23 June 2022. 2. Certifies that the degree of Ms Diep’s whole person impairment, as a result of the injuries caused by the accident on 28 December 2019 is not greater than 10%. |
STATEMENT OF REASONS
Introduction
On 28 December 2019, Ngoc Kieu Diep (the claimant) was a front seat passenger in a motor vehicle hit on the side by another vehicle at an intersection in Cabramatta. The offending vehicle apparently drove through a red light at about 50km per hour.
On or about 14 January 2020, the claimant made a claim for personal injury benefits on AAMI, the third-party insurer of the at-fault vehicle[1]. On or about 15 September 2021 the claimant lodged a claim for damages with AAMI[2].
[1] The claim form is at page 11 of the insurer’s bundle of documents.
[2] The Panel has not been provided with a copy of the damages claim form. The date the claim was made is referred to in email communication at page 58 of the insurer’s bundle of documents.
A medical dispute has arisen in Ms Diep’s damages claim concerning her entitlement to damages for non-economic loss. The claimant referred this dispute to the Personal Injury Commission (the Commission) and on 23 June 222, Medical Assessor Menogue determined the claimant had no entitlement to non-economic loss.
The claimant was disappointed with that decision and lodged an application for review with the Commission. On 8 September 2022, a delegate of the President of the Commission determined that there was reasonable cause to suspect a material error in the assessment and the President has now convened this Panel.
Legislative framework
Ms Diep’s claim and entitlements to damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination[4].
[4] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Menogue’s, further medical assessments and the review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.
Bearing in mind the injuries in issue in Ms Diep’s matter the following impairment assessment provisions are relevant.
Spinal impairment assessment
Assessment of the spine required consideration of Chapter 3 of AMA 4. Clause 6.111 of the Guidelines provides that only the diagnostic related estimate (DRE) method of assessment is allowed.
The spine is divided into three regions (cl 6.115):
(a) the cervicothoracic;
(b) the thoracolumbar, and
(c) the lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (cl 6.45).
There are five diagnostic related categories and a number of indicia provided in Table 6.7 of the Guidelines. The first is DRE category I which is appropriate if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are also relevant.
DRE category II requires:
(a) Pain with guarding or
(b) Non-uniform range of motion – dysmetria or
(c) Non-verifiable radicular complaints defined in Table 6.8 of the Guidelines as symptoms (shooting pain, burning sensation, tingling) which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires radiculopathy which is defined in cl 6.138 as
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Shoulder impairment assessment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3 of the AMA 4 Guides. The upper extremity is divided into regions, the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) internal rotation, and
(f) external rotation.
Measurement of motion is undertaken using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4.
Knee impairment
Lower limb impairment is covered by Section 3.2 of Chapter 3 of the AMA 4 Guides. There are 12 methods of assessment and Table 6.5 of the Guidelines sets out which method can be used in conjunction with other methods. Gait derangement is rarely used however range of motion, arthritis and diagnosis-based estimates are the more common methods of assessment.
Assessment under review
Medical Assessor Menogue examined the claimant on 23 June 2022 and issued his certificate the same day. He was asked to assess whole person impairment of the following “injuries”:
(a) cervical spine – restricted range of neck flexion, extension and rotation in all directions – dysmetria;
(b) both shoulders – rateable restrictions of shoulder movement in both shoulders, and
(c) both knees – marked retro patella crepitus in each knee. Pain on resisted knee extension. Restricted range of knee movement in each knee.
Medical Assessor Menogue takes the following history:
(a) before the accident the claimant worked in the family-owned laundry business (she has returned to pre-accident hours but was avoiding heavy lifting);
(b) she shared domestic duties with her family, but her husband looked after the outside of the home;
(c) she denied any previous neck, back, arm or leg symptoms;
(d) she has high blood pressure and high cholesterol and is on medication for that and she takes Panadol for her knee pain;
(e) the claimant was taken to Liverpool Hospital after the accident where a small chip fracture of the left lateral femoral condyle was diagnosed and she was discharged two days later, non-weight bearing and advised to see her general practitioner (GP);
(f) she attended her GP three days after discharge with a left knee “crack” and seat belt type bruising. Subsequent attendances reported neck pain spreading to her shoulders, and
(g) the claimant complained of “lumps in the head” and a left hip ache but he could not find these supported by the GP notes.
Medical Assessor Menogue reviewed the GP notes but could find no specific reference to a right knee injury.
In terms of current symptoms Medical Assessor Menogue reports:
(a) neck – “she states her neck is mostly better” although she did report an intermittent ache;
(b) right knee – this is her “major concern” with pain behind the knee worse at night and that “this discomfort commenced several months after the subject accident”, and
(c) left knee – this has mostly settled but there is some low-grade ache.
When examining the claimant’s neck the assessor records:
(a) tenderness with palpation of the C7/T1 right sided facet;
(b) no muscle guarding or spasm;
(c) full and normal range of flexion and extension without discomfort;
(d) one quarter restriction in lateral rotation and lateral flexion which was symmetrical;
(e) circumference of upper and lower arms were the same and there was no evidence of loss of tone, wasting or tenderness, and
(f) there were no sensory disturbances that followed any anatomically derived dermatome
On examining the shoulders:
(a) there was no rotator cuff or spinate muscle wasting;
(b) there was no tenderness on palpation of the acromioclavicular joint, and
(c) there was some mild restriction of movement although not significant for someone of 62 years of age.
When assessing the claimant’s knees, the Medical Assessor noted:
(a) no obvious abnormality;
(b) knee movements limited to 120 degrees on both sides (normal is considered to be 140), and
(c) no crepitus.
Medical Assessor Menogue comments that there was no inconsistency. He reviewed the documentation and radiology.
Medical Assessor Menogue considered the assessable injuries were permanent. He found that the claimant injured her left knee in the accident on the basis of the hospital notes. He notes there is no reference to either shoulder or the right knee in the documents from the ambulance and hospital records and that there is a comment in the GP’s notes that Ms Diep’s “knees” and “shoulders” had recovered by 15 July 2020. He was not satisfied that the shoulders and the right knee was injured in the accident.
He diagnosed a soft tissue injury to the neck which he considered on examination and from her history had stabilised.
He had found no evidence of shoulder injury and noted some early complaint of left posterior neck pain but noted that shoulder motion was normal in any event.
He accepted the bony injury to the lateral femoral condyle of the left knee was caused in the accident but not the injury to the right knee.
He assessed the claimant’s neck injury at DRE I – 0% and her left knee at 0%.
Issues for determination
Claimant’s submissions
The claimant’s submissions[7] in support of the review note that the claimant’s car was written off and that ambulance, fire brigade and police attended the scene. The claimant says the accident occurred at between 50 and 70 kms per hour [1.2].
[7] Page 1 of document AD2 (the claimant’s submissions). The references in square brackets are to the paragraph numbers in this document.
The claimant argues:
(a) the Medical Assessor did not appear to have considered a note dated 22 January 2020 in Dr Hua’s records referring pain on sides of neck and shoulders [2.3] and that Dr Hua referred the claimant for physiotherapy to her neck and shoulders [2.4];
(b) the Medical Assessor does not appear to have considered the opinion of Dr Bodel and if he rejected his opinions should have given reasons why [2.8], and
(c) Medical Assessor Menogue incorrectly cited the Nguyen principle saying, “where there is pain in the shoulders in the circumstances of a neck injury, permanent impairment is assessable” [2.17].
Insurer’s submissions
The insurer argues[8] the assessor did have regard to Dr Hua’s notes and made specific reference to it as well as the claimant’s own history, the hospital records and the requests for allied health services when deciding the issue of causation [3].
[8] Page 1, Document AD1 (the insurer’s submissions). The references in square brackets are to the paragraph numbers in this document.
The insurer submits that the Medical Assessor did consider D Bodel’s report but that Dr Bodel gave no reasons for his opinion. The insurer says the current state of the law requires the assessor to deal with an articulated argument and Dr Bodel did not articulate his argument on causation [4].
In relation to the Nguyen principle[9], the insurer cited the case of Donna Bruce v QBE Insurance (Australia) Limited[10] and noted that the Medical Assessor had found full range of movement and therefore there was no impairment to the claimant’s shoulders regardless of whether the Nguyen principle applies [5].
[9] The Nguyen principle is a reference to the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351. In that case, the claimant had injured his neck and had an impairment to shoulder function as a result. The court determined that the shoulder impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[10] [2017] NSWSC 320.
Procedural matters
The Panel met to discuss the Review on 20 October 2022 and issued a report of the meeting and directions to the parties. The parties were advised on the re-examination appointment details and the parties were invited to provide any final submissions.
The Panel identified the following issues to be determined:
(a) cervicothoracic spine – there does not appear to be an issue of causation the issue appears to be whether the claimant’s soft tissue neck injury is to be assessed as DRE I or DRE II;
(b) both shoulders – there appears to be an issue as to causation of a specific or frank injury to both shoulders in the car accident or whether any symptoms in the claimant’s shoulders arise from an injury to Ms Diep’s neck;
(c) left knee – there appears to be an issue as to the degree of impairment but not causation, and
(d) right knee – there appears to be an issue of causation as well as an issue of impairment.
Neither party lodged any additional or further submissions.
Review of the evidence
Claim form and claim documents
The application for personal injury benefits was signed by the claimant as true and correct and dated 14 January 2020[11]. The claimant says she sustained injuries to her chest, stomach, left knee, left leg, head, neck, left rib and right side of back. The Panel notes there is no mention of right knee or either shoulder in this document.
[11] Page 18 of the claimant’s bundle.
The first certificate of capacity / fitness completed by Dr Cung on 16 January 2020 diagnoses a left tibial fracture and a soft tissue injury to the chest. A further certificate dated 22 January 2020 completed by Dr Hua diagnoses “left tibial fracture, soft tissue injury to anterior chest, shoulders, neck, abdominal, shins”. Further certificates dated 5 and 19 February 2020, 13 March, 15 April, 15 May, 15 June, 15 July, 14 August, 14 September, 14 October, 15 November 2020 repeats these injuries[12]. In the certificate dated 14 December 2020, Dr Hua adds post-traumatic stress disorder as an injury[13].
[12] The certificates are found at pages 35, 38, 41, 46, 49, 52, 55, 58, 61, 65, 68, 71, 74, 77 of the claimant’s bundle.
[13] Page 81 of the claimant’s bundle. Similar certificates are dated 11 January (page 84), 11 February (page 91), 10 March (page 94).
The insurer relies on:
(a) Allied health recovery request dated 26 October 2020 requesting physiotherapy for the left knee and neck pain. The Panel notes there is no mention of right knee pain or injury or shoulders in this document.
(b) Allied health recovery request dated 26 October 2021 requesting psychological counselling for post-traumatic stress and chronic pain. This request does not appear to be relevant to the matters in issue before the Panel.
Treating medical records and reports
The records from the Liverpool Hospital[14] records a principal diagnosis of left knee fracture. CT scans were undertaken of the brain, cervical spine, abdomen, pelvis and left knee and CT angiograms of the claimant thorax and carotid artery were undertaken. The Panel notes no radiology was undertaken of the claimant’s right knee or either shoulder.
[14] Three copies have been provided at pages 24, 98 and 133 of the claimant’s bundle.
The claimant was discharged on the basis of non-operative management, to mobilise with two crutches and to follow up with her GP in two to three days.
On admission the hospital records suggest the claimant had a significant seat belt injury and she was experiencing pain in the left knee. The early records[15] indicate a left occipital haematoma.
[15] Page 195 of the claimant’s bundle.
In a referral to Mr Le physiotherapist dated 22 January 2020, Dr Hua refers to the claimant having sustained soft tissue injuries to her “neck /shoulders, anterior chest, abdomen” as well as the fractured knee. In a referral to Mr Nguyen, psychologist dated 14 December 2020, Dr Hua refers to the fractured left knee only noting the claimant had been experiencing flashbacks and increasing anxiety with driving.
The claimant’s medical records from BHT Corporation in Canley Heights have been provided as at 17 March 2021[16]. These records include the following relevant entries:
[16] Page 110 of the claimant’s bundle.
(a) 2 January 2020 – “MVA; L knee crack fracture; bruises lower abdo, chest”. Panadeine Forte was prescribed and a medical certificate given.
(b) 16 January 2020 – “still has pain but less”. Panadeine Forte was prescribed, a left knee X-ray was requested and a medical certificate for the claim form was completed.
(c) 22 January 2022 – this much more comprehensive note goes back to the date of the accident and sets out the circumstances of the claim. There are separate paragraphs or sections of this report and the second of these suggests that in the accident, the claimant had [adopting the formatting, spelling and punctuation of Dr Hua]:
“Sudden onset chest pain at the time, along seatbelt line
Sore occiput at the time, no LOC
Pain on sides of neck and shoulders
Abdo pain along seatbelt
Painful left knee at the time”.
(d) 5 February 2020 – feeling much better today, but still pain on right side chest and left upper anterior chest. Pain left knee but gradually easing. Pain worse on movement and after prolonged use.
(e) 19 February 2020 – pain in chest gradually improving. Pain in left /left knee much better but still painful after prolonged standing / walking. Neck pain and stiffness especially in morning. Having physio and massage to same with good relief. Would lie to resume light duties.
(f) 4 March 2020 – “ongoing pain in neck especially at night. Pain in left knee after prolonged standing / walking”.
(g) 18 March 2020 – the claimant was back at work but after four hours she was experiencing pain and Panadeine forte was prescribed.
(h) 1 April 2020 – ongoing pain in knee and shoulder “pain worse on rainy days”.
(i) 15 April 2020 – intermittent pain in knees (the Panel notes the plural) and neck / shoulder.
(j) 15 May 2020 – the claimant was having physiotherapy, but the pain was much the same. She had tried acupuncture and herbal medicines with some relief.
(k) 15 June 2020 – the claimant reported persistent pain in the neck and left / knee with intermittent pain and swelling in the back of the head. She was having physiotherapy and acupuncture.
(l) 15 July 2020 – the claimant said her pain was “much improved” and she is now about 70% better. She was complaining of pain mainly in her knees / legs [plural] and neck. “Shoulder better now”.
(m) 14 August 2020 – the chest pain returned after carrying groceries and she was experiencing pain in the knees and legs [plural used] after prolonged standing at work. Similar complaints were made on 14 September and 14 October 2020.
(n) 15 November 2020 – Ms Diep reported persistent painful knees [plural] especially on standing and walking and she was still having physio and acupuncture with good relief.
(o) 14 December 2020 the claimant complained of increased leg pain after walking and similar complaints were made on 11 January 2021 after prolonged standing. The claimant reported anxiety and was referred for counselling.
(p) 10 February 2021 – “occasional pain in leg [singular] especially after prolonged standing / kneeling etc”.
(q) 10 March 2021 – “intermittent pain in knee especially on kneeling and prolonged standing. No longer seeing physio but exercising on own at gym.”
Radiology
The CT scan of the claimant’s left knee performed on 29 December 2019[17] while Ms Diep was in hospital found “a small chip fracture” with a small adjacent displaced bone fragment on the articular surface of the femoral condyle with a suspected fracture of the medical aspect of the patella.
[17] Page 174 of the claimant’s bundle.
The CT of the cervical spine while in hospital showed no fractures but “multilevel facet joint degenerative changes most prominent at C4/5 on the right”[18].
[18] Page 172 of the claimant’s bundle.
There is an X-ray of the claimant’s left knee undertaken on 18 January 2020 which noted a “small to moderate sized suprapatellar bursal effusion” but no fracture and mild degenerative change of medical compartment of the left knee joint with a bony fragment on the medical aspect of the patella measuring 7mm.
The Panel notes there is no radiology of the right knee provided or referred to in any of the notes or medical records.
Medico-legal reports
Dr Bodel provided a report to the claimant’s solicitors dated 23 March 2021 after an examination on the same date.
Dr Bodel summarised the injuries as:
(a) injury to the neck with associated headache;
(b) injury to both shoulders;
(c) injury to the centre and left side of the chest wall;
(d) injury to the interscapular region of the thoracic spine, and
(e) injury to both knees.
Dr Bodel records the circumstances of the accident including the claimant’s airbags deploying. He refers to a “closed head injury with a large haematoma formation on the scalp” and an injury to the lower part of her back. He reports the claimant had shortness of breath and pain in both knees the left more than the right. The Panel has reviewed the hospital notes and can find no reference to the size of the occipital haematoma. It is referred to as “L)” in the same way as the claimant’s “L) knee” is identified. The Panel has been unable to find any reference in the hospital notes to lower back pain or injury or any issue with the right knee.
Dr Bodel notes “x-rays revealed a probable fracture of the sternum”. The Panel has reviewed the reports of the x-rays from Liverpool Hospital and cannot find any mention of a “probable fracture of the sternum”. Dr Bodel does refer to the fracture of the femoral condyle in the left knee and notes it is described as a chip fracture which was minimally displaced.
He takes a history from the claimant of her left knee pain continuing to deteriorate with weakness and wasting and episodes of giving way. He notes she has not been referred to a specialist.
Dr Bodel records current complaints of “head, neck and shoulder girdle pain more on the left-hand side, pain [and] stiffness in both shoulders, left worse than right and knee pain aggravated by kneeling, squatting or climbing”.
On examination of her neck, Medical Assessor Bodel noted guarding and tenderness in the trapezius muscles. There was restricted motion in all planes more restricted on extension and rotation to the right (dysmetria). He recorded the claimant’s shoulder measurements[19] and noted mild impingement and tenderness over the rotator cuffs.
[19] Included in the table at paragraph 77 of these reasons.
On examination of the thoracic and lumbar spine there were no abnormalities.
When he examined the knees, he noted “marked retro patellar crepitus in both knees and pain with restricted knee movements (120 degree on flexion in both knees, -5 degrees of extension in each knee).
He assessed WPI at 18% as follows:
(a) Neck – DRE category II based on dysmetria and guarding – 5%;
(b) Lower back – DRE category 1 – 0%;
(c) Left shoulder – 4%;
(d) Right shoulder – 2%;
(e) Left knee – 4%, and
(f) Right knee - 4%.
Re-examination findings
Ms Diep attended the Commission’s medical suite on 7 December 2022. A Vietnamese interpreter was present for the interview and examination.
Pre-accident history
Ms Diep stated that she was born in Vietnam and migrated to Australia in 1980. She lives with her husband and adult children. They have run a family laundry business for the past 20 years. Before the accident, Ms Diep did most of the household chores but played no sports. She says there were no previous accidents or injuries.
History of motor vehicle accident
Ms Diep was a front seat passenger in a car driven by a husband on 28 December 2019. Another car failed to give way and collided with the front of their car. She was wearing a seatbelt at the time and airbags were deployed. Ms Diep stated that she had difficulty getting out of the car and was helped out by the ambulance officer. At that time, she had bruising to her chest and abdomen from the seatbelt with a haematoma on her scalp due to the collision. She was transported to Liverpool Hospital by the ambulance where she remained for two days.
Subsequent history and treatment
At Liverpool Hospital, a painful left knee was noted but the initial X-ray was clear. However, a follow-up CT scan reported a small fracture to the left lateral femoral condyle. This was treated conservatively with a brace and rest. She consulted her GP on 2 January 2020 and he prescribed analgesics and referred her for physiotherapy. Ms Diep stated that she had physiotherapy 24 times for her shoulders, back, arms and legs.
Current symptoms
The main pain at present is in both knees. On the left side there is pain at the back of the left knee which radiates into the calf and occasionally thigh. There was posterior pain behind the right knee which Ms Dias started sometime after the accident, she thinks about a month or so post-accident. The soreness in the knees varies from side to side and increases with prolonged standing or walking up stairs.
Ms Diep described a slight ache in the neck and says she gets a fluctuating pain in the left axillary region and medial clavicle but no symptoms in the right shoulder. She says both her arms are asymptomatic.
At present, Ms Diep is working full-time at the laundry business and does some of the housecleaning with assistance from a daughter. She is able to drive and walks but stated that she is unable to kneel down to pray at her Buddhist temple.
Present treatment
Ms Diep says she takes two Panadol when necessary and has acupuncture and massage to her knees and legs particularly so in colder weather. She also occasionally takes Chinese herbal medicine. She says she is having no treatment for her neck or shoulders.
On examination
Ms Diep walked into the room with a normal gait and sat comfortably during the interview. She states that she is right-handed. Ms Diep is 62 years of age, and her height was measured at 157cm and weight 66kg.
The claimant did not bring any radiological investigations for inspection.
Cervical spine
On testing range of movement, flexion/extension, side bending, and rotation were all 80% of expected range with no asymmetry. On palpation there was no guarding or spasm noted with no tenderness in the cervical musculature.
A neurological examination of the upper limbs revealed all reflexes were present and equal bilaterally with normal power and no sensory changes. There was no muscle wasting apparent with the circumference of the upper arms 25cm bilaterally (10cm above the olecranon process) and in the upper forearms 22cm bilaterally (5cm below the olecranon process).
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement, no crepitus was detected. On palpation there was tenderness over the left acromioclavicular joint and left sternoclavicular joint. There was also tenderness to palpation in the lower axillary region.
Active movement was measured using a goniometer and repeated three times. On testing range of movement, the following measurements were obtained. All measurements are expressed in degrees.
Flexion
Extension
Abduction
Adduction
Internal Rotation
External Rotation
Left
Normal
Bodel
Panel
180
160
180
60
40
60
180
160
180
50
40
60
90
70
90
90
70
90
Right
Normal
Bodel
Panel
180
160
180
60
40
60
180
160
180
50
20
60
90
60
90
90
60
90
Knees
On inspection of the knees no effusion was present with flexion of 120 degrees bilaterally and 0 degrees of extension. The Panel notes that normal is considered 135 to 140 degrees of flexion and 0 degrees of extension.
On palpation, there was tenderness over the medial and lateral joint lines bilaterally and hamstring distal insertions. Straight leg raise was 70 degrees bilaterally and limited by tight hamstrings and some pain in the lower quadriceps muscles bilaterally. On mild pressure on the patella there is some tenderness and slight retro patella crepitus more so on the left knee. No ligament laxity was noted.
There was no muscle wasting apparent in the lower limbs with the circumferences of the lower thighs 42cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 33cm bilaterally.
Head
On palpation there is ill-defined tenderness over the apex of her scalp apparently at the site of the haematoma.
Assessment of IMPAIRMENT
The Panel was asked to assess the injuries that were before Medical Assessor Menogue namely.
(a) cervical spine – neck;
(b) both shoulders, and
(c) both knees.
Cervical spine
The claimant complained of a “slight ache” in the neck. She has symptoms and qualifies for at least a DRE category I impairment.
At the examination with Medical Assessor Moloney, there was no guarding and no dysmetria and none of the other criteria identified in paragraph 15 above were met (no spasm and no non-verifiable radicular symptoms). The Panel is satisfied the claimant does not qualify for a DRE category II impairment.
Medical Assessor Moloney’s examination did not find any of the five signs of radiculopathy which would be required for a DRE ctegory III impairment.
As the claimant has continuing symptoms in her neck, she is to be assessed as DRE category I – 0% WPI.
The Panel notes Dr Bodel, in March 2021, had a history of continuing neck pain. Dr Bodel found the claimant satisfied the criteria for DRE category II on the basis of the presence of guarding and dysmetria. Dr Bodel’s examination occurred almost two years ago. The Panel’s findings reflect the overall improvement in the claimant’s soft tissue neck injuries which the medical members of the Panel note is to be expected with the passage of time.
Left and right shoulders
The Panel notes the claimant complained of “neck /shoulder” complaints from soon after the accident. There has been no radiology undertaken of the shoulders and the claimant’s GP appears to link the shoulder complaints to the claimant’s neck injury.
The Panel is not satisfied that the claimant sustained an actual, specific or frank injury to either shoulder in the accident but is satisfied she may have experienced radiating pain and related restriction of shoulder motion as a result of her neck injury.
Medical Assessor Moloney’s measurements of both Ms Diep’s left and right shoulder movement reveals that her range of motion has improved in the nearly two years since she was assessed by Dr Bodel and that her range of motion is now at the normal range of motion according to the AMA 4 Guides and the Guidelines. Ms Diep therefore no longer has any impairment in her shoulders as a result of any injury to the shoulders or as a consequence of her neck injury.
Left and right knees
Dr Bodel recorded 120 degrees of flexion in both the right and the left knee and minus 5 degrees of extension (flexion contraction) in each knee. Medical Assessor Moloney also recorded 120 degrees of flexion but no loss of extension. This again suggests that the claimant’s knee injuries have progressed towards recovery.
There is an absence of evidence of a frank, specific or actual right knee injury in the hospital notes. The GP notes refer to pain and symptoms in the knees (plural) on 14 April 2020 (more than four months after the accident) but not before then. The claimant gave Medical Assessor Moloney a history of her right knee symptoms developing a month or so after the accident.
On both the history from the claimant and the absence of any contemporaneous reference to a right knee injury, the Panel is not satisfied that the claimant did sustain a direct trauma to the right knee in the accident.
Range of motion method of assessment
Because of Medical Assessor Moloney’s measurements Ms Diep can no longer be assessed as having a mild impairment to her left knee under Table 41 at page 78 of the AMA 4 Guides (which requires less than 110 degrees of flexion and 5-9 degrees of flexion contraction) and therefore she has no impairment to her left knee in accordance with the range of motion method of assessment[20].
[20] Section 3.2e of Chapter 3 at pages 77 to 78 of the AMA 4 Guides.
While the Panel is not satisfied the claimant injured her right knee in the accident, if it had been injured the claimant’s right knee would also attract no impairment percentage on the range of motion method.
Arthritis method of assessment
On the basis that there is an established history of direct trauma to the claimant’s left knee, a complaint of patellofemoral pain and crepitations on examination by Medical Assessor Moloney, the claimant could satisfy the criteria in the note to Table 62 of the AMA 4 Guides and her left knee injury which attracts a whole person impairment of 2%. However, an additional requirement is the absence joint space narrowing on the left knee radiology. The
X-ray of the claimant’s left knee undertaken in January 2020 showed she had joint space narrowing. Therefore, Ms Diep has no left knee impairment in accordance with the arthritis method of assessment[21].
[21] Section 3.2g of Chapter 3 at pages 82 – 83 of the AMA4 Guides.
While there is patella femoral pain in the right knee and crepitation, there is no history of a direct impact on the right knee in the accident. There is also no radiology of the right knee and therefore no evidence of joint narrowing in that knee. Had there been a history of a direct blow to the claimant’s right knee then the right knee could be assessed under the range of motion method and would attract a 2% WPI.
Diagnosis-based estimate method of assessment
The Guides provide[22] for an impairment estimate based on a diagnosis (DRE) rather than a physical examination. Table 64 in the AMA 4 Guides provides a number of estimates for various regions and conditions of the lower limb.
[22] Section 3.2i of Chapter 3 of the AMA4 Guides at pages 84 – 88.
For the left knee, if there is evidence of a patellar fracture, three impairment percentages are offered depending upon the outcome of the fracture.
The original left knee CT scan dated 29 December 2019 showed "irregularity and cortical disruption of the medial aspect of the patella, likely a fracture". The subsequent X-ray taken on 18 January 2020 showed a "well corticated bony fragment on the medial aspect of the patella measuring 7 mm". This is unlikely to be the chip from the femoral condyle which was on the lateral side and represents a patella fracture.
In the absence of recent radiology and in the light of the description of symptoms and the findings on examination, the medical members of the Panel are of the view the claimant should be assessed on the basis she has an undisplaced, healed patella fracture which attracts a 3% WPI.
As there is no evidence of a fracture of the right knee or any injury to the soft tissues in the right knee joint there is no appropriate DRE in respect of that limb and therefore no right knee impairment under the DRE method of assessment.
Conclusion
The claimant’s WPI as assessed by the Panel is as follows:
(a) cervical spine / neck – DRE category I 0%;
(b) left shoulder – no restriction therefore no impairment 0%;
(c) right shoulder – no restriction therefore no impairment 0%;
(d) left knee – Table 64 DRE method of assessment 3%, and
(e) right knee – no injury caused by the accident 0%.
The total WPI is 3% which is less than 10%.
The claimant was involved in a nasty accident and is lucky to have escaped more serious injury. She has also made an excellent recovery from her injuries and has continued to improve since she was assessed by Dr Bodel in March 2021.
While the Panel has arrived at the same result as Medical Assessor Menogue, the Panel has found a different WPI, therefore it follows that Medical Assessor Menogue’s certificate must be revoked.
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