Dincer v QBE Insurance (Australia) Limited
[2025] NSWPICMP 8
•7 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Dincer v QBE Insurance (Australia) Limited [2025] NSWPICMP 8 |
CLAIMANT: | Vahdettin Dincer |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Leslie Barnsley |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 7 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Wijetunga dated 7 May 2024 finding 9% whole person impairment (WPI) for the claimant; claimant suffered injuries to his cervical spine, thoracic spine, lumbar spine and left shoulder in an accident which occurred on 9 April 2019; the claimant had a notable pre-accident history of low back pain and neck pain the Panel was satisfied that there had been a significant aggravation of disability to his cervical spine as a result of the accident; the Panel assessed 5% WPI for the claimant’s cervical spine and 2% WPI for the left shoulder with a combined total of 7% WPI; certificate of MA Wijetunga revoked with new certificate of the Panel for 7% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Wijetunga of 7 May 2024. 2. The Review Panel finds that the claimant has an assessment of 7% whole person impairment for the following injuries: (a) cervical spine 5%, and (b) left shoulder 2%. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by Vahdettin Dincer (the claimant) for review of a certificate of Medical Assessor Wijetunga (the Medical Assessor) dated 7 May 2024. The Medical Assessor determined a whole person impairment (WPI) of 9% for the claimant’s physical injuries.
The Medical Assessor found the following injuries caused by the accident gave rise to a permanent impairment of 9%;
(a) cervical and thoracic spine – whiplash associated disorder involving both cervical and thoracic spine and aggravation of underlying degenerative disease of the cervical spine;
(b) lumbar spine – musculoligamentous sprain of the lumbar spine, and
(c) left shoulder – aggravation of underlying tears of rotator cuff.
This is a dispute between the claimant and the insurer about: the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:
(a) cervical spine – aggravation of pre-existing cervical spondylosis;
(b) thoracic spine – degenerative changes;
(c) lumbar spine – aggravation of lumbar spondylosis, and
(d) left shoulder – complete tear of the subscapularis tendon.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
The accident
The accident occurred on the 9 April 2019 when the claimant was the driver of a car with no other occupants. A truck travelling behind him clipped the right corner of his car which resulted in the car spinning twice and hitting a wall on the right side. The truck driver and other bystanders assisted the claimant. No airbags were deployed but it is not known if the car had these fitted although the ambulance report says they were. The claimant had lacerations on his skull from hitting the roof of the car, and his nose was bleeding.
An ambulance having attended the scene, the claimant was taken to hospital. He was observed at hospital for a few hours without admission.
It is understood that the claimant’s car was written off, for insurance purposes.
Claimant’s submissions
The claimant submits that the following errors are evident in the Medical Assessor’s certificate
Neck
It is the claimant’s submission that the findings of either wasting, or complaints of pins and needles as described, mean that there should have been a diagnosis of diagnosis related estimate (DRE) II, being 5% WPI.
The claimant says that the Medical Assessor found that the claimant’s neck was DRE I – 0% WPI. However, the claimant says that the Medical Assessor specifically noted the existence of wasting in his left dominant arm. The claimant submits that this corresponds to the radiology.
The claimant says that the Medical Assessor also noted that the claimant complained of reduced sensibility over the left arm, left hand and right forearm. She also noted that the claimant was recorded to complain of “pins and needles in the medial aspect of the left arm around the elbow”. The claimant submits that these are non-verifiable radicular complaints. The claimant says that both of those signs are “compatible with specific injury”.
Thoracic spine
The Medical Assessor found that his thoracic spine was DRE I – 0% WPI.
The claimant says that the Medical Assessor also noted that the claimant complained of “pins and needles in the anterior chest”. The claimant says that these are non-verifiable radicular complaints.
The claimant submits that complaints of pins and needles as described, means that there should have been a diagnosis of DRE II, being 5% WPI.
Lumbar spine
The Medical Assessor found that the claimant was in DRE II – 5% WPI.
The claimant says that the Medical Assessor noted that there was guarding and dysmetria, hence the classification of DRE II. However, the claimant says that the Medical Assessor also noted that there was loss of sensation in the L5 vertebra with dermatomal distribution.
The claimant submits that records do not indicate that muscle atrophy was ever measured. The claimant says that without the assessment of muscle atrophy in the legs, the assessment is incomplete.
The claimant submits that the Medical Assessor noted that if there was one more of the indicators then the claimant would have been a DRE III classification.
Left arm
The Medical Assessor said that she determined the level of impairment by comparing the left shoulder impairment with the right shoulder. The claimant says that this was said to be appropriate by the Medical Assessor only because the right shoulder was recorded to be uninjured either before or in the accident. However, the claimant submits that is not the history obtained by the Medical Assessor. The claimant says that the Medical Assessor specifically took the history that the claimant had started to experience pain in the right arm post-accident. In her certificate, she noted that there was a complaint of reduced sensibility over the right forearm.
The claimant submits that clinical notes bear this out. Nerve conduction studies of Dr Dowla on 26 April 2021, report radiation of pain to both shoulders. The claimant submits that the Medical Assessor made no reference to this record.
The claimant submits also that the Medical Assessor found that the right arm had a “less than average joint mobility”. From this, the claimant submits that it was inappropriate for the Medical Assessor to determine the left arm impairment by comparing it to the right arm. The claimant submits that there is the possibility that it has been affected by radicular complaints caused in the accident.
The claimant submits that no reasons are given by the Medical Assessor why these post-accident symptoms should be ignored when using the right arm as a baseline.
The claimant had previously been assessed to determine if he had suffered a threshold injury. On 21 June 2023, a Review Panel revoked a certificate of Medical Assessor Bodel dated 24 May 2022 and determined that the following injuries were caused by the accident were threshold injuries:
(a) cervical spine – aggravation of pre-existing cervical spondylosis, and
(b) lumbar spine – aggravation of lumbar spondylosis.
The Panel also determined the following injury caused by the accident was not a threshold injury:
(a) left shoulder – complete tear of the subscapularis tendon.
The Panel determined that any injury to the thoracic spine was not caused by the accident
Insurers submissions on review application
The insurer summarised the claimant’s grounds of review as follows:
(a) cervical spine: the Medical Assessor should have assessed the claimant’s neck injury as DRE II, not DRE I;
(b) thoracic spine: the Medical Assessor should have assessed the claimant’s thoracic spine injury as DRE II, not DRE I;
(c) lumbar spine: the Medical Assessor did not indicate whether muscle atrophy was ever measured and therefore the assessment is incomplete, and
(d) left arm: the Medical Assessor erred by comparing the left arm to the right arm.
Cervical spine
The insurer submits that the examination findings of the Medical Assessor for this area of injury were correctly assessed as DRE I in accordance with the American Medical Association Guides to the Evaluation of Permanent fourth edition (AMA4) and Part 6 of the Motor Accident Guidelines (the Guidelines).
The insurer noted that whilst there were complaints of intermittent neck pain, there was no muscle spasm, no asymmetrical spinal motion, no verifiable or non-verifiable radicular complaints and no muscle guarding.
The insurer submits there was no error in the Medical Assessor’s DRE I finding and that the medical Assessor clearly articulated the reasons for her finding in her certificate.
Thoracic spine
The insurer referred to the claimant alleging that as he complained of “pins and needles in the anterior chest”, these were non-verifiable radicular complaints and therefore, the diagnosis should have been DRE II. To this assertion the insurer responded and noted that the Medical Assessor recorded the following with respect to his examination:
(a) there was no muscle spasm or guarding of thoracic spine;
(b) there was normal tone, muscle strength in the lower limbs;
(c) there were bilateral symmetrical reflexes of the lower limbs, and
(d) there were no findings on clinical examination.
The insurer submits that the Medical Assessor correctly assessed the claimant as DRE I as the most appropriate impairment category, noting that whilst there were complaints of intermittent upper back pain, there was no muscle spasm, no muscle guarding, symmetrical spinal motion and no verifiable or non-verifiable radicular complaints.
The insurer submits it is clear that the Medical Assessor did not consider that the self-report of pins and needles in the anterior chest was related to any injury of the thoracic spine, or alternatively, not relevant to his assessment of the impairment of the thoracic spine.
The insurer submits there is no error in the Medical Assessor’s clinical opinion that the examination findings most appropriately resulted in a findings of DRE I.
Lumbar spine
The claimant had submitted that, as the certificate did not note that muscle atrophy was measured, the assessment was incomplete.
In response, the insurer submits that the Medical Assessor outlined the claimant’s abnormal atrophy findings in the upper limbs. The insurer says that the fact she did not record any abnormal finding about to the atrophy of the lower limbs is clear that there was no abnormal finding to report.
Left arm
The insurer refers to the claimant’s assertion that the Medical Assessor incorrectly determined the level of impairment of the left shoulder by comparing it with the right shoulder. This was said to be in error as the claimant reported he started to experience right arm pain post-accident and had a reduced sensibility over the right forearm.
The insurer says the Medical Assessor recorded the following in his certificate:
(a) the claimant “confirmed during the examination that his right shoulder was not injured at the time of the accident”.
(b) The claimant reported “reduced sensibility over the medical aspect of his right forearm”. The insurer says that the Medical Assessor confirmed that this was not reproducible and not specific to a dermatomal distribution on examination. Therefore, the insurer says the claimant’s self-report of sensibility was not considered a relevant examination finding.
The insurer says the Medical Assessor confirmed that she assessed that there was no injury to the right shoulder and no apparent cause for the assessed right shoulder stiffness. Consequently, she used the baseline of the assessment of impairment of motion at the uninjured right shoulder and which she assessed at 5% WPI.
The insurer says the Medical Assessor’s reasoning for her determination of 4% WPI for the left shoulder is detailed across pages 16 and 17 of her certificate. In particular, the insurer says that the Medical Assessor stated:
“I have considered impairment on the non-injured right side where there is constitutional stiffness evident at this assessment, in accordance with the methodology set out in Section 1.51 of the motor accident Guidelines. There is a reasonable expectation that the range of motion on the injured side would have been similar to that now evident on the non-injured side prior to the accident. There has been no injury on the non-injured right side. No other apparent cause for the right shoulder stiffness is evident from my review of his history or the medical file…
If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.
I am satisfied that, based on the examination findings and the claimant’s history, there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.
I am further satisfied that the contralateral joint has less than average mobility.
The residual impairment arising from the injury equals 6% UEI. Using table 3, page 20, a 6% UEI converts to a 4% WPI.”
Insurers submissions for WPI assessment
Cervical spine
An MRI of the cervical spine conducted on 29 November 2017 revealed a left C6/7 disc osteophyte impinging left C7 nerve root. This was 17 months before the accident.
An X-ray and CT scan of the cervical spine dated 9 July 2019 noted multilevel degenerative disc changes, particularly at C6/7 and multilevel foraminal stenosis. This imaging was taken three months after the accident. The insurer says that these changes were degenerative in nature, and no acute pathology was noted.
On 12 August 2019, Dr Raymond, orthopaedic surgeon, diagnosed the claimant with a whiplash associated disorder Grade II, having found no neurological signs on assessment. The claimant attended for subsequent reviews on 23 September 2019 and 4 November 2019. The diagnosis remained the same.
An X-ray of the cervical spine performed on 22 August 2019 found intervertebral disc narrowing with anterior osteophytosis most pronounced at C6/7, and posterolateral osteophytosis on the left most pronounced at C6/7. An MRI performed on 10 July 2020 showed high grade left foraminal stenosis C6/7 secondary to disc osteophyte change, which may have been compressing the exiting left C7 nerve root.
The insurer submits that both radiological scans show a progression of pre-existing pathology which is degenerative in nature and unrelated to the accident.
On 19 August 2020, Dr Needham, rehabilitation physician, recorded the claimant’s complaints of “moderate lower back pain and neck pain particular in region of left sided suboccipital area”. Dr Needham, on viewing the radiological imaging, said that the claimant’s symptoms did not correspond with a left C7 nerve root compression. Rather, the suboccipital pain symptoms correlated highly with the localised advanced left C2/3 facet arthropathy, which the insurer submits was not caused by the accident.
Dr Bosanquet recorded that the claimant had “aggravated pre-existing degenerative changes… [which] will cease, but he will need to have continuing treatment for the pre-existing changes”. He found that the claimant had DRE Cervical Category II changes to his cervical spine prior to the subject accident. Once the pre-existing changes were deducted, he assessed the claimant at 0% WPI caused by the accident.
The insurer submits that cervical spine pathology seen in the radiological imaging was not caused by an acute injury sustained in the accident, but rather was a longstanding and chronic issue which was already present at the time of the motor accident.
Thoracic spine
An MRI of the thoracic spine dated 6 January 2018 showed “thoracic spine degenerative changes without evidence of neural impingement nor canal stenosis. Facet joint arthrosis most marked T6/7 on the left side. Minimal costovertebral degenerative wear.”
The insurer submits there is no objective medical evidence of any thoracic spine injury caused by the subject accident. The insurer says the thoracic spine pathology was pre-existing and age-related and was therefore not caused by an acute injury sustained in the motor accident.
Lumbar spine
The insurer says an MRI of the lumbar spine dated 6 January 2018, 15 months before the accident, found the following:
“Degenerative disc disease without definite neural impingement or canal stenosis. Disc bulging at L2/3, L3/4, L4/5 and L5/S1 with extension into the neural exit foramina at these levels abutting the exiting L2, L3, L4 and L5 nerves. The changes are similar bilaterally. There is facet joint arthrosis with synovitis noted throughout the lumbar spine.”
An X-ray and CT scan of the lumbar spine dated 9 July 2019 noted the presence of degenerative changes, foraminal stenoses which appeared most marked at L3/4 and L4/5 accentuated by small retrolisthesis.
An X-ray of the lumbar spine dated 22 August 2019 showed intervertebral disc narrowing with anterior osteophytosis seen from L2 to S1.
An MRI performed on 10 July 2020 showed multilevel disc bulging within the lumbar spine, but no neural compromise.
Dr Bosanquet found that prior to the accident, the claimant had changes to his lumbar spine equivalent to DRE Lumbosacral Category II (5% WPI). Once deductions for pre-existing impairment were made, Dr Bosanquet assessed the claimant as having suffered 0% WPI as a result of the subject accident.
The insurer submits that lumbar spine pathology seen in the radiological imaging was not caused by an acute injury sustained in the accident, but rather was a longstanding and chronic issue which was already present at the time of the motor accident.
Left shoulder
An ultrasound of the left shoulder on 9 March 2015 revealed:
(a) subscapularis and biceps tear, and
(b) supraspinatus tendinosis, subacromial bursitis capsulitis.
Another ultrasound of the left shoulder conducted on 22 August 2019 found “chronic appearing complete tears of subscapularis and long head of biceps” as well as tendinosis and bursitis. It also showed degenerative osteoarthritis at the acromio-clavicular joint.
The insurer says that this ultrasound shows the same pathology, albeit a natural progression from the 2015 ultrasound.
Dr Dowla, neurologist, in a report dated 26 April 2021 recorded complaints of neck pain rating to the shoulders, particularly to the left with an occipital headache. Dr Dowla recorded that the muscle tone, power and reflexes were both normal and symmetrical.
The insurer says that Dr Bosanquet found that the claimant had full extension, adduction and rotation of the left shoulder. There was pain at 160° of abduction and forward flexion, and his biceps were ruptured on the left. He had full movement of his left wrist, elbow and fingers.
Dr Bosanquet assessed the claimant to have 0% WPI once pre-existing degenerative changes, calculated at 1% WPI, were deducted.
The insurer submits that left shoulder pathology seen in the radiological imaging was not caused by an acute injury sustained in the accident, but rather was a longstanding and chronic issue which was already present at the time of the motor accident.
The insurer maintains that any injury causally related to the subject motor vehicle accident does not result in a permanent impairment which exceeds the 10% threshold.
Medical evidence
Both Blacktown Family Medical Centre and the ambulance report record prior symptoms of neck, back and shoulder complaints by the claimant. The general practitioner (GP) clinical notes record complaints about the claimant’s left hip. The claimant was treated by various GP’s including Dr Capa and Dr Hussain.
The ambulance report in April 2019 recorded that the claimant denied cervical spine pain. He complained of pain in left clavicle and shoulder with intermittent numbness to left arm. It was recorded by the attending ambulance officer that the claimant had a pre-accident history of these complaints over past weeks before the accident.
Dr Wallace, orthopaedic surgeon, provided three treating reports dated four 12 August 2019, 23 September 2019 and 4 November 2019. He diagnosed whiplash associated disorder and found no neurological signs. The diagnosis remained unchanged over the course of all three examinations.
Dr Needham, rehabilitation physician, provided a report of 19 August 2020. He referred to and discussed changes at the C2/3 level which he said corresponded to the suboccipital area but he noted that the claimant’s symptoms did not correspond to left C7 nerve root compression.
Dr Bosanquet reported that the claimant had aggravated pre-existing degenerative changes and assessed DRE Category II for the cervical spine. He found that prior to the accident, the claimant had changes which most probably related to DRE Category II but he was assessed at that time with DRE Category I, which equated to an assessment of 0% WPI. Dr Bosanquet found full extension, adduction, and rotation of the left shoulder and pain at 160° of abduction.
Dr Dowla, neurologist, provided a report of 26 April 2021 noting complaints of neck pain radiating to the shoulders.
The claimant was examined by Dr Porteous on 25 January 2023 on his behalf. Dr Porteous reported that there had been a disruption of the cervical C6/7 nerve root, resulting in increased symptoms at the left shoulder and arm, and consistent with a degree of irritation in the nerve root, likely at C7.
The Medical Assessor noted that the claimant acknowledged a past history of left shoulder pain, but he reported that this was not troublesome for a few years prior to the subject accident. The Medical Assessor noted that this was confirmed by the claimant’s progress notes from Blacktown Medical Centre.
The Medical Assessor concluded that the subject accident was reasonably significant in that his car was written off, following a truck hitting the back of his vehicle, and thereafter he was taken to hospital. The Medical Assessor said that the mechanism of the accident was clinically consistent with pain in the cervical, and upper thoracic, lower back and left shoulder.
The Medical Assessor said that the mechanism of his vehicle being spun around most probably impacted on resistance of the steering wheel on his left shoulder. The claimant’s previous ultrasound on 9 March 2015 demonstrated a subscapularis and biceps tear. The Medical Assessor said that these most probably became chronic. The more recent ultrasound of the left shoulder suggested complete tears of the subscapularis and long head of biceps. The Medical Assessor said that it was plausible that the subject accident aggravated this, such that there was a progression of his tears. The diagnosis was an aggravation of underlying tears of the rotator cuff.
The Medical Assessor assessed WPI at 9% as follows:
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current
%WPI*
%WPI* from pre-existing OR
subsequent causes
%WPI* due to motor accident
1
Cervical spine
AMA 4,
Chapter 3,Page 103.
Yes
0
0
0
2
Thoracic spine
AMA 4,
Chapter 3,Page 106.
Yes
0
0
0
3
Lumbar spine
AMA 4,
Chapter 3,Page 102.
Section 6.138 of the SIRA
Guidelines, October 2021,
Page 112Yes
5
0
5
4
Left shoulder
figures 38, 41 and 44 AMA 4, pages 43, 44 and 45,
Section 1.51 of the SIRA Guidelines
(1 June 2018)Yes
4
0
4
Medical examination
The claimant was examined by Medical Assessor Barnsley and Medical Assessor Dixon on 25 November 2024. Their report follows.
“This 68 year old claimant attended with a Turkish interpreter Mr. Mahmut Aguzhan, NAATI No CPN01045F for review of:
1.Cervicothoracic spine;
2.Lumbar spine;
3.Left shoulder.
History of the motor vehicle accident
The claimant was driving an automatic 2004 BMW hatchback when he was clipped on the right corner of his vehicle in the M5 tunnel when his vehicle spun 180 degrees and hit the wall of the tunnel, causing damage to the driver's side door which was illustrated by the claimant on his mobile phone. He was wearing a seat belt. The airbags did not deploy and he was helped from the vehicle by the truck driver. He had lacerations to his head from hitting the roof of the car and he had a nose bleed. He was not knocked unconscious. He was taken by ambulance to Royal Prince Alfred Hospital.
Treatment following the MVA
He was supplied with a neck brace and after observation and x-rays, was discharged to the care of his doctor. Over the next few days, he complained of severe headache and intermittent nose bleeds and he had physiotherapy without sustained benefit.
He developed increasing pain in his neck and had difficulty sleeping on his left shoulder due to pain in his lower back. He was referred to a neurologist as he had paraesthesia in his hands and subsequently had nerve conduction studies which confirmed bilateral carpal tunnel syndrome.
He developed PTSD and has had psychiatric review and psychological counselling.
He had no further injuries since the subject motor vehicle accident but did have open heart surgery in 2023.
Current symptoms
He reports pain and stiffness in his neck with radiation towards the upper thoracic region and into his left arm with paraesthesia down the medial aspect of the left arm and forearm towards the little and ring finger. He reports his neck pain disturbs his sleep.
He reports pain in his lower back with lumbar stiffness with pain mainly in the left paralumbar region extending through the thigh to his left calf medially with paraesthesia down the medial thigh and calf. He did report that prior to the subject accident he had mid lower back pain with some radiation to the left leg but not as severe as following the subject motor vehicle accident.
He reported pain in the left shoulder in the region of the trapezius muscle and anterior deltoid with difficulty elevating the arm and difficulty sleeping on that side due to shoulder pain.
Past health
His past health includes hypertension, raised cholesterol and osteoarthritis in his back and a history of anxiety and depressive disorder and type 2 diabetes.
Social History
He lives at home with his wife but has difficulty doing heavy household cleaning chores, standing to assist with meal preparation, cooking, washing up and bed making, and he has difficulty doing the garden and lawns and cleaning the car and no longer drives and does not play sport. He has difficulty putting on his shoes and socks and doing his toenails.
Examination
On examination on 25 November 2024, he was 165cm tall and weighed 65 kg.
There was stiffness of his cervical spine with flexion and extension decreased by one half and lateral rotation was decreased by one quarter to the right and one half to the left and lateral flexion decreased by one third bilaterally. There was no erector spinae muscle or trapezial muscle spasm. There was tenderness of the trapezius muscle on the left. His brachial plexus stretch test appeared negative and there was no tenderness of the supraclavicular brachial plexuses.
His reflexes were present and symmetrical in both upper extremities. There was no wasting of the arms, 10cm above the elbow crease which measured 30cm and 10cm below the elbow crease, both forearms measured 25cm. His thenar power, intrinsic power and grip strength were grade 5 out of 5 bilaterally. There was sensory alteration in the middle and little fingers of his left hand and variable sensory loss down the left medial upper extremity.
There was stiffness on elevation of his left shoulder with forward flexion 60 degrees/60, active abduction 60 degrees/50, adduction 20 degrees/10, extension 30 degrees/30, external rotation 70 degrees/70 and internal rotation was 90 degrees/70 on repeat testing. Shoulder girdle power on the left was grade 4 out of 5 There was tenderness of the trapezius and posterolateral deltoid. There was no wasting of the spinati muscles or winging of the scapula on the left.
Range of motion testing of the right shoulder showed forward flexion of 100 degrees/90, extension 40 degrees/50, adduction 20 degrees/20, abduction 75 degrees/60, external rotation 60 degrees/60, internal rotation 70 degrees/80 on repeat testing. Shoulder girdle power was grade 4 plus out of 5 on the right and there was no wasting of the spinati muscles. There was no tenderness of the trapezius muscle nor of the bicipital groove.
There were no tender areas in the thoracic spine today and trunk rotation was equal to both sides and decreased by one third. There was normal sensation to light touch over all thoracic dermatomes.
The lumbar spine showed lumbar stiffness with flexion and extension decreased by one third and lateral flexion decreased by one third to the left and to the right. There was no erector spinae muscle spasm. In the lumbar spine there was some tenderness of the left paralumbar region. His straight raise on the left was 50 degrees and associated low back pain. His sciatic nerve root stretch test was negative. His straight leg raise on the right was 60 degrees and associated with low back pain. His sciatic nerve root stretch tests were negative. His reflexes were symmetrically present in his lower extremities and his plantar responses were negative. Power was grade 5 out of 5. There was variable sensory loss in his left lower extremity which he reported was on the medial thigh and leg.
His normal gait was slow with a slight limp on the left and he had difficulty with toe walking and heel walking and toe standing due to back pain. His squat test was associated low back pain. There was no wasting of either lower extremity measuring 43cm bilaterally, 10cm above the superior pole of the patella and 36cm for each calf.
Investigations
His investigations include a CT and x-rays of the cervical and lumbar spine on 9 July 2019, three months after the subject accident, which showed multilevel degenerative disc changes, particularly at C6/7 with multilevel foraminal stenosis. The vertebral body heights were maintained.
The lumbosacral spine showed degenerative changes with foraminal stenosis, most marked at L3/4 and L4/5, accentuated by small retrolisthesis.
MRI of the cervical and lumbar spine on 10 July 2020 showed advanced facet arthropathy on the left at C2/3, mild disc bulge at C5/6 and C6/7 disc osteophyte changes more marked on the left which contributed to severe left foraminal stenosis and minimal spinal canal narrowing. The spinal cord appeared normal.
The MRI of the lumbar spine showed moderate disc bulge at L2/3 and moderate disc bulge at L3/4 extending into the neural foramina and at L4/5 moderate disc bulging with shallow right paracentral to foraminal disc protrusion and mild right foraminal stenosis and at L5/S1 minor disc bulge.
MRI of the thoracic and lumbar spine on 6 January 2018 showed degenerative changes in the thoracic spine with facet joint arthritis most marked at T6/7 on the left and disc bulge at T11/12 in the lumbar spine. There was degenerative disease without definite neural impingement or canal stenosis. The exiting nerve roots of L2 to L5 do abut the discs/endplate osteophyte complex in the foramina in the inferolateral position without evidence of neural impingement. The radiologist suggested nerve conduction studies.
The nerve conduction studies that were available were conducted on 3 August 2021 of both upper extremities which showed bilateral median nerve slowing of the wrist, compatible with carpal tunnel syndrome.
Ultrasound of the left shoulder on 9 March 2015 showed subscapularis and biceps tear and supraspinatus tendinosis with subacromial bursitis and capsulitis which was done almost four years before the subject motor vehicle accident.
Ultrasound of the left shoulder done on 22 August 2018 showed complete tears of the subscapularis and long head of the biceps and tendinosis and bursitis. There was AC joint marginal osteophytosis.
X-ray of the cervical and lumbar spine on 22 August 2019 showed intervertebral disc narrowing with anterior osteophytosis most pronounced at C6/7 and posterolateral osteophytosis, severe on the left most pronounced at C6/7.
X-ray of the lumbar spine showed intervertebral disc space narrowing of anterior osteophytosis from L2 to S1. The vertebral body heights were maintained.
Summary
In summary this claimant was involved in a severe motor vehicle accident when his BMW was rear ended by a truck and spun 180 degrees.
His diagnoses are:
1.Whiplash injury to his neck with some radiation to the upper thoracic spine. Overall, there was whiplash to his neck with dysmetria on neck rotation to the left and a description of sensory alteration that fits with aggravation of left sided C6/7 foraminal stenosis without radiculopathy;
2.Low back strain injury with radicular complaint with variable sensory changes in the left lower extremity without radiculopathy;
3.Post traumatic stiffness of the left shoulder with significant pre-existing conditions of tear of the rotator cuff in 2015 and left rotator cuff injuries on MRI on 17 March 2017.
4.The Panel found no evidence of assessable thoracic injury on examination.
There is variable range of motion to his left shoulder compared with those of the Medical Assessor, in her certificate dated 7 May 2024, with some mention of prior neck pain in the clinical notes of the Blacktown Medical Centre in the insurers bundle of documents, which the claimant reported there had been significant increase in neck pain and stiffness and radicular complaint in his left arm.
The lumbar spine showed no dysmetria today nor spasm nor variable radicular complaint since the background of chronic low back pain reported on 30 March 2017 by Dr Capa and Dr Hussain, who saw him on 21 December 2017, noting low back pain with radiation to the left calf and cervical radiculopathy. Dr Capa reiterated the problem of chronic low back pain and consultation on the same day with complaints of back and neck pain, also noted in consultation on 13 February 2018 and 6 December 2018.
While the claimant had a well-documented history of chronic low back pain and neck pain, it does appear there has been significant aggravation of his left C6/7 foraminal stenosis in the subject accident with dysmetria, which would achieve an impairment of DRE II of 5% WPI. Because of the inconsistency with shoulder motion, the existence of previous rotator cuff tears prior to the subject accident, it is probable the claimant aggravated AC arthrosis with resultant impairment given on mild crepitus arising from the AC joints which from Table 19, page 59 is 10% joint impairment which, from table 18 for the AC joint, is 2.5 upper extremity impairment which rounds off to 3% upper extremity impairment which gives 2% whole person impairment.
That for the lumbar spine where he has post traumatic stiffness without dysmetria and non-verifiable radicular complaint with no radiculopathy is from Table 72, Page 110, DRE I, 0% WPI.
He has reached maximum medical improvement.
There were no symptomatic pre-existing conditions in the lower back.
This gives a total from the Combined Values Chart of 7% whole person impairment.
He has reached maximum medical improvement.”
The Panel adopts the findings of Medical Assessor Barnsley and Medical Assessor Dixon.
Causation
The claimant was involved in an accident which was sudden, unexpected and one involving a degree of force, causing his car to spin twice and to ultimately come to a stop when it hit a wall.
The car was written off for insurance purposes.
The Panel is of the opinion that in the circumstances of the accident in which the claimant was involved, and for the reasons discussed in the medical examination report, it would be reasonable to accept that he might suffer injuries to his cervical spine, his lumbar spine and his left shoulder
Reasons
The claimant was involved in an accident which was sudden and unexpected and likely to have caused the claimant a jolting impact.
For the reasons set out in the report of Medical Assessor Dixon and Medical Assessor Barnsley, the Panel is satisfied that the accident has had a more than negligible effect on the claimant's cervical spine, and left shoulder. The Panel is satisfied that the injuries suffered by the claimant would have arisen in the circumstances of the accident to which the claimant was exposed. The claimant had a pre-existing condition of his neck and back but the accident has exacerbated his neck condition. On examination, the Panel made different observations regarding his back to those findings of the Medical Assessor.
The Panel is not satisfied that there was a direct injury arising out of the accident to the claimant’s thoracic spine. The claimant did suffer a whiplash injury to his neck with some radiation only to the upper thoracic spine.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Wijetunga of 7 May 2024.
The Panel finds that the claimant has an assessment of 7% wpi for the following injuries:
(a) cervical spine – 5%, and
(b) left shoulder – 2%.
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