Djekic v AAI Limited t/as GIO
[2023] NSWPICMP 211
•16 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Djekic v AAI Limited t/as GIO [2023] NSWPICMP 211 |
| CLAIMANT: | Irena Djekic |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Rhys Gray |
| DATE OF DECISION: | 16 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 10 September 2019 in a T-bone collision; the dispute related to the assessment of permanent impairment; claimant re-examined; frank injury to shoulders not established; claimant had referred pain providing loss of movement; range of movement not a valid measurement of impairment given inconsistency observed in reports; Panel satisfied that transverse fractures sustained in the motor accident; not assessed unless there is displacement; clause 6.149 of the SIRA Motor Accidents Guidelines (Version 9.1, commencement on 1 April 2023); Held – original assessment revoked. |
| DETERMINATIONS MADE: | MEDICAL ASSESSMENT – PERMANENT IMPAIRMENT WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The Panel revokes the certificate dated 16 October 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: (a) fractures of the transverse processes at L2, L3 and L4; (b) left hip; (c) cervical spine, and (d) left and right shoulder (referred loss of movement). |
REASONS
BACKGROUND
Ms Irena Djekic (the claimant) suffered injury on 10 September 2019 when her vehicle was crossing an intersection and involved in a T-bone collision with the insured vehicle.[1]
[1] Claimant’s bundle, p 21.
AAI Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Djekic any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute is whether Ms Djekic’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The following injuries were referred for assessment:
• lumbar spine / lumbosacral – fractures through the left transverse processes;
• cervical spine / cervicothoracic – general restriction of movement in the cervical spine as well as pain and pins/needles radiating down upper limbs;
• left upper extremity (left shoulder) rotator cuff/soft tissue injury or alternatively restriction of movement consequential or neck/cervical spine injury assessable under Nguyen principle;
• right upper extremity (right shoulder) rotator cuff/soft tissue injury or alternatively restriction of movement consequential or neck/cervical spine injury assessable under Nguyen principle, and
• left hip/lower extremity – soft tissue injury, pain and restriction down left lower limb.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Woo and dated 16 October 2022. The Medical Assessor assessed the degree of permanent impairment at 5%. The details of that assessment are set out later in these Reasons.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were 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.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The Panel issued the following Direction:
“1. The Panel requires the parties to file and serve the following documents:
(a)Records of general practitioners (including Dr Tomko, Dr Khan and Dr Pope) for the period from two years prior to the accident to date;
(b)Records of any physiotherapist or similar treatment for the period from two years prior to the accident to date;
(c)Ambulance records for the motor accident;
(d)Hospital notes post motor accident (these documents were referred to in the insurer’s submissions but not attached to the filed bundles).
2. The parties are directed to discuss how and when the bundle will be prepared. In the absence of agreement and the filing of the materials by 31 March 2023, the parties are to list the matter before myself.
3. The Panel notes the submissions on the cause of the transverse fractures at L2, L3 and/or L4. If the Panel finds that the motor accident caused at least one of the fractures, is it agreed that the lumbar spine is assessed at DRE category II (see Table 6.7 and cl 6.149 of the Motor Accident Guidelines). A joint response is required by 31 March 2023.”
The claimant responded:
“1. Documents:
a. The records of GPs for the 2 years before the subject MVA can be found:
i. Dr Khan at A16, A28 and RPI10,
ii. Dr Pope (Fairfield medical centre) at RPI9
iii. Dr Tomka – we do not have these records.
b. Physio/exercise physiologist records at A30 and A32
c. We do not have these records and understand the insurer has obtained these records. If the insurer has these records, we ask they be provided.
d. We do not have hospital records and understand the insurer has obtained these records. If the insurer has these records, we ask they be provided.
2. Noted and the insurer’s solicitors have been copied into this message.
3. The Applicant concedes the lumbar spine is at least DRE category II, unless the assessor finds radiculopathy on examination or other factors which warrant a higher DRE category finding.”
The insurer advised that it did not have the material save as to the ambulance notes. In relation to the paragraph 3, the insurer submitted:
“Otherwise the insurer does not agree that the type of fracture would automatically give rise to this level of impairment rating, as the panel needs to be satisfied that there has been a fracture ‘with displacement of fragment.’ A transverse or spinous process fracture alone would therefore not satisfy this criterion. The insurer refers to Table 6.7 of the Guidelines in this respect, and page 102 of AMA4 in this regard.”
On the day of the examination the insurer filed a bundle of documents and further submissions without leave and without any prior notice given to the claimant. The documents were filed so late that the Medical Assessor undertaking the examination was unaware of the further material.
The further submissions raised issues of credibility, some of which were repeated elsewhere (such as inconsistency in movement) while other portions raised new issues. The submissions raise new issues not covered by evidence whilst seeking to be a medical submission. An example of this was that physiotherapy cannot aggravate a soft tissue injury.
The claimant objected to the material.
The insurer otherwise did not comply with our first direction dated 6 February 2023 concerning the admissibility of further material. It proffered no explanation why it acted late.
We reject the evidence save as to the ambulance report which was requested by the Panel.
The Panel has concluded that the claimant is below the threshold for non-economic damages apart from consideration of the further material. We do not intend to delay the matter further when these Reasons are only binding on the medical dispute before us: Owen v Motor Accidents Authority;[9] Allianz Australia Insurance Ltd v Girgis;[10] Brown v Lewis[11] and Pham v Shui.[12]
[9] [2012] NSWSC 650.
[10] [2011] NSWSC 1424.
[11] [2006] NSWCA 587.
[12] [2006] NSWCA 373.
STATUTORY PROVISIONS
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13]
ASSESSMENT UNDER REVIEW
[13] See s 3B(2) of the Civil Liability Act 2002.
Medical Assessor Woo provided a medical assessment dated 16 October 2022. The Medical Assessor found that the claimant sustained fractures of the transverse processes at L2, L3 and L4 which had healed and were stable, neck symptoms without clinical signs and normal range of movement of the left hip.
The Medical Assessor held that there was no rotator cuff tear to either shoulder and that any restriction of movement of either shoulder was pre-existing.
The Medical Assessor assessed the lumbar spine at 5% with no other assessable impairments.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The clinical notes refer to bilateral shoulder pain in 2015 and in 2016 to the right shoulder and both hips. Neck pain was also mentioned in August 2016.
The claimant sustained injuries in a previous motor accident on 1 March 2017.
A CT scan of the cervical spine dated 4 May 2017 showed only minor endplate osteophytic lipping and no canal stenosis or foraminal stenosis.[14]
[14] Claimant’s bundle, p 111.
In a report dated 8 May 2017 Dr Herald, orthopaedic surgeon, diagnosed bilateral rotator cuff tears, whiplash injury to the cervical spine with ride-sided radiculopathy and lumbar spine injury.[15] In a further report dated 24 July 2017 Dr Herald opined that the majority of the radiating pain into the shoulders was coming from the neck.[16]
[15] Claimant’s bundle, p 72.
[16] Claimant’s bundle, p 73.
An MRI scan of the cervical spine and left shoulder dated 18 May 2017 showed mild cervical spondylotic changes and a small AC joint effusion with tendinosis at the long head of the biceps.[17]
[17] Claimant’s bundle, p 119.
An MRI scan of the right shoulder dated 19 May 2017 showed no cuff tear, bursal inflammation and mild AC joint arthroplasty.[18] The MRI scan of the lumbar spine of the same date showed no fracture of dislocation and was described as a normal study with no evidence of traumatic injury.[19]
[18] Claimant’s bundle, p 120.
[19] Claimant’s bundle, p 119.
Dr Michael Donnellan, neurosurgeon provided a report dated 17 May 2017. The doctor noted back pain, and neck pain radiating to both shoulders with complaints of paraesthesia in the right hand.[20]
[20] Claimant’s bundle, p 69.
In August 2017 Dr Donnellan noted that the scans of the spine did not show neural impingement and recommended a bone scan.[21]
[21] Claimant’s bundle, p 71.
A bone scan dated 7 September 2017 showed multilevel cervical and lumbar discovertebral arthroplasty with degeneration.[22]
[22] Claimant’s bundle, p 110.
The treating notes of the general in 2017 refer to back and neck problems with radiating symptoms to the extremities.[23]
[23] Claimant’s bundle, pp 122-135.
A report by Dr Simone Ryan, physician dated 9 November 2017[24] noted that the claimant was pain focused and “in a pained like state”. The doctor opined that the accident had triggered “generalised spinal pain” in the cervical and lumbar regions and referred pain through the shoulders.
Contemporaneous records
[24] Insurer’s bundle, p 289.
Relevant contemporaneous records were requested but have not been placed before the Panel. However, the ambulance report is referred to by the Medical Assessor in the examination report.
Clinical records
The certificate of capacity by Dr Khan dated 30 September 2019 refers to mechanical neck pain, transverse fractures at L2, L3 and L4 and “seatbelt restraint injuries” to the chest.[25]
[25] Claimant’s bundle, p 14.
Follow up review by the general practitioner on 21 October 2019, 2 December 2019, 24 February 2020, 30 March 2020, 11 May 2020, 1 July 2020, 12 August 2020, 14 September 2020, 21 October 2020, 2 December 2020, 27 January 2021, 3 March 2021, 7 April 2021, 12 May 2021 and 16 June 2021 noted neck pain towards the thoracic spine and both shoulders, chest pain cross the sternum and lower back pain radiating the S1 joint.[26]
[26] Claimant’s bundle, p 190, p 195, p 205, p 210, p 215, p 220, p 225, p 230, p 235, p 240, p 244, p 248, p 252, p 256 and p 260.
Allied health recovery reports prepared by the exercise physiologist referred to pain in the neck, chest, back, legs and upper limbs.[27]
[27] Claimant’s bundle, p 278.
Claim form
The claim form dated 1 October 2019 refers to the motor accident and describes the injuries as:[28]
·spine – fracture through left transverse process of L2, L3 and L4;
·chest – seatbelt injuries;
·neck – pain, and
·shoulders – pain.
[28] Claimant’s bundle, p 21.
Specialist treating records
Dr Anil Nair, surgeon provided a report dated 16 October 2019.[29] The doctor opined that the claimant suffered transverse fractures at L2 and L3 on the left with ongoing left-sided lumbar pain. In a further report dated 27 February 2020 Dr Nair opined that the claimant suffered fractures to the transverse fractures at L2 to L4 and an L5/S1 facet joint injury.[30]
[29] Claimant’s bundle, p 88.
[30] Claimant’s bundle, p 90.
Radiology
A CT scan of the lumbar spine dated 23 September 2019 showed multi-level degenerative changes with no foraminal nerve root compression.[31] There were fractures through the left transverse processes at L2, L3 and L4.
[31] Claimant’s bundle, p 78.
A CT scan of the cervical spine dated 23 September 2019 showed minor spondylosis with no bony canal stenosis or foraminal stenosis.[32]
[32] Claimant’s bundle, p 79.
A repeat CT scan of the lumbar spine dated 9 November 2019 showed the left transverse fractures with no canal stenosis or thecal sac compression.[33]
[33] Claimant’s bundle, p 115.
A repeat CT scan of the lumbosacral spine dated 20 February 2020 showed healing of the left transverse process at L2 suggesting union is complete and ossicles at the distal tip of the left transverse processes of L3 and L4 which are well corticated and represent avulsion injuries from the distant past.[34]
[34] Claimant’s bundle, p 116.
Qualified opinions
Dr Yuk Kai Lee, orthopaedic surgeon, was qualified by the claimant and provided a report dated 18 February 2022[35] following a consultation undertaken through Telehealth. The doctor obtained a history that the claimant received a neck injury in the 2017 motor accident which recovered after one year.
[35] Claimant’s bundle, p 58.
Dr Lee opined that the motor accident caused a soft tissue injury to the neck with persistent neck pain and radiating pain to the shoulders, worse on the left and fractures to the transverse processes from L2 to L4. The doctor also opined that the motor accident “may also have injured the rotator cuff of her shoulders … especially on the left side.” The doctor provided an overall combined assessment of 22%.
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 24 March 2022.[36] The doctor noted that ambulance and hospital records were not available for review.
[36] Insurer’s bundle, p 32.
Associate Professor Shatwell reviewed the scans and noted that age of the fractures was unclear and there was early callus formation (sign of healing) at the L2 transverse fracture. There was no swelling at the site of the fractures in the left psoas muscle.
The claimant repeated her history that symptoms for the prior accident settled after a year. Associate Professor Shatwell opined:[37]
“Ms Djekic may have sustained transverse process fractures of L2, L3 and L4 in the accident in question. There was no documentation of injury to her shoulders. The injury to her neck did not cause any soft tissue abnormalities according to the CT scan of 23 September 2019 and I would have expected improvement with the passage of time.”
[37] Insurer’s bundle, p 41.
The doctor otherwise opined that there was insufficient information “to be absolutely sure Ms Djekic sustained fractures of the transverse processes of L2, L3 and L4.”
Accident records
The police report referred to the motor accident when the insured vehicle collided with the front passenger door of the claimant’s vehicle.[38] The claimant was able to exit her vehicle.
[38] Insurer’s bundle, p 3.
Statement
The claimant provided a short statement dated 1 October 2020.[39] Ms Djekic referred to the collision at considerable speed and the considerable damage caused to her vehicle.
[39] Claimant’s bundle, p 8.
Ms Djekic stated that she consulted Dr Ijaz Khan and Dr Anil Nair for the injuries sustained in the motor accident. The photograph attached to the statement shows considerable damage to the front passenger door.[40]
[40] Claimant’s bundle, p 13.
The claimant provided a further statement dated 22 August 2022.[41] It was noted that only the left hip was examined at hospital although Ms Djekic stated that she had pain in the back, neck, shoulders and left hip. A couple of days later Ms Djekic attended Dr Tomko who referred her for CT scans of the chest, cervical and lumbar spine. The scans were undertaken on 23 September 2019.
[41] Insurer’s bundle, p 328.
The claimant referred to her treatment and that she continues to suffer pain in the lumbar spine radiating to the left leg, and cervical spine pain radiating to both shoulders.
SUBMISSIONS
Claimant’s submissions dated 12 May 2022[42]
[42] Claimant’s bundle, p 1.
The claimant referred to an earlier motor accident on 1 March 2017 which caused injury to the neck which resolved. It was asserted that all injuries and disabilities had resolved at the time of the motor accident.
The claimant submitted that the motor accident involved a “significant impact” with the deployment of airbags. Police and ambulance were called, and the claimant was transferred to Fairfield Hospital.
The claimant relied on the assessment of Dr Yuk-Kai Lee dated 18 February 2022 and required assessments of the low back, neck, both shoulders and left hip.
After referring to the evidence, the claimant noted that an MRI scan dated 19 May 2017 and a bone scan dated 7 September 2017 does not show any fractures. Dr Shatwell does not point to any objective evidence of a pre-existing impairment in accordance with cl 6.31 of the Guidelines.
The claimant submitted that she sustained an injury to the cervical spine as evidenced by the CT scan dated 23 September 2019 compared adversely to the prior cervical spine CT scan taken in 2017. She asserted that the neck recovered after one year following the 2017 motor accident.
The claimant submitted that she injured both shoulders and otherwise has reduced shoulder movement by reason of the neck injury assessable under the principle established in Nguyen v The Motor Accidents Authority.[43]
[43] [2011] NSWSC 351 (Nguyen).
The claimant referred to the scan of the left hip taken following the accident and the ongoing symptoms with pan radiating down the left hip.
The claimant otherwise submitted that the injuries impacted on her activities of daily living.
Insurer’s submissions dated 3 June 2022[44]
[44] Insurer’s bundle, p 319.
The insurer noted that the claimant was taken to Fairfield Hospital and discharged on the same day following an X-ray of the hip.
The insurer noted the previous motor accident and the extensive medical treatment in 2017 for symptoms in the neck, shoulders, left hip and back pain.
The insurer disputed that the motor accident caused injury to the shoulders, cervical and/or lumbar spine. It otherwise referred to the opinion of Associate Professor Shatwell dated 24 March 2022 that the transverse fractures were not caused by the motor accident.
The insurer referred to Dr Shatwell’s opinion of the CT scan dated 23 September 2019 that the motor accident did not cause soft tissue injury to the cervical spine.
The insurer noted that the claimant did not complain to Dr Shatwell of pain radiating to the shoulders from the neck. There was otherwise no complaint of hip pain to either Dr Shatwell or Dr Lee,
RE-EXAMINATION
Ms Djekic was examined by Medical Assessor Assem of the Panel. The joint examination report is as follows:
“Ms Djekic attended the medical suites at 20 Macquarie St., Parramatta on Friday 28 April 2023 unaccompanied.
Pre-accident Medical HistoryOn 1/03/2017, Ms Djekic was involved in a motor vehicle accident when her car was rear-ended, causing injuries to her neck, back, and shoulders. She was transported by ambulance to Bankstown Hospital. On 10 May 2017, she complained of headaches, neck pain, shoulder pain, pins and needles in the right hand, and low back pain radiating into both legs. On 17 May 2017, she attended Dr Donnellan with neck pain and bilateral brachialgia. On 18 May 2017, she underwent MRI of the cervical spine and left shoulder which revealed mild subacromial subdeltoid bursal inflammation and tendinosis of the intra articular portion of the long head of the biceps. On 24 July 2017, she attended Dr Herald with continued neck pain which she felt radiated to both shoulders and down her back. On 8 November 2017, Dr Khan indicated that she had sustained a bilateral rotator cuff tear post-motor vehicle accident, right-sided C spine nerve root impingement, and mechanical low back pain. However, imaging of her cervical spine, lumbar spine and shoulders did not show any significant pathology.
On 9 November 2017, she reported to Dr Simone Ryan that she was experiencing all over body pain, worse at the neck and lower back. She also described significant pain in and around both shoulders, although she indicated that this may be radiating out from her neck. She had treatment with medication, physiotherapy, hydrotherapy for approximately one year. She reports that her symptoms resolved one year later, and her CTP claim was settled.History of the motor accident
On 10/09/2019, Ms Djekic was driving a Toyota Corolla in an Easterly direction along Eleventh Avenue Austral though an intersection with Edmondson Avenue in the path of another vehicle causing the accident. She believed that the other vehicle was at fault as he appeared to be speeding. The photographs provided show moderate damage to the front passenger side of her vehicle. She was wearing a seat belt restraint. The airbags were deployed, and her car was written off.
History of symptoms and treatment following the motor accident
According to the Ambulance report, she complained of a headache and dizziness. She denied any neck or back pain. She was transported to Fairfield Hospital and underwent an X-Ray of her left hip, which did not show any bony injury. Unfortunately, the hospital records were unavailable, making it impossible to determine whether there were any other injuries.
According to Ms Djekic, she sustained injuries to her neck, back, and both shoulders. However, when asked about the onset of her shoulder symptoms, she was unable to provide a specific date. When questioned about the cause of her shoulder injury, she stated that she felt pushed sideways within the vehicle.
She initially sought medical attention from Dr. Tomka, although his clinical records were unfortunately not provided. Dr. Tomka arranged imaging of her chest, cervical, and lumbar spine on 23 September 2019, which revealed a fracture through the transverse processes of L2, L3, and L4 vertebrae. Upon careful scrutiny of the radiological images, the fracture line was clearly demarcated, and there was no evident surrounding oedema. As earlier imaging did not identify any fractures, I accepted that the fracture was probably a result of the accident. It is worth noting that her complaints of shoulder pain were not documented until she completed an APIB form on 1 October 2019, which was approximately three weeks after the accident. When asked about the delayed reporting of her shoulder complaints, she was unable to provide a clear explanation apart from mentioning that the pain may have originated from the cervical spine. She did not undergo any imaging of her shoulders, consult a shoulder specialist or receive any physiotherapy treatment for her shoulder complaints. Her treating physiotherapist noted that she was working as a dental hygienist for approximately
5-7 hours/week.
Details of any relevant injuries or conditions sustained since the motor accident
Nil reported.
Current symptoms
She has denied any significant improvement in her condition. She continues to experience neck discomfort radiating to both shoulder and arms up to her elbow. There was no associated paraesthesia or weakness. She also experiences intermittent lower back discomfort radiating to her left hp and buttock. There was no radiation to her lower extremities. She takes Panadol or Mobic when needed.
ExaminationMs Djekic appeared well and in no apparent distress. She demonstrated pain behaviour in the form of grimacing and vocalisation. Her height was 167 cm and he weighed 125 kgs.
Cervical spine
She reported tenderness on palpation over the upper trapezii, slight worse on the left without muscle guarding or spasm observed in the cervical spine. She also reported having more difficulty looking up than down. It's worth noting that she had a stooped posture due to an upper thoracic kyphosis, which appeared to limit cervical extension. Nevertheless, this limitation was symmetrically reduced with respect to her posture and body constitution when compared with cervical flexion. Upon examination, there was a symmetrical restriction in lateral flexion and rotation to approximately 1/2 of the normal range. No asymmetry of movement or spinal dysmetria was observed.
Neurological examination of her upper extremities was normal with normal power, tone, sensation and reflexes.
Lumbar spine
She reported tenderness on palpation, with no muscle guarding or spasm observed. Lumbar movements were also markedly restricted to less than 1/2 of normal range in flexion, extension, lateral flexion and rotation. There was no asymmetry or spinal dysmetria. She was able to climb on and off the examination couch without assistance. Straight leg raising in a supine position was markedly restricted to 10 degrees. Neural tension signs were negative. Neurological examination of her lower extremities was normal apart from global weakness.
She showed global weakness, which did not seem to follow a specific distribution corresponding to any particular spinal nerve root.
Upper extremity
She reported that her shoulder movements were limited due to pain arising from the cervical spine and both shoulders as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 80° 80° Extension 20° 20° Adduction 2° 2° Abduction 80° 80° Internal Rotation 50° 50° External Rotation 40° 40° Upon examination, I noted that the claimant's shoulder range of motion differed from what had been documented by other medical examiners. When I brought this to her attention, she stated that she did not know why Dr. Lee's examination findings were not accepted.
Hip
She has pain referred to her left hip. She demonstrated a normal range of hip motion as follows:
Hip Movements RIGHT LEFT Flexion
110°
110°
Extension 0° 0° Adduction 20° 20° Abduction 30° 30° Internal Rotation 30° 30° External Rotation 40° 40° Consistency
During the examination, I observed that her movements were slow, purposeful, and accompanied by pain behaviour. The marked restrictions observed were disproportionate to what would typically be expected from a soft tissue injury to her cervical spine or shoulders. These observations were also inconsistent with the range observed by other medical examiners. I brought these inconsistencies to the claimant’s attention and there was no specific response.Whole Person Impairment
Lumbar spine
Ms Djekic sustained fractures of the L2, L3 and L4 transverse vertebrae. On viewing the films, the fractures had well demarcated edges without surrounding oedema as would be expected in a healed fracture. As there was no apparent displacement of the fractures (MAA Guides, paragraph 6.149, p 109), she has a Lumbosacral DRE category I or 0% WPI (AMA4, Table 72, p 110). There was pain referred to her left hip but no limitation in hip motion (AMA4, Table 40, p 78).
Cervical spine
She has neck pain and stiffness without any asymmetry of motion, muscle guarding or spasm. There were no focal neurological deficits or non-verifiable radicular complaints. Her condition is consistent with a DRE Cervicothoracic category I or 0% WPI (AMA4, 3/104).
Shoulders
There was no evidence of a direct injury to her right or left shoulder. Her limitations appeared to be secondary to pain arising from the cervical spine[45]. As her shoulder movements were disproportionate to what would typically be expected in a person with a soft tissue injury to her cervical spine and inconsistent with the range observed by other medical examiners, range of motion was not a valid method of determining her level of impairment (MAA Guidelines ver 9.1, clause 6.41, p 90). She was therefore assessed by way of analogy (MAA Guides, paragraph 6.24, p 88). An analogous condition would be mild crepitations of the right AC joint giving 10% joint impairment (AMA4, Table 19, p 59) which is multiplied by 15% WPI (AMA4, Table 18, p 58) to obtain 1.5% WPI rounded to 2% WPI. She would be expected to have a similar impairment in left shoulder motion giving 2% WPI.[45] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance LTD [2011] NSWSC 351.
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident Cervical spine Chapter 3, page 103 (AMA4) Yes 0% 0% 0% Lumbar spine Chapter 3, page 102
(AMA4)Yes 0% 0% 0% Right shoulder AMA4, Chapter 3, Figures 38, 41 and 44, p 42, MAA Guidelines ver 9.1, clause 6.41, p 90; MAA Guides, paragraph 6.126, p 107; MAA Guides, paragraph 6.24, p 88; AMA4, Table 19, p 59; AMA4, Table 18, p 58 Yes 2% 0% 2% Left shoulder AMA4, Chapter 3, Figures 38, 41 and 44, p 42, MAA Guidelines ver 9.1, clause 6.41, p 90; MAA Guides, paragraph 6.126, p 107; MAA Guides, paragraph 6.24, p 88; AMA4, Table 19, p 59; AMA4, Table 18, p 58 Yes 2% 0% 2% Left Hip Yes 0% 0%
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[46] The Panel adopts the examination findings of Medical Assessor Assem and adds the following brief reasons.
[46] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[47] and Insurance Australia Ltd v Marsh.[48]
[47] [2021] NSWCA 287 at [40], [41] and [45].
[48] [2022] NSWCA 31 at [11], [21], [64].
Shoulder injuries
For the reasons articulated by Medical Assessor Assem, we do not accept that there were discrete shoulder injuries sustained in the motor accident. A discrete frank injury to the shoulders is otherwise inconsistent with and not explained by the mechanism of the motor accident.
The claimant’s submissions rely on both discrete injury to the shoulders and an assessment based on the Nguyen principle.
The Medical Assessor has explained why the claimant’s loss of range of movement is not a valid indicator of the extent of impairment.
Lumbar spine assessment
We agree with the insurer’s submission that the fractures are assessed at DRE Category I although not for the reasons submitted. Clause 6.144 of the Guidelines notes fractures of transverse processes or spinous process at multiples levels is not multilevel structural compromise. Clause 6.149 of the Guidelines provides:
“Fractures of transverse or spinous processes (one or more) with displacement within a spinal region are assessed as DRE category II because they do not disrupt the spinal canal (pages 102, 104, 106, AMA4 Guides) and they do not cause multilevel structural compromise.”
As the reasons of Medical Assessor Assem showed, the fractures of the transverse process did not include displacement. Accordingly, the fractures cannot be assessed as DRE Category II. In addition, there was no radiculopathy.
We otherwise do not accept the insurer’s submission that the ongoing nature of low back complaints suggests that the fractures were not caused by the motor accident. Logically, the matters are distinct. Medical Assessor Assem has otherwise explained why it is more than likely that the transverse fractures were caused by the motor accident.
Pre-existing or subsequent injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[49] concerning the issue of onus.
[49] [2022] NSWPICMP 66 at [118]-[120].
Clause 6.31 of the Guidelines requires a deduction for “pre-existing impairment” if “there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.
Despite the obvious pre-existing conditions affecting the neck and shoulders in 2017, we are not satisfied that the objective evidence of symptomatic permanent impairment at the time of the motor accident.
CONCLUSION
The certificate is revoked as we have made different assessments of impairment. The new certificate is attached at the commencement of these Reasons.
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