Ear v AAI Limited t/as GIO
[2024] NSWPICMP 389
•19 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ear v AAI Limited t/as GIO [2024] NSWPICMP 389 |
| CLAIMANT: | Houng Eang Ear |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 19 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment revoking prior certificate; whole person impairment; need for further examination; clarification of pre-accident history; relevant injuries and conditions; fractured/dislocation (right shoulder); direct impact and abrasion (right knee); Held – Medical Assessment Certificate revoked, and new Medical Assessment Certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor David McGrath dated · cervical spine – 0%; · lumbar spine – 5%; · right upper extremity – 8%; · right lower extremity – 2%, and · left lower extremity – 0%, the claimant has suffered a whole person impairment of 15%. |
STATEMENT OF REASONS
INTRODUCTION
This is a dispute between the claimant and the insurer about:
· the degree of permanent impairment under s 2(a) of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant is a 69-year-old woman who was injured when struck by a motor vehicle whilst crossing Railway Street at Pennant Hills. The claimant lodged an application for personal injury benefits form with the insurer on 19 October 2018. In 2020 the claimant sought a concession from the insurer that the whole person impairment (WPI) she sustained consequent on the injuries suffered in the motor vehicle accident exceeded the 10% WPI threshold. The insurer declined this request and, following a review dated
22 September 2021, affirmed its determination that the claimant’s physical injuries in the motor vehicle accident was not greater than 10%.
Thereafter the claimant lodged an application for assessment of the degree of permanent impairment and, following the provision of material from both the claimant and the insurer, it was examined by Medical Assessor David McGrath on 9 May 2023. The Medical Assessor determined the degree of permanent impairment caused by the motor accident to be 7%. This was consequent on a finding of 5% WPI to the right upper extremity and 2% WPI to the right lower extremity with 0% WPI to the cervical spine, lumbar spine and left lower extremity.
Following this determination the claimant sought a review of this assessment submitting primarily that the assessment of 5% consequent on the right shoulder injury, 0% for the lumbar spinal injury and 0% for the left knee injury gave rise to a reasonable cause to suspect that the medical assessment was incorrect in the material respect.
The insurer responded to this application submitting that the findings of the Medical Assessor on examination were entirely consistent with the applicable guidelines for a finding of no impairment of the lumbar spine and left lower extremity.
The matter was considered by Presidential delegate, Tajan Baba, who, in a decision uploaded to the portal on 10 July 2023, determined that there was a reasonable cause to suspect that the medical assessment was incorrect in the material respect. This finding was primarily on the basis of the 0% WPI in respect to the left knee. Accordingly, the matter was referred to the Review Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
As the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The Panel conferred on 1 November 2023 noting that additional material was required in particular the clinical notes of the claimant’s admission, post-accident on 9 October 2018, to Hornsby Hospital. The Panel also sought submissions from the parties should they wish to oppose this matter being considered “on the papers”.
Following this telephone conference the additional material was loaded on to the portal. Submissions were received from the claimant confirming that the claimant sought a further examination of an assessment of all injuries sustained by the claimant and which have been the subject of the referral to Medical Assessor David McGrath. That was in accordance with the directions dated 1 November 2023.
The Panel conferred again on 28 November 2023 and noted the material sought had been uploaded and concurred with the claimant’s submission that a re-examination of the claimant was required. This took place on Monday 29 January 2024 at 10.00am before Medical Assessor Michael Couch.
Pre-accident medical history and relevant personal details
The claimant attended accompanied by her husband. The Cantonese interpreter, Mr Peter Ng, NAATI No: 19506 (Cantonese) was present throughout. The clinical assessment took 90 minutes. Mrs Ear was asked how she wished to use the interpreter. She said that she spoke a little English and would try to answer simple questions. She did so in broken English, but the interpreter was used intermittently throughout to clarify questions and responses. The quality of communication was good. Her husband was present throughout but did not interfere in any way. All three present confirmed that they had been fully vaccinated against COVID-19 and none had any respiratory symptoms.
Pre-accident history
Following this determination the Panel reconvened on 20 February 2024 to further consider this matter. Thereafter the Panel determined that there were matters relating to pre-accident complaints of back pain which needed to be specifically put to and clarified with the claimant. The claimant was further interviewed with Medical Assessor Couch by Teams link on
27 May 2024. With the assistance of a Cantonese interpreter the claimant clarified that she had experienced low back pain as noted in the GP’s records dated 3 November 2017 but went on to confirm that while she had some low pain it was a minor issue. The claimant attended her doctor but it didn’t last long and following prescription of pain killer medication her back pain resolved. She specifically denied being referred to any medical specialist, physiotherapist or any other treatment. She denied having any low back pain or lower limb symptoms in the period prior to the subject motor vehicle accident. She confirmed that her main symptoms which she now related to the subject motor vehicle accident were pain in her right shoulder, lower back and left lower limb. The Panel was confident that there was no objective or symptomatic pre-existing impairment of the lumbar spine which would affect its current WPI assessment.
History
I commenced by going through the history detailed in Medical Assessor McGrath’s certificate of 10 May 2023 and confirming, elaborating or adding to this as appropriate.
Pre-accident medical history and relevant personal details
The claimant is now aged 69 years. She and her husband are ethnic Chinese but came to Australia as refugees from the Pol Pot regime in Cambodia. She has four adult children (the oldest being 49), all of whom have left home. She has nine grandchildren. Both Mrs Ear and her husband used to work harvesting flowers in a flower farm near Sydney. They are both now retired and live near Castle Hill.
The claimant denied any previous significant accidents, stating that “this was the first nasty accident”. She confirmed that prior to the accident she had consulted her GP for mild knee pain. She had not consulted any specialists for this. She said that she had mostly taken Panadol for this (although Medical Assessor McGrath stated that she had been prescribed the NSAID Celebrex).
History of the subject motor accident
The claimant said that around 3:00pm on 9 October 2018, she had just been to an English class and went to cross the road on a pedestrian crossing. She checked for traffic and started to cross. The next thing she recalled was a sudden impact on her right shoulder and falling to her left side onto the road. She said that she did not actually see the car and was not herself aware of what part of the car had struck her. She struck her left temple/area lateral to the left eye on the road. She had a lot of bleeding and her spectacles were broken. Ambulance and police attended and she was taken to Hornsby Hospital Emergency Department for assessment. She thought she had eventually gone home about 1:00am the next morning.
I asked Mrs Ear where she recalled first noticing pain after the accident. She initially pointed spontaneously to the left lumbosacral area. On further discussion she said that she first noticed this some days after the accident, when she first attended a physiotherapist for the more obvious injury to her right shoulder. She said that she told the physiotherapist she also had lower back pain, and had received treatment to this area as well as the shoulder.
The claimant confirmed that she initially had pain in the right shoulder. A CT scan of the shoulder performed at Hornsby Hospital on the day of injury was reported to show:
“fracture of the anteroinferior glenoid likely representing a bony Bankart lesion. Indention of posterosuperior aspect of the humeral head neck junction may represent a Hill-Sachs lesion. Humeral head appears enlocated…
Conclusion:
Probable recent anterior dislocation/relocation injury of the right humeral head with bony Bankart lesion and Hill-Sachs lesion.”The claimant was referred from Hornsby Hospital to Dr David Duckworth, specialist shoulder surgeon. The day after the accident, on 10 October 2018, Dr Duckworth reviewed her and stated that she could move the shoulder to some extent with the elbow by the side and that the axillary nerve function was intact. He stated:
“Mrs Ear presents with a glenoid fracture secondary to dislocation. At her age and due to her function I believe this is best treated conservatively. I have recommended a sling and gentle pendular range of motion. I would like to see her again in four weeks with a new set of x-rays.”
The last follow up report from Dr Duckworth seen was dated 17 January 2019 (three months’ post-injury). He wrote:
“X-ray showed as united and her shoulder is well-located. Her biggest problem now is one of stiffness and she has developed a capsulitis. On examination today she could elevate to 120 degrees, externally rotate to 40 degrees and internally rotate to L5. I have recommended ongoing stretches and time and her shoulder should improve…”
I understood that Mrs Ear had ceased follow up with Dr Duckworth.
The claimant went on to describe significant sleep disturbance initially after the accident. She also described marked bruising to the anterior aspect of both knees, with persistent bilateral anterior knee pain. When asked about her neck, she described “some pain then” but said that she could not exactly remember the time of onset of this.
The claimant confirmed that subsequent treatment had been with her GP and she had not seen any other specialists. She also mentioned that her previous Cantonese-speaking GP had retired and she had not been able to access all her medical records. She now attends a different GP at a different clinic – also Cantonese-speaking. She continues to take anti-inflammatory and analgesic medication (see below). She still sees a physiotherapist every one to two weeks, but now pays for this herself. She said that treatment included massage. She said that she continues to do shoulder exercises including use of green Theraband (medium resistance).
Details of any relevant injuries or conditions sustained since the motor accident
The claimant confirmed that she had not sustained any subsequent injuries or conditions.
Current symptoms
I asked Mrs Ear if she thought that symptoms from the injuries sustained in the accident were improving, getting worse or staying the same. She replied: “If anything worse”.She spontaneously demonstrated poor range of movement in her right shoulder and described difficult carrying things or lifting with her right arm (she is right-handed). She also mentioned ongoing left-sided low back pain and said that because of this, she can no longer walk as fast as she used to. She does not walk as fast as her husband and definitely cannot keep up with her grandchildren.
I asked Mrs Ear what symptoms currently troubled her most. She said that low back pain was the most troublesome, followed by right shoulder. She also described bilateral anterior knee pain and some more minor neck symptoms. She described these symptoms in more detail as follows:
“Low back pain
The claimant stood and pointed to the left lumbosacral area, and indicated radiation to the left buttock and posterolateral thigh. Pain is constant. It is generally better if she rests and is worse with activities such as bending or walking. She pointed out that she will usually take Paracetamol before going for a walk for about 15 minutes with her husband. Of static postures, she finds that lying down gives the best relief.
Right shoulder
She pointed with the left hand to the point of the shoulder and the posterior shoulder cowl. Pain mainly occurs with right upper limb use. She described definitely restricted range of movement. She cannot reach a high shelves and would get her husband to do this. She has taken to fastening her bra at the front because she cannot reach behind her. She has to sleep on her left side and right shoulder pain can sometimes wake her if she rolls over in her sleep.Knees
The claimant described ongoing bilateral anterior knee pain, mainly on walking.Neck
The claimant described some ongoing pain in posterior neck region, putting her left hand on it. She said that she used a lot of local liniments on her neck for relief.”
Present activities
The claimant said that she now only does a “little bit” of housework and her daughter-in-law comes in regularly to help her. She does limited cooking. She said that she would definitely not cook for a family gathering, and that her children bring food if there is an occasion. She thought she was getting about six hours’ sleep per night. She does not leave the home every day, although she does walk some days with her husband for about 15 minutes. She has never had a driver’s licence.
Present medications
The claimant takes Celebrex 200 mg most days although at times she has taken the alternative NSAID Mobic 15 mg instead. (She understands that she should not take both together). She also takes Nexium 40 mg for upper gastrointestinal symptoms and takes about four Panadol per day – she usually takes Panadol before she goes for a walk. She also takes a combined medication for hypertension.
Physical examination
The claimant presented as a generally healthy-looking 69-year-old woman of short stature (150cm and 60kg). She was neatly groomed and wore a short-sleeved top, jeans, socks and lace-up sneakers. She also wore spectacles. She spoke some broken English but we used the interpreter intermittently throughout. She was fully cooperative and appeared to be sensible and straightforward, with a normal affect. She could smile and share a joke appropriately. She appeared to consider her responses to my questions and to be trying to give accurate answers. She was able to sit during our 35-minute interview.
The claimant walked rather slowly with a slight limp. I noticed that she pushed off each lace-up sneaker and short sock while sitting with the other foot. Her toenails were varnished but she does not do this herself. I was able to examine the upper part of her body satisfactorily while she wore a loose, short-sleeved top. She did remove her jeans for examination of the lumbar spine and lower limbs;
“● Cervical Spine
Posture of the cervical spine was within normal limits. On palpation she described slight tenderness in the midline and to the right side, which was more marked proximally than distally. There was no muscle guarding or spasm. AROM of flexion, extension, rotation and lateral flexion was symmetrically reduced to approximately two-thirds normal range in each plane. There was no evidence of dysmetria. Both trapezius muscles were slightly tense to palpation – the left was non-tender but the right trapezius muscle was slightly tender. As can be seen below under “Upper Extremities”, there was no evidence of cervical radiculopathy. Mrs Ear was not reporting non-verifiable radicular complaints in the upper limbs.
· Lumbosacral Spine
On palpation with the claimant lying prone on the couch, she reported moderate tenderness over the lumbosacral spine in the midline, more marked to the left side than the right. I carefully checked for lumbar paraspinal muscle guarding/spasm by asking Mrs Ear to stand and move her bodyweight alternately from one foot to the other. When she balanced on the right foot, the right paraspinal muscles relaxed in the normal manner. However when she balanced on the left foot, the left paraspinal muscles remained tense, indicating a degree of guarding/spasm.
AROM of the lumbar spine was measured with the claimant standing with knees straight. She could flex forward reasonably well with fingertips to the knees, with a 4.5 cm expansion over a measured 15 cm lumbar segment (the normal lower limb for this MacRae-Wright movement is 5 cm). In contrast, lumbar extension was very limited to about one-quarter of normal, and reported as more painful than flexion. There was also asymmetry of lateral flexion- two-thirds of normal to the right and one-third of normal to the left, with more pain reported to the left. There was therefore reproducible dysmetria as well as muscle guarding. As can be seen below, under “Lower Extremities”, there was no evidence of lumbosacral radiculopathy. Mrs Ear was describing radiation of low back pain to the left buttock and thigh but this was not typical of non-verifiable radicular complaints.· Upper Extremities
Hands were clean and soft with normal grip bilaterally. The right (dominant) upper arm measured 32 cm and the left 31 and both forearms measured 24 cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Light touch sensation was preserved bilaterally. Power of all muscle groups in the left upper limb was normal. On the right, there was normal power of resisted wrist movements and of elbow flexion and extension, although she did report some right shoulder pain during testing.
Abnormalities in the upper limbs were restricted to the right shoulder, which was obviously abnormal. On palpation she reported moderate tenderness over the right glenohumeral joint, maximal laterally, with no corresponding tenderness on the left. AROM was measured carefully with a goniometer with the repetition, as tabulated.
Right Left Flexion 90° 170° Extension 30° 60° Abduction 90° 180° Adduction 20° 40° Extension Rotation 80° 100° Internal Rotation 50° 90° Restricted internal rotation on the right was confirmed – she could only reach her right thumb to buttock level, although she could reach her left thumb up to T4 level (on questioning she said that she can reach her hair with both hands but mainly has to use her left hand for washing in the shower). Impingement signs were positive in the right shoulder but negative in the left. I considered that range of movement measurements could be used as a valid method of impairment assessment for the right shoulder.
· Lower Extremities
Measured 10 cm proximal to the patella, both thighs measured equally at 43 cm. The right calf measured 35 cm and the left 35.5.
Knee jerks and ankle jerks were normal and symmetrical and both plantar responses flexor (normal). Straight-leg-raising was 80 degrees on the right with complaint of knee pain only. It was slightly reduced on the left at 60 degrees with low back pain, but no typical radicular pain reproduced for sciatic stretching. Light touch was preserved bilaterally. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal bilaterally.
Functionally, the claimant could take a few cautious steps with weight on the balls of her feet and heels off the floor, and then with weight on her heels and forefeet off the floor. Both knees showed slight varus alignment. Both knees showed a normal active range of movement from 0 to 120 degrees and ligaments were all clinically intact. There was slight patellofemoral tenderness bilaterally, with pain reproduced on patellofemoral grinding. There was definite moderate crepitus on movement in the right knee, but no/minimal crepitus on the left. I considered the signs in the right knee were consistent with persistent patellofemoral pain and crepitus following direct impact to the anterior knee in the accident. She was only able to perform about a half squat without using hand support, complaining of low back and knee pain. The Panel found no/minimal crepitus upon movement of the left knee. The history and examination of the claimant did not support a finding of any ongoing impairment consequent or arising from the subject motor vehicle accident.”
Conclusions
The claimant was fully cooperative throughout. Communication was satisfactory and she appeared to make her best effort to give accurate and straightforward answers to my questions.
No inconsistencies were found in her behaviour and findings in relation to her right shoulder and right knee were similar to those of Medical Assessor McGrath (and also Dr Davis in July 2020). Findings in relation to the lumbosacral spine were more consistent with those of Dr Davis than those of Dr McGrath. The Panel was not convinced that the material or examination of the claimant revealed any pre-existing impairment of the body parts to be assessed and accordingly no deduction was made.
The most serious and obvious injury sustained in the subject accident, when she was knocked down by a car onto the road, was a self-reducing fracture-dislocation of the right shoulder. She has persistent pain and stiffness with marked restriction of AROM which has generally been consistent over a prolonged period of time. The above measurements give 14% upper extremity impairment for the right shoulder and 1% for the left shoulder (I found better range of movement in the left shoulder than did Medical Assessor McGrath). This gives a net upper extremity impairment of 13% for the right shoulder which converts to 8% WPI.
I found evidence of persistent painful crepitus in the right knee with a history of direct impact and marked abrasion to that knee in the accident. Using the footnote to Table 62 of AMA4, there is 2% WPI.
The claimant gives a convincing history of persistent, mainly left-sided lower back pain since very soon after the accident (in which she was knocked down to the ground). She currently reports low back pain as her worst symptom, despite the quite restricted right shoulder. She has an abnormal gait which appears to be related to her lumbar spine condition. Examination showed tenderness, quite marked dysmetria and muscle guarding/spasm, although no objective evidence of radiculopathy. This is assessed as DRE category II, giving 5% WPI. The above figures are combined using the Combined Values table to give 15% WPI.
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