El-Kazzi v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 165
•20 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | El-Kazzi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 165 |
| CLAIMANT: | Michel El-Kazzi |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Ian Cameron |
| DATE OF DECISION: | 20 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical review of certificate of Medical Assessor (MA) Berry; the claimant suffered injury in a motor vehicle accident on 9 November 2019; the dispute related to the assessment of whole person impairment (WPI) under the Motor Accident Injuries Act 2017 of cervical spine, lumbar spine, both shoulders and colorectal/gastrointestinal injury; MA Berry certified 5% WPI of cervical spine, 0% WPI of lumbar spine; 2% WPI for each shoulder; colorectal/gastrointestinal injury not caused by accident; total 9% WPI; Held – claimant’s presentation consistent; soft tissue injury of cervical and lumbar spine, with aggravation of pre-existing degenerative change; soft tissue injury of both shoulders with aggravation of pre-existing condition; accident not cause colorectal or gastrointestinal injury; 5% WPI of lumbar spine, 0% WPI of cervical spine, 4% WPI of right shoulder and 2% WPI left shoulder; certificate of MA Berry revoked; certificate issued greater than 10% WPI caused by accident. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Review Panel Assessment of Permanent Impairment 1. The Panel revokes the certificate of Medical Assessor Berry dated 31 July 2023 and issues a new certificate determining that the following injuries caused by the accident give rise to a WPI which is greater than 10%: · cervical spine – soft tissue injury with aggravation of pre-existing degenerative change; · lumbar spine – soft tissue injury with aggravation of pre-existing degenerative change; · left shoulder - soft tissue injury with aggravation of underlying rotator cuff tendinopathy, subacromial bursitis and acromioclavicular joint degeneration; and · right shoulder - soft tissue injury with aggravation of underlying rotator cuff tendinopathy, subacromial bursitis and acromioclavicular joint degeneration. 2. The Panel finds the following injury was not caused by the accident: · colorectal – gastrointestinal issues – upper and lower intestinal injuries/gastrointestinal issues. |
REASONS FOR DECISION
BACKGROUND
On 9 November 2019 Michel El-Kazzi (the claimant) was working as an Uber driver when he stopped at traffic lights in Pyrmont. Another driver lost control of his car which collided into the car stationary beside Mr El-Kazzi’s car causing it to slam into the side of his car (the accident). Mr El-Kazzi was able to extricate himself from his car.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr El-Kazzi under the Motor Accident injuries Act 2017 (the MAI Act).
Mr El-Kazzi lodged an Application for Personal Injury Benefits dated 11 November 2019 in which he listed injury to the neck, injury to the left shoulder, injury to the right shoulder and injury to the lower back.[1]
[1] Claimant’s bundle p 35.
A dispute arose as whether the claimant had sustained a whole person impairment (WPI) greater than 10%.[2] The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the dispute between the parties.
[2] Claimant’s bundle p 43.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including:
(a) “the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
The permanent impairment dispute in respect of the urological injury was referred to Medical Assessor Korber.
The permanent dispute in respect of the cervical spine, the lumbar spine, both shoulders gastrointestinal injury was referred to Medical Assessor Berry.
The insurer sought a review of the assessment of Medical Assessor Berry.
DOCUMENTS CONSIDERED BY THE PANEL
On 18 December 2023 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 428 (insurer’s documents). On 20 December 2023 the insurer uploaded an Application to Admit Late Documents paginated from page 1 to 141 (AALD) comprising the clinical records of Liverpool Hospital.
The documents relied upon by the claimant were uploaded to the portal on 8 January 2024 and paginated from pages 1 to 1310 (claimant’s documents). Two videos of the accident were also uploaded to the portal by the claimant.
STATUTORY PROVISIONS
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[4]
[4] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Berry within 28 days of the date on which the certificate of Medical Assessor Berry was made available to the parties.
On 17 November 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 8 January 2024 the panel agreed a medical examination was required.
CERTIFICATE UNDER REVIEW
Medical Assessor Berry issued a certificate dated 31 July 2023.
The following injuries were referred to Medical Assessor Berry for an assessment of permanent impairment:
· cervical Spine – mechanical cervical spine injury/musculoligamentous injury/disc prolapse/herniation at D5/C6 level, C3/4 level there is mild to moderate bilateral uncovertebral hypertrophy resulting in mild foraminal narrowing;
· colorectal – gastrointestinal issues – upper and lower intestinal injuries/gastrointestinal issues;
· lumbar Spine – mechanical lumbar spine injury/musculoligamentous injury/mild diffuse disc bulge L3/4, L4/5 and L5/S1, lumbosacral facet joint arthritis;
· shoulder – left shoulder rotator cuff tear/full thickness supraspinatus and upper end subscapularis rotator cuff tear and scarring, and
· shoulder – right shoulder rotator cuff tear/full thickness supraspinatus rotator cuff tear and scarring.
Medical Assessor Berry reported Mr El-Kazzi occasionally suffered with neck and back pain prior to the accident but had not suffered any specific injuries.
He reported following the accident Mr El-Kazzi attended his general practitioner complaining of neck, back and bilateral shoulder symptoms. He underwent left shoulder arthroscopic surgery on 21 February 2020 and right shoulder arthroscopic surgery on 25 September 2020 under the care of Dr Herald.
On examination Medical Assessor Berry reported the cervical spine was mildly tender to palpation, left rotation and extension were limited to half range and movements were otherwise normal. He found no muscle spasm and no alteration of spinal contour. Medical Assessor Berry reported the claimant demonstrated two thirds of the normal range of flexion, extension and rotation of the lumbar spine. He reported right sided tenderness in the thoracolumbar region but no spasm and no muscle guarding or other change.
Medical Assessor Berry measured shoulder movements with a goniometer as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 170° 160° Extension 50° 50° Adduction 50° 50° Abduction 150° 160° Internal Rotation 50° 80° External Rotation 80° 50°
He reported the claimant demonstrated a full range of movement at both lower extremities. Reflexes were intact and sensation was normal.
Medical Assessor Berry reported the claimant’s abdomen was not tender to palpation and noted there was no guarding, rigidity or rebound and no palpable masses. He reported
Mr El-Kazzi had undergone a gastroscopy and colonoscopy which was normal.In his certificate dated 31 July 2023 Medical Assessor Berry concluded the following injuries were caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· bilateral shoulders – rotator cuff disruption and subsequent repair.[6]
[6] Claimant’s bundle p 11.
He concluded colorectal/gastrointestinal issues were not caused by the accident.
Medical Assessor Berry reported Mr El-Kazzi had an asymmetrical range of movement with no evidence of radiculopathy in the upper extremities. He assessed the cervical spine as a diagnosis-related estimate (DRE) Category II resulting in a 5% WPI.
In the lumbar spine Medical Assessor Berry reported a restricted range of movement with no dysmetria, no lower limb radiculopathy and assessed a DRE Category I resulting in a 0% WPI.
Medical Assessor Berry assessed a 2% WPI arising out of injury to the right shoulder and a 2% WPI arising out of injury to the left shoulder.
He certified the claimant had sustained a 9% WPI as a result of the accident.
EVIDENCE BEFORE THE REVIEW PANEL
Mr El-Kazzi is now 55 years of age and was 50 at the time of the accident.
Videos of the accident
The Panel had the opportunity to view two video’s which are apparently dashcam footage of the accident and show the impact as it occurred.
Photographs
Four photographs show the damages to the driver’s side and front of the claimant’s vehicle.[7]
[7] Claimant’s bundle p 29.
Certificate of Medical Assessor Edward Korbel
Medical Assessor Korbel in a certificate dated 4 September 2023 provided an interim assessment of permanent impairment under s 7.22 of the MAI Act that it was probably that the degree of permanent impairment of the following injuries was not greater than 10%:
· male reproductive – reproductive organs, erectile dysfunction – loss of sexual function, and
· urinary tract including bladder – bladder dysfunction – urge incontinence – urinary incontinence.[8]
[8] Claimant’s bundle p 1,182.
Medical Assessor Korbel stated the permanent impairment should be capable of assessment in 12 months after completion of investigation and treatment by Dr Jarvis.
Medical Assessor Korbel certified the injury was not permanent, but he provided an interim assessment of 2% WPI for his bladder injuries related to the accident.
Treating medical records
Panania Family Practice clinical notes
The claimant had a history of hypertension and diabetes.
The early handwritten notes are near illegible although there are complaints of right shoulder pain in mid-2018.
On 13 June 2018 Mr El-Kazzi underwent an ultrasound guided steroid injection to the right shoulder subacromial bursa on referral from Dr Faraj.[9]
[9] Insurer’s bundle p 355.
On 11 December 2018 the claimant consulted Dr Faraj with shoulder impingement/pain/bursitis and on 13 December 2018 Dr Faraj referred to left shoulder capsulitis.[10]
[10] Insurer’s bundle pp 314 and 315.
On 15 November 2019 the claimant consulted Dr Faraj when he complained of pain in the left shoulder, left lower back and neck following involvement in the accident one week earlier.[11] On examination Dr Faraj reported localised tenderness of the cervical spine, restricted movements in all directions but no neuropathic signs in the upper limbs. He reported tenderness to palpation at the glenohumeral joint, restricted elevation, abduction, internal rotation and pain on passive movement. He also noted tenderness and restricted movement of the lower back but with no sciatica.
[11] Insurer’s bundle p 326.
On 9 April 2021 Dr Faraj referred to urinary frequency, nocturia, and dysuria. On 30 April 2021 Dr Faraj noted the results of the abdominal CT enterograph showed no signs of colitis or Crohn’s disease.[12]
[12] Claimant’s bundle p 1,017.
Otherwise, the claimant’s attendances at that practice generally relate to his unrelated medical conditions including hypertension and diabetes mellitus.
Ambulance report
The report states the claimant was in the second car that was hit by the car that was
T-boned.[13] The claimant was able to self-extricate and ambulated on the scene. He subsequently stated he had pain in his cervical spine and altered sensation in his right arm.[13] Insurer’s bundle p 39.
St Vincents Hospital
Mr El-Kazzi was transported to St Vincents Hospital following the accident.[14] It was noted he was tender in the upper and mid cervical spine with nil other injuries identified. A CT scan of the cervical spine showed nil acute features. He was discharged home with analgesia.
[14] Insurer’s bundle p 43.
Dr Ijaz Khan, Injury Care Pty Ltd, general practitioner (GP)
Dr Khan completed a Certificate of capacity/certificate of fitness (certificate) dated 11 November 2019.[15] He provided a description of the accident and reported Mr El-Kazzi advised he experience ed pain to his neck, both shoulders and lower back. He listed the following complaints:
“Neck pain with radiation of discomfort to right upper limb
Bilateral shoulder pain, left greater than right
Dizziness
Headaches
Poor sleep
Low back pain”.
[15] Claimant’s bundle p 233.
On examination of the left shoulder Dr Khan reported abduction to 110º then discomfort, flexion to 130º then discomfort, O’Brien’s test positive, empty can testing positive. He reported flexion of the cervical spine to near full range with discomfort, no abnormality on extension, discomfort with bilateral lateral flexion at end of range, and discomfort at the end of the range when turning head either left or right. Dr Khan reported flexion of the lumbar spine to halfway between knees and feet then discomfort, no abnormality detected on twisting left or right, and on left lateral flexion and extension. He reported right lateral flexion induced discomfort to the left paralumbar spine and straight leg raising to 60º on both left and right. He certified the claimant unfit for work until 18 November 2019.
Dr Khan issued a further certificate on 19 November 2019 and certified Mr El-Kazzi unfit for work until 3 February 2020.[16] He certified the accident resulted in cervical spine – mechanical neck pain, bilateral shoulder pain – specifically impact injury with impingement syndrome to the left shoulder and lumbar spine – mechanical low back pain.
[16] Claimant’s bundle p 238.
Dr Khan’s clinical records are recorded in the various certificates of capacity completed at the time of each consultation, for instance a case conference involving Dr Khan as the nominated treating doctor and the rehabilitation provider is referenced in the certificate dated 5 February 2020. On that occasion it was noted Mr El-Kazzi was keen to proceed with orthopaedic repair of the rotator cuff tears prior to the tendons retracting and becoming irreparable.
In the certificate dated 8 July 2020 D Khan reported Mr El-Kazzi was still not working as he was unable to sit in a driver’s seat for a prolonged period of time without aggravating his low back and shoulder.[17] Dr Khan certified the claimant fit for restricted duties on full time hours.
[17] Claimant’s bundle p 270.
Dr Khan provided a detailed reported dated 16 June 2021 when he reported at the last review the claimant reported neck pain with radiation of discomfort to the right upper limb, bilateral shoulder pain, left greater than right, and low back pain aggravated after one hour of sitting. He continued to certify the claimant fit for work with lifting, sitting, standing, pushing, pulling, bending, twisting and squatting restrictions. Her certified him unfit for his pre-accident employment as an uber driver due to an inability to maintain a fixed neck posture, to sit for prolonged periods and to use his hands and shoulders to turn the steering wheel on a regular basis.
In a certificate dated 10 October 2022 Dr Khan reported Mr El-Kazzi had been referred to a pain specialist Dr Ho.[18] He continued to complain of neck pain with radiation to the right upper limb, bilateral shoulder pain, dizziness, headaches, poor sleep and low back pain radiating to the left lower limb. He had difficulty with gardening and domestic activities and had not returned to work because he could not sit for prolonged periods and was taking Nurofen and Panadol every five hours.
[18] Claimant’s bundle p 1,177.
4DHealth and Performance
In an Allied health recovery request (AHRR) dated 12 November 2019 Mr Jimmy Bui, chiropractor provided a clinical assessment of whiplash associated disorder II, bilateral shoulder strain, left shoulder impingement syndrome and mechanical low back pain.[19] He sought approval for treatment aimed at improving range of motion, stabilisation and endurance.
[19] Insurer’s bundle p 69.
In AHRRs dated 29 May 2020 and 22 June 2020 Domenic Nasso, exercise physiologist sought approval for sessions to promote strength and range of motion.[20]
[20] Insurer’s bundle p 108.
The claimant attended exercise physiology between 5 January 2021 and 9 November 2021. On 28 May 2021 Navneet Mahajan, exercise physiologist sought approval for further treatment sessions. On 20 August 2021 Mr Mahajan reported tightness in the back, neck and shoulders following tasks requiring repetitive bending, lifting or holding a posture.[21] On 9 November 2021 he reported the rehabilitation program resulted in improved neck, shoulder and lower back pain related symptoms.[22] He did not consider Mr El-Kazzi required any further exercise physiology sessions.
[21] Insurer’s bundle p 128.
[22] Insurer’s bundle p 68.
JB Healthcare Cabramatta
Mr El-Kazzi commenced physiotherapy and hydrotherapy treatment with Mr Nguyen, physiotherapist on 11 November 2019 aimed at improving neck, shoulder and lumbar spine range of motion.[23]
[23] Insurer’s bundle p 99.
The claimant commenced physiotherapy with Mr Jeremy Lai, physiotherapist on 5 January 2021.[24] His clinical diagnosis was of cervical spine – mechanical neck pain, bilateral shoulder – impact injury with impingement syndrome to left shoulder and lumbar spine mechanical low back pain.
[24] Insurer’s bundle p 101.
Dr Jonathan Herald, orthopaedic surgeon
Mr El-Kazzi consulted Dr Herald on 20 November 2019. He recorded a history of the accident on 9 November 2019 and continued neck, back and left shoulder pain. On examination his assessment was Mr El-Kazzi had sustained a whiplash injury to the cervical spine, a lumbar muscle strain and left shoulder impingement syndrome.
On 21 January 2020 Dr Herald reported Mr El-Kazzi continued to have neck pain, back pain and bilateral shoulder pain. He noted the MRI scan showed bilateral full thickness rotator cuff tears.[25] He also reported scans showed Mr El-Kazzi had lumbar spondylosis and C3/4 and C5/6 disc prolapse.
[25] Insurer’s bundle p 146.
Mr El-Kazzi underwent left shoulder arthroscopy plus rotator cuff repair and biceps tenodesis on 21 February 2020.[26]
[26] Insurer’s bundle p 140.
Mr El-Kazzi underwent right shoulder arthroscopy plus rotator cuff repair on 25 September 2020.[27]
[27] Insurer’s bundle p 140.
On 3 February 2021 Dr Herald reported progress was limited by lack of rehabilitation, noting the insurer had not approved exercise physiology, hydrotherapy or compounded creams.
On 17 March 2021 Dr Herald reported the claimant had done well with his shoulders but continued to have neck and back pain.[28] He reported forward elevation to 170º, external rotation to 80º and internal rotation to his thoracic spine. He recommended the claimant continue treatment with Dr Nair.
[28] Insurer’s bundle p 238.
Dr Anil Nair, spinal surgeon
On 26 August 2020 Dr Nair described his impression as “Lumbar disc collapse with discogenic. Lower back pain with bilateral extremity radicular symptoms. Cervical disc herniations most significant at C5/6, with mechanical symptoms and headache”.[29] He reported on examination there was restricted lumbar range of motion, preserved knee and ankle jerks. Pedal pulses were present and hip examination was not irritable. He noted restricted range of motion of the cervical spine and two plus upper extremity hyporeflexia but no pathological upper extremity reflexes.
[29] Claimant’s bundle p 205.
On 27 October 2021 Dr Nair reported Mr El-Kazzi remained troubled by cervical, lower back and worsening upper and lower extremity radicular symptoms.[30] He noted there was no pathological reflexes elicited.
[30] Claimant’s bundle p 203.
Mr El-Kazzi underwent CT guided left C5/6 perineural steroid injections on 2 November 2021 and 16 November 2021.[31] On 1 December 2021 Dr Nair reported the repeat MRI showed foraminal stenosis at C5/6 consistent with the clinical presentation. Further, he reported the MRI lumbar spine revealed that the L5/S1 disc was contacting the exiting nerve roots. He reported Mr El-Kazzi only had very short relief from the perineural block and he recommended a C5/6 anterior cervical discectomy and fusion.[32]
[31] Insurer’s bundle pp 405 and 406.
[32] Claimant’s bundle p 698.
Dr Yasmin Khan, occupational physician
Dr Yasmin Khan undertook a fitness to drive assessment on 8 December 2020.[33] She concluded Mr El-Kazzi was not fit to hold a conditional licence for private or commercial work because of his limited head turning, his limited sitting tolerances, pain and headaches.
[33] Claimant’s bundle p 413.
Dr Thomas Jarvis, urological surgeon
The claimant consulted Dr Jarvis on 13 July 2022 with possible neurogenic lower urinary tract dysfunction.[34]
[34] Insurer’s bundle p 358.
Dr Tim Ho, pain and rehabilitation specialist.
Dr Ho provided a report dated 12 October 2022 addressed to Dr Anil Nair. He referenced the accident in 2019 with a shoulder injury, neck and low back injury.[35] He reported Mr El-Kazzi had no benefit from a diagnostic injection to the cervical spine. He reported a bone scan showed L3-4 facet arthropathy and L5-S1 discopathy, although he commented the increased uptake was mild-to moderate and widespread. He noted no muscle wasting in the lower limb, but some tenderness over the lumbar facet joint around L5-S1. Otherwise, he noted no significant negative sensory or motor sign in the lower limb. He provided psychoeducation regarding chronic pain and noted he was awaiting approval for a pain programme.
[35] Insurer’s bundle p 68.
Liverpool Hospital clinical notes
On 3 September 2017 the claimant attended Liverpool Hospital when he fell backwards and hit his head on the wall. He had occipital tenderness, mild cervical spine midline tenderness but was able to move his neck freely with nil limb weakness.
The claimant attended the Gastroenterology Clinic at Liverpool Hospital on 1 November 2019 for evaluation of postprandial vomiting and intermittent diarrhoea. He came under the care of Dr Watson Ng where he was investigated for Crohn’s disease noting both his son and daughter have Crohn’s disease.
Mr El-Kazzi underwent an upper gastrointestinal endoscopy on 25 February 2021.[36] The oesophagus was normal. Dispersed, small non-bleeding erosion were found in the gastric body and in the gastric antrum. Biopsies were taken. The duodenum was normal. A biopsy was taken. Dr Kanazaki gastroenterologist reported the perianal and digital rectal examinations were normal. The terminal ileum contained a few scattered non-bleeding erosions. Biopsies were taken. The colon appeared normal.
[36] AALD pp 108 and 109.
Mr El-Kazzi underwent a colonoscopy on 4 April 2023.[37] Dr Watson reported the perianal and digital rectal examinations were normal. The colon and the terminal ileum appeared normal. Biopsies were taken. An endoscopy the same day showed the oesophagus, the stomach, and the first and second portions of the duodenum were normal. Biopsies were taken.[38]
[37] AALD p 94.
[38] AALD p 95.
Dr Nikunj Parikh, pain medicine physician
Mr El-Kazzi saw Dr Parikh on 4 May 2023 and again on 2 August 2023.[39] He reported pain in the lower back and pain in the neck. The back pain is worse after 30 minutes of sitting and is assisted by standing. Mr El-Kazzi can only drive for up to 20 minutes at a time.
[39] Claimant’s bundle p 1,301.
Dr Parikh reported the cervical spine range of motion was restricted to 45º on the right with tenderness over the paraspinal region of both sides of the neck. Mr El-Kazzi was tender in the sacroiliac joint on the left side of his lower back. He reported improved shoulder pain and full range of motion.[40]
[40] Claimant’s bundle p 1,303
Dr Parikh’s impression was of:
· chronic pain of neck and lower back;
· adjustment disorder with depression and anxiety;
· pain associated disability affecting all domains;
· severe pain catastrophizing, and
· possible adverse developmental history.
Dr Parikh recommended Mr El-Kazzi see a psychologist and attend hydrotherapy. He recommended an online course in self-management strategies to manage his pain. He prescribed Gabapentin and Panadol Osteo.
Imaging
Full spine and pelvis X-ray, 25 August 2012
The clinical history was recorded as “pain”. The findings were as follows:
“Assessment of the spine reveals preservation of vertebral body and intervertebral disc height. Large flowing osteophytes anteriorly at the C4/5 and C5/6 levels reflect DISH. The pelvis shows no osseous lesion….”[41]
CT Pelvis, 8 November 2016
[41] Insurer’s bundle p 383.
The report concludes:
“There are mild degenerative changes involving both sacroiliac joints, both hip joints and the lumbosacral junction”.[42]
X-ray and ultrasound right shoulder 23 May 2018
[42] Insurer’s bundle p 421.
The impression reported was as follows:
“There is tendinopathy of the subscapularis and supraspinatus tendons. There is anterior full thickness tear of the supraspinatus tendon with subacromial/subdeltoid bursitis and sonographic impingement. There is evidence of synovitis at the acromioclavicular joint ? degenerative.”[43]
X-ray right shoulder, 22 November 2018
[43] Insurer’s bundle p 356.
The findings were reported as follows:
“No acute bony injury. Right humeral head is intact and normally located.
Right glenoid is intact.
Mild decreased glenohumeral joint space likely related to mild degenerative changes.
Right AC joint is intact and normally located with mild degenerative changes.”[44]
Ultrasound right shoulder, 22 November 2018
[44] Insurer’s bundle p 353.
The findings were interpreted as follows:
“Mild degenerative changes of the left glenohumeral and AC joints.
Interval increase in size of anterior full-thickness tear of the supraspinatus tendon.
Subacromial bursitis, subscapularis tendinosis and mild left AC joint synovitis.”[45]
X-ray left shoulder, 21 December 2018
[45] Insurer’s bundle p 354.
The findings were reported as follows:
“The humeral head is normally positioned within the glenoid cavity, no focal bony abnormality demonstrated.
There is no subacromial bone spur or subacromial calcification demonstrated.
No significant abnormality demonstrated within the AC joint.”[46]
Ultrasound left shoulder, 21 December 2018
[46] Insurer’s bundle p 349.
The report concluded:
“Subacromial impingement, with subacromial-subdeltoid bursitis.
Supraspinatus tendinosis.
No rotator cuff tendon tear detected.”[47]
CT cervical spine, 9 November 2019
[47] Insurer’s bundle p 350.
The report concluded: “Normal alignment of the cervical spine with no fracture”.[48]
X-ray and MRI of the lumbar spine, 12 December 2019
[48] Insurer’s bundle p 44.
The impression recorded was as follows:
“1. Multilevel disc degeneration and mild diffuse disc bulge L3/4, L4/5 and L5/S1. No disc protrusion.
2. No central canal, lateral recess or foraminal stenosis.
3. Lumbosacral facet joint arthritis noted.”[49]
X-ray and MRI of the cervical spine, 13 January 2020
[49] Insurer’s bundle p 47.
The report concludes:
“At C5/6 level, there is mild broad based disc bulge and bilateral uncovertebral hypertrophy and mild thickening of ligamentum flavum, which has resulted in moderate bilateral foraminal narrowing. No significant central canal narrowing. Also at C3/4 level, there is mild to moderate bilateral uncovertebral hypertrophy, which has resulted in mild foraminal narrowing. No significant central canal narrowing.” [50]
X-ray and MRI of the right shoulder, 13 January 2020
[50] Insurer’s bundle p 60.
The comment on the report reads:
“1. Moderate tendinosis of the supraspinatus tendon with full-thickness tear of the anterior fibres.
2. Subacromial bursitis.
3. Degeneration of AC joint.”[51]
X-ray and MRI of the left shoulder, 13 January 2020
[51] Insurer’s bundle p 170.
The comment on the report reads:
“1. Complete tear of the supraspinatus tendon … with retraction of torn tendon.
2. Moderate subacromial bursitis and glenohumeral joint effusion.
3. Degeneration of AC joint.”[52]
X-ray and ultrasound of the left shoulder, 15 May 2020
[52] Insurer’s bundle p 171.
The impression reported is as follows:
“The repaired supraspinatus tendon appears intact. There is mild biceps tendinosis. There is a small amount of fluid in the subacromial-subdeltoid bursa with some bunching on abduction”.[53]
X-ray and ultrasound of the right shoulder 16 December 2020
[53] Insurer’s bundle p 61.
The ultrasound reports concluded:
“There is no discrete tear of the rotator cuff. The rotator cuff in particular supraspinatus and subscapularis are heterogeneous in appearance, presumably postoperative feature or mild tendinosis.”
The X-ray report concludes:
“AC joint is wishing normal limits. Acromion type 1. There are no features of significant degenerative OA (osteoarthritis) of the glenohumeral joint. No suspicious osseous lesion.”[54]
CT Enterography, 26 April 2021
[54] Insurer’s bundle p 62.
The clinical information was “Diarrhoea. Ileal ulcers. Crohn’s?”. The impression recorded was as follows:
“1. No evidence of active small bowel Crohn’s disease or Crohn’s related complications.
2. Probable liver haemangiomas.” [55]
MRI of the cervical and lumbar spine, 2 November 2021.
[55] Insurer’s bundle p 410.
The report concludes:
“Multilevel degenerative disc disease. Facet arthropathy, most evident at C5/6 on the left and C2/L3 on the right. Moderate bilateral foraminal narrowing at C5/C6 with potential nerve root impingement. No neural impingement elsewhere. Subcutaneous lipoma posterior neck.”[56]
CT scan of the lumbosacral spine, 15 September 2022
[56] Insurer’s bundle p 64.
The impression recorded was as follows:
“1. No evidence of neural impingement within the lumbar spine.
2. Multilevel degenerative changes of the facet joints, most significant at L2/3 on the right (moderate).”[57]
MRI Cervical spine, 27 October 2023
[57] Insurer’s bundle p 404.
The report concludes:
“Moderate bilateral foraminal narrowing at the C5/C6 level, with possible impingement of the exiting C6 nerve roots, which has worsened when compared with the prior scan of 02/11/2021.
Mild left sided foraminal narrowing at the C3/C4 level, without neural impingement, similar in appearance to the prior study.”[58]
MRI lumbar spine, 27 October 2023
[58] Claimant’s bundle p 1,305.
The report concludes:
“Mild degenerative disc disease and facet joint arthropathy in the mid/lower lumbar spine as described without significant associated central canal stenosis or neural impingement.”[59]
Medico-legal reports
Dr Richard Powell, orthopaedic surgeon
[59] Claimant’s bundle p 1,306.
Dr Powell assessed the claimant and reported on 2 September 2021.[60] He diagnosed the following:
· musculoligamentous injury of the cervical spine and aggravation of minor underlying spondylytic change. On examination he noted mild tenderness and stiffness but no signs of radiculopathy.
· Soft tissue injury of both shoulders incorporating rotator cuff tears on a background of underlying rotator cuff tendinopathy, subacromial bursitis and AC (acromioclavicular) joint degeneration.
· Musculoligamentous injury to the lumbar spine and aggravation of underlying changes of lumbar spondylosis.
[60] Insurer’s bundle p 26.
Dr Powell concluded the accident resulted in aggravation of the pre-existing degenerative disease processes involving the cervical spine, lumbar spine and both shoulders. He considered the treatment undergone by the claimant to be reasonable and necessary. He assigned a DRE cervicothoracic category 1 with a 0% WPI, a DRE lumbosacral category 1 with a 0% WPI and 2% WPI for each shoulder, giving rise to a total 4% WPI.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 19 October 2023 in support of the application for review.[61]
[61] Claimant’s bundle p 3.
The claimant does not take issue with the assessment of the cervical spine injury assessed at 5% WPI, or with the assessment of each shoulder at 2% WPI. The claimant submits there was an error in Medical Assessor Berry’s assessment of the lumbar spine at 0% WPI.
The claimant submits the evidence demonstrates that the claimant meets the criteria for DRE Lumbosacral Spine Impairment category II or a DRE Thoracolumbar spine Impairment category II at the very least. The claimant submits to be categorised within the DRE lumbosacral category II the following is required:
“The clinical history and findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed by a physician, non-uniform loss of range of motion, or non-verifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity.”
The claimant submits the records of the treating doctors are compatible with a specific injury and include intermittent or continuous muscle guarding, that there is non-uniform loss of range of motion, and non-verifiable radicular complaints. The claimant submits the correct assessment would have been DRE category II which equates to a 5% WPI.
Insurer’s submissions
The insurer provided submissions dated 12 May 2022 in respect of the permanent impairment dispute.[62]
[62] Insurer’s bundle p 9.
The insurer submits the radiology of both shoulders demonstrated degeneration consistent with age-related changes and further submits the bilateral nature of the shoulder pathology suggests a degenerative origin of the condition rather than a traumatic one.
The insurer relies upon the opinion of Dr Powell who assessed a 2% WPI for each shoulder based on a slight reduction of range of movement. He found mild tenderness and stiffness on examination of the lumbar spine and the cervical spine which did not give rise to any assessable impairment.
The insurer submits on the balance of probabilities the claimant sustained soft tissue injuries to his cervical spine, lumbar spine and shoulders caused by the accident which exacerbated the pre-existing pathology. The insurer submits there is no evidence of gastrointestinal injury or impairment.
The insurer provided submissions dated 1 November 2023 in response to the application for review addressing the test to be determined by the Delegate, that is, whether there is a reason to suspect the assessment of Medical Assessor Berry was incorrect in a material respect.[63]
[63] Insurer’s bundle p 1.
In assessing spinal impairment, the insurer notes clause 6.125 of the Guidelines states that to determine the correct DRE category, a medical assessor may start with table 6.7 of the Guidelines and use that table in conjunction with the DRE descriptors on pages 102 to 107 of the AMA 4 Guides (as clarified by the Guidelines).
The insurer notes the difference between DRE I and DRE II is the presence of muscular guarding, nonuniform loss of range of motion or non-verifiable radicular complaints. In assessing the lumbar spine, the insurer submits Medical Assessor Berry noted the claimant reported back pain and stiffness but no radicular complaints. The examination did not reveal any significant clinical signs such as muscle guarding or dysmetria or neurological impairment. Therefore, the insurer submits Medical Assessor Berry correctly assessed the lumbar spine in the DRE I category.
MEDICAL EXAMINATION
Mr El-Kazzi was examined by Medical Assessor Gibson at her rooms at St Leonards.
Mr El-Kazzi attended as arranged. He said he travelled from his home by train, the trip taking about an hour. He was seen over 1 hour and 20 minutes.
Past medical history
When asked about his past medical history, Mr El-Kazzi maintained that he had had some intermittent neck and back pain prior to the accident. He said that these symptoms related to his occupation as a driver. He said he was visiting a physiotherapist/chiropractor on a fortnightly basis for several years for "health maintenance and adjustments."
He had surgery for septal deviation over 10 years ago.
Mr El-Kazzi was diagnosed with hypertension approximately five years ago and is medicated for this condition.
He was diagnosed with diabetes over six years ago and takes oral medication.
There was no history of any prior work injuries. There was no history of any prior motor accidents. There were no relevant medical or surgical issues. He said there had been no prior claims for accident or injury.
Mr El-Kazzi denied that he was taking any medication prior to the accident.
When asked about the Panania Medical Centre records regarding his shoulders, he said it was "just inflammation" and he had a needle and then it was "fixed."
By way of summary, Mr El-Kazzi denied having any ongoing issues, apart from hypertension and diabetes leading up to the accident.
Personal history
Mr El-Kazzi was born in Lebanon where he studied to become an electrician. He said after his brother died he left for Australia in 1989. After arriving here he managed a convenience store for eight years and then drove a taxicab for 15 years.
Over the two years before the accident, he was working as an Uber driver 12 hours a day, six days a week. He said he has not worked in this capacity, or in fact, any capacity since the accident.
Medical Assessor Gibson asked Mr El-Kazzi about driving given Dr Khan noted he was unfit for private or commercial driving. Mr El-Kazzi said he still picks up his children from school. He couldn’t recall his licence being revoked. However, he does feel that his restricted neck movements restrict his driving capacity.
He lives with his wife, his mother and his three children aged 14, 19 and 21 years. His wife isn’t engaged in any employment outside of the house. His mother is disabled, and his wife is her carer.
Mr El-Kazzi said he had tried to do some gardening but this precipitated neck pain. And even stirring food on the stove can cause neck symptoms to the extent that his sleep is disturbed.
The accident
Mr El-Kazzi had been driving a Toyota Camry sedan with his seat belt fastened. There were two Uber passengers in the vehicle. He was at a traffic light on Harris Street, Pyrmont. Another vehicle lost control, crashed over the median barrier, and hit the car next to him pushing it into the driver's side of Mr El-Kazzi’s car, which was then pushed 10 metres along the road. The other car then caught on fire.
Mr El-Kazzi said he didn’t react at the time, as it all happened so suddenly. There was no air bag deployment as it was a side impact. Bystanders opened the door of his car and he was then able to get out.
His car was towed from the scene and later written off for insurance purposes.
Mr El-Kazzi indicated at the time he noted some right forearm dysesthesia and left anterior shoulder pain.
He was conveyed via ambulance to St Vincent's Hospital and then discharged home after eight hours.
When asked by Medical Assessor Gibson about the lack of mention of any additional injuries, he responded that he was pretty sure he had complained about his back and left shoulder.
Treatment following the accident
Mr El-Kazzi visited his regular chiropractor, Mr Jimmy Bui, but was advised he needed to see a GP, so Dr Ijaz Khan was recommended. He visited this doctor on 11 November 2019.
Following the consultation with Dr Khan Mr El-Kazzi visited his regular GP, Dr Faraj on 15 November 2019.
He had ongoing chiropractic treatment. He visited an exercise physiologist, Domenic Nasso in 2020, but a lot of the treatment had been online due to COVID. There was face-to-face treatment with Navneet Mahajan from 5 January to 9 November 2021. Mr El-Kazzi said there was only slight improvement with this treatment and he found some of the exercises recommended aggravated his neck pain.
He had physiotherapy and hydrotherapy in 2021.
In November 2021, Mr El-Kazzi was referred to Dr Herald, an orthopaedic surgeon. Dr Herald performed left rotator cuff repair on 21 February 2020 and right shoulder rotator cuff repair on 25 September 2020.
Mr El-Kazzi was then referred to spinal surgeon Dr Nair who he had visited on 26 August 2020. He also saw Dr Tim Ho, a pain physician.
Current complaints
Mr El-Kazzi described his current complaints as including neck pain, which he finds is present most of the time, and he rated at 7-8/10 severity. He finds the pain is worse after activity.
There was pain spread over the right trapezius and right upper back, and he said there was muscle spasm in this region, which he described as being "like a rock." There were no additional upper limb symptoms referred from the neck.
There was left-sided low back pain which spreads to his left buttock, left hip and lateral thigh and as far as the mid-calf. When asked about the referred pain to his left leg, Mr El-Kazzi said he had mentioned this to Medical Assessor Berry. The low back pain is present most of the time and is rated at 6-9/10 in severity. He finds his symptoms are worse with gardening or prolonged sitting, and following these activities he may experience worsening symptoms for about two weeks.
There is still pain over both shoulders, right greater than left.
He says his gastrointestinal issues were now "all good”, so resolved.
Mr El-Kazzi currently takes four to eight paracetamol tablets per day, although sometimes he takes non. He had last taken the medication yesterday. He said he had also been prescribed a stronger analgesic medication, as a patch, but as this didn’t work well he stopped taking it. He added that he hopes Dr Nair will "do something to my neck."
Physical examination
Mr El-Kazzi was right handed. He was 190cm tall and weighed 93kg. He had a normal gait. He was able to walk on heels and toes. He could squat to half normal, complaining of low back and leg pain.
On examination of the neck, Mr El-Kazzi complained of predominantly right-sided neck and trapezial pains. Movements were repeated on multiple occasions during the assessment. Flexion and extension was to one-half of normal, lateral flexion was two-thirds of normal and lateral rotation was to two-thirds of normal. There was no muscle spasm or guarding, despite the reported symptoms, and there was no asymmetry of movements.
On examination of the upper limbs, there was normal power, sensation and reflexes. Circumferential measurements were consistent with right hand dominance, 27cm at the arms, 28cm right forearm, 27cm left forearm.
On examination of both shoulders, there was diffuse pain bilaterally and some tenderness over the right trapezius. There was bulging of the right biceps. Active shoulder movements were measured with a goniometer as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
140°
150°
Extension 50° 55° Internal Rotation 60° 70° External Rotation 70° 80° Abduction 130° 140° Adduction 40° 50°
The movements were repeated on multiple occasions, and they were consistent. When asked why he felt that his movements today were not as good as when seen by the previous assessor, Mr El-Kazzi stated that a goniometer was not used at the previous assessment.
On examination of the low back, he was tender centrally and paracentrally. Flexion and extension was to half of normal range, lateral flexion was to half of normal range bilaterally and rotation was to normal range bilaterally. There was some guarding with spinal movements.
On examination of the lower limbs, circumferential measurements were 40cm at the thigh, and 37cm at the calf. Power and reflexes were normal bilaterally. Sensation was normal on the right, but there was reduced sensory appreciation globally over the entire left leg, although this was more prominent over the lateral thigh and calf. Neurotension signs were negative bilaterally.
The abdominal examination was unremarkable.
PANEL DETERMINATION
Consistency of presentation
The claimant’s presentation when examined by Medical Assessor Gibson was straightforward and consistent in his presentation.
Diagnosis and causation
Mr El-Kazzi was involved in the accident on 9 November 2019 whilst working as an Uber driver. He had been stationary at traffic lights when another driver lost control and crashed over the median barrier, and then collided with a car next to him which was then pushed into the driver's side of Mr El-Kazzi’s car, which was then pushed 10 metres along the road.
On the day of the accident, Mr El-Kazzi was recorded as complaining of neck pain and altered sensation in his right arm, by ambulance personnel and there were neck complaints noted in the records from St Vincent’s Hospital. It was not until he visited his GP, Dr Faraj on 15 November 2019 that left shoulder and left lower back symptoms were also recorded. When asked about this, he responded that he had complained of his low back and left shoulder earlier on at the hospital. In any event the Panel notes left shoulder and low back symptoms were record by Dr Faraj only six days post-accident and does not consider the recorded lack of complaint at the hospital to be significant. There has been a consistency of complaint thereafter and the claimant has undergone various diagnostic investigations and accessed various treatment modalities.
At assessment by the panel there were complaints in relation to the neck, low back and both shoulders.
Whilst Dr Nair reported lower extremity radicular symptoms neither Medical Assessor Berry nor Medical Assessor Gibson found radicular symptoms in the lumbar spine. There is some variation between the assessments undertaken by Medical Assessor Berry and Medical Assessor Gibson. Whilst Medical Assessor Berry reported dysmetria in the cervical spine Medical Assessor Gibson did not and whilst Medical Assessor Gibson observed guarding in the lumbar spine Medical Assessor Berry did not. These findings have accounted for the differing assessments of permanent impairment.
The Panel finds the claimant sustained soft tissue injuries of the cervical and lumbar spine with aggravation of the pre-existing degenerative change caused by the accident.
The Panel notes the claimant had pre-existing degenerative change of both shoulders as evidenced by the ultrasounds he underwent in 2018 which demonstrated a full- thickness tear of the supraspinatus tendon of the right shoulder and impingement, bursitis and tendinosis of the left shoulder. Nevertheless, there was no prior assessment of shoulder impairment on which a deduction could be based.
The Panel concurs with the opinion of Dr Powell and finds the claimant sustained soft tissue injury of both shoulders with aggravation of underlying rotator cuff tendinopathy, subacromial bursitis and acromioclavicular joint degeneration caused by the accident.
The Panel is not satisfied any colorectal or gastrointestinal injury was caused by the accident where the claimant underwent investigation for vomiting and intermittent diarrhoea on 1 November 2019 at Liverpool Hospital, where an endoscopy undergone on 24 February 2021 was normal, where no abnormalities were found on examination by Dr Kanazaki and where an endoscopy and colonoscopy in April 2023 were also reported as normal. The claimant had pre-existing symptoms and no objective evidence of new pathology.
In any event Mr El-Kazzi no longer complains of any gastrointestinal symptoms and the abdominal examination was unremarkable.
PERMANENT IMPAIRMENT
Cervical [cervicothoracic] spine
There were complaints of pain or symptoms, but there were no clinical findings as detailed in Table 6.8, of the Guidelines. There was no radiculopathy or vertebral body compression or vertebral fracture. Therefore, the cervical spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.
Lumbar [lumbosacral] spine
There were complaints of pain or symptoms, and there were clinical findings as detailed in Table 6.8, of the Guidelines, namely pain with guarding. There was no radiculopathy and no vertebral body compression or vertebral fracture. Therefore, the lumbar spine injury would be assessed at DRE Impairment Category II, thus 5% WPI.
Shoulders
Shoulder movements were measured using a goniometer. Total upper extremity impairment (UEI) was calculated as below with reference to Chapter 3, Fig 38, 41, 44, AMA 4 Guides.
On the right there was 6% UEI which then converted to 4% WPI using Table 3, p 20, AMA 4 Guides. On the left there was 4% UEI which then converted to 2% WPI using Table 3, p 20, AMA 4 Guides.
Shoulder Movements Active ROM Measured
RIGHT
UEI% Active ROM Measured
LEFTUEI% Flexion 140° 2 150° 2 Extension 50° 0 55° 0 Internal Rotation 60° 2 70° 0 External Rotation 70° 0 80° 0 Abduction 130° 2 140° 2 Adduction 40° 0 50° 0
Applying the Combined Values Chart the Panel assesses a total WPI of 11%.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Berry dated 31 July 2023 and issues a new certificate determining that the following injuries caused by the accident give rise to a WPI which is greater than 10%:
· cervical spine – soft tissue injury with aggravation of pre-existing degenerative change;
· lumbar spine – soft tissue injury with aggravation of pre-existing degenerative change;
· left shoulder – soft tissue injury with aggravation of underlying rotator cuff tendinopathy, subacromial bursitis and acromioclavicular joint degeneration, and
· right shoulder – soft tissue injury with aggravation of underlying rotator cuff tendinopathy, subacromial bursitis and acromioclavicular joint degeneration.
The Panel finds the following injury was not caused by the accident:
· colorectal – gastrointestinal issues – upper and lower intestinal injuries/gastrointestinal issues.
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0
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