Emery v AAI Limited t/as GIO

[2024] NSWPICMP 478

DETERMINATION OF REVIEW PANEL

CITATION:

Emery v AAI Limited t/as GIO [2024] NSWPICMP 478

CLAIMANT:

Billie Emery

INSURER:

AAI Limited trading as GIO

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

Christopher Oates

DATE OF DECISION:

17 July 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Motor Accident Guidelines; causation; cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder, and legs; compression fracture; dispute related to the assessment of whole person impairment (WPI); Medical Assessor (MA) assessed 7% WPI; notwithstanding lack of contemporaneous complaint causation of injury to the cervical spine, both shoulders, and the left leg established where the pain arising from the thoracolumbar spine would have masked perception of pain in other body parts; no injury to right leg; Norrington v QBE Insurance (Australia) Ltd, and Briggs v IAG Limited t/as NRMA Insurance; cervical spine assessed as DRE cervicothoracic category I or 0% WPI; right shoulder WPI 2%; left shoulder injury resolved; left leg contusions resolved; in assessing injury to thoracic and lumbar spine, Medical Review Panel considered clause 6.146 of the Guidelines applies and not clause 6.151; endplate fracture of T12 assessed as DRE category II or 5% WPI; wedge compression fracture of the lumbar spine assessed as DRE category II also gives rise to 5% WPI; in accordance with clause 6.146 of the Guidelines the impairment to the thoracolumbar spine can only be allocated to one region of the spine (the highest region); both the thoracic and lumbar regions give rise to 5% WPI so the Medical Review Panel allocates the 5% WPI to the lumbar spine; Held – Medical Assessment Certificate revoked and certificate assessing 7% WPI issued.

DETERMINATIONS MADE:  

MOTOR ACCIDENT INJURIES ACT 2017

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%

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Bernard Tamba-Lebbie dated 15 November 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 7% which is not greater than 10%:

(a)    injury to the cervical spine – soft tissue injury;

(b)    injury to the thoracic spine – end plate fracture of T12;

(c)    injury to the lumbar spine – end plate compression fracture of L1, and

(d)    injury to the right shoulder – soft tissue injury.

2.     The Review Panel finds the following injures caused by the motor accident have resolved:

(a)    injury to the left shoulder – soft tissue injury, and

(b)    left leg – soft tissue contusions.

3.     The Review Panel finds the following injury was not caused by the motor accident:

A)   right leg injury.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

1. On 19 April 2019 Ms Billie Emery (the claimant) was a passenger in a vehicle driven by her husband travelling at 80kmph. Her husband fell asleep, and the vehicle veered off the road and ran into a ditch (the accident).

2. Ms Emery was 42 years of age at the date of accident and is now 47 years of age.

3. Mr Emery has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

4. AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Emery under the MAI Act.

5. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

6. The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained by Ms Emery as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

7. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]

   [1] Section 7.20 of the MAI Act.

8. The dispute as to permanent impairment was referred to Medical Assessor Bernard Tamba-Lebbie who issued a certificate dated 15 November 2023. It is that certificate which is the subject of this review.

9. The Review Panel issued a Direction to the parties on 24 January 2024 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 946 (hereafter described as claimant’s bundle). The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 129 (hereafter described as insurer’s bundle).

RELEVANT LEGAL AUTHORITY

1. 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 Motor Accident Guidelines (the Guidelines).

2. 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.[2]

   [2] Clause 1.2 of the Guidelines.

3. 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.”

4. Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

   (a)     loss or asymmetry of reflexes;

   (b)     positive sciatic nerve root tension signs;

   (c)     muscle atrophy and/or decreased limb circumference;

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

CERTIFICATE UNDER REVIEW

Certificate of Medical Assessor Bernard Tamba-Lebbie

1. Medical Assessor Tamba-Lebbie issued a certificate dated 15 November 2023.[3] The following injuries were referred to Medical Assessor Tamba-Lebbie for assessment as to permanent impairment:

   (a)    cervical spine – chronic non-specific cervical spine pain, stiffness and discomfort with associated recurrent cervicogenic tension headaches, secondary to an acute musculoligamentous strain (whiplash associated disorder level 2);

   (b)    leg – contusions to the legs;

   (c)    lumbar spine – chronic non-specific lumbar spine pain, stiffness and discomfort secondary to an acute ligamentous strain;

   (d)    shoulder – chronic right shoulder pain, stiffness and discomfort secondary to an acute rotator cuff tendon strain with associated persisting subacromial/subdeltoid bursitis;

   (e)    shoulder – soft tissue injuries to the left shoulder, and

   (f)    thoracic spine – chronic non-specific thoracolumbar spine pain, stiffness and discomfort.

   [3] Claimant’s bundle p 11.

2. Medical Assessor Tamba-Lebbie found the claimant had tenderness around the greater tuberosity and around the medial and lateral end of the clavicle. He also noted tenderness on the medial edge of the scapula.

3. He measured active range of movement (ROM) with a goniometer as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140° = 3% UEI	170° = 1% UEI
Extension	50° = 0% UEI	40° = 1% UEI
Adduction	40° = 0% UEI	40° = 0% UEI
Abduction	150° = 1% UEI	170° = 0% UEI
Internal Rotation	90° = 0% UEI	90° = 0% UEI
External Rotation	90° = 0% UEI	90° = 0% UEI

1. Medical Assessor Tamba- Lebbie found a 4% upper extremity impairment (UEI) of the right shoulder which converts to a 2% whole person impairment (WPI).

2. In respect of the lower extremity, he reported there were no scars visible on the legs.

3. Medical Assessor Tamba-Lebbie found the following injuries were caused by the accident:

   (a)    cervical spine – chronic non-specific cervical spine pain, stiffness and discomfort with associated recurrent cervicogenic tension headaches, secondary to an acute musculoligamentous strain (whiplash associated disorder level 2);

   (b)    thoracic spine – chronic non-specific thoracolumbar spine pain, stiffness and discomfort secondary to acute T12 endplate vertebral body fractures;

   (c)    lumbar spine – chronic non-specific lumbar spine pain, stiffness and discomfort secondary to an acute ligamentous strain and L1 chance fracture;

   (d)    shoulder – chronic right shoulder pain, stiffness and discomfort secondary to an acute rotator cuff tendon strain with associated persisting subacromial/subdeltoid bursitis;

   (e)    shoulder – soft tissue injuries to the left shoulder, and

   (f)    leg - contusions to the legs.

4. He found the following injuries caused by the accident had resolved:

   (a)    shoulder – soft tissue injuries to the left shoulder, and

   (b)    leg – contusions to the legs.

5. Medical Assessor Tamba-Lebbie found no spasm in the cervical spine, no dysmetria, no tension signs and alignment of the spine was normal. He assessed diagnosis-related estimate (DRE) category 1 or 0% WPI.

6. In the thoracic spine Medical Assessor Tamba-Lebbie found no spasm palpable, no dysmetria but not slightly reduced thoracic spine forward flexion and extension. Alignment of the thoracic spine was normal. He assessed DRE category 2 or 5% WPI.

7. In the lumbar spine Medical Assessor Tamba-Lebbie found spasm, no dysmetria and alignment of the spine was normal. He noted normal strength in knee flexion, extension and ankle flexion/extension. He noted straight leg raising of 80 degrees on the left and the right. The knee jerk was normal. The ankle jerk was normal. The plantars were downgoing. He assessed DRE category 2 or 5% WPI.

8. He concluded only one area of the spine can be used for calculating impairment and found the total spine impairment was 5% WPI.

9. He assessed a total 7% WPI.

REVIEW PROCEDURE

1. On 6 December 2023 Ms Emery sought a review of the medical assessment of Medical Assessor

2. On 11 January 2024 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).[4]

   [4] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.

3. 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] The review is by way of a new assessment of all matters with which the medical assessment is concerned.

   [5] Rule 128 of the PIC Rules.

4. On 11 March 2024 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE REVIEW PANEL

Application for personal injury benefits (the application)

1. In the medical certificate dated 10 June 2019 accompanying the Personal Injury claim form Dr Ratnam described the injuries as follows:

   “Whiplash injuries – neck and low back. Soft tissue injuries. R & L shoulders & wrists & hips. Contused chest & abdomen. Contused L knee and L ….. Anxiety & depression, contused L ankle”. [6]

Treating medical evidence

[6] Claimant’s bundle pp 138 and 690.

Dubbo Base Hospital

1. The claimant was admitted to Dubbo Base Hospital on 19 April 2019 and discharged the following day.[7] The triage notes it was a single vehicle accident into a ditch travelling at 80kmph. The side airbags deployed. The claimant was asleep and woke during the impact. She was complaining of lumbar pain, right rib and left forearm. She denied neck pain.

   [7] Claimant’s bundle p 212.

2. A previous history was noted of depression and low back pain.

3. A progress note on 19 April 2019 records:

   “Ct: spinal fracture confirmed on CT

   No obvious rib #

   No pneumothorax

   No obvious contusions

   No liver lac/spleen/kidneys

   No transection

   No free fluid

   Acute end plate fracture L1 with wedging

   End plate wedging of T12 - fracture extends vertically in toward spinous process

   Remainder of L spine intact and T spine intact

   No sacral #

   Manubrium/sternum normal”.[8]

   [8] Claimant’s bundle p 221.

4. Ms Emery was discharged in a thoracolumbar spine orthosis (TSLO) brace and referred to an orthopaedic clinic for follow up in Brisbane.

Princes Alexandria Hospital (PAH), Queensland

1. The claimant was reviewed in the Outpatient Orthopaedic Surgery clinic.[9]

   [9] Claimant’s bundle p 707.

Redbank Plaza Medical clinical notes

1. Ms Emery saw Dr Davarnia on 30 April 2019 when he noted the discharge summary.[10] Ms Emery had back pain and was taking analgesics. She also had pins and needles when lying down, but no weakness/numbness.

   [10] Claimant’s bundle p 135.

2. On 3 May 2019 Dr Davarnia report back pain, but symptoms were not getting worse. The claimant was to continue with the brace. On 14 May 2019 Dr Davarnia reported the claimant saw another specialist at PAH, no work for another four weeks and referred the claimant for bone density testing.

3. On 22 May 2019 Dr Davarnia, general practitioner (GP) recorded:

   “for 2 days left sided neck pain

   painful ROMs of neck

   pain doesn’t radiate to L upper limb

   No weakness/numbness upper limbs

   No fever, no headache, no dizzi, no flu symptoms

   Low back pain not bad, doesn’t take palexia daily

   …

   Cervical spine: restricted ROMs, tender L sided neck muscles

   L shoulder; satisfactory ROM’s, tender L trapezius.”[11]

   [11] Claimant’s bundle p 28.

4. On 4 November 2020 Dr Angiti, GP recorded:

   “wc – aus post worker

   Left shoulder pain since yesterday

   Tried to reach for a parcel from ULD and put it on conveyed belt

   Pain since then

   Not heavy parcel

   Denies previous shoulder pains”.[12]

   [12] Claimant’s bundle p 29.

5. The following day, 5 November 2020 Dr Angiti reported the pain was better and Ms Emery was willing to go back on full duties.

6. On 12 April 2021 Dr Biktor GP reported pain in the right hip after playing basketball the night before.[13]

   [13] Claimant’s bundle p 30

7. On 21 April 2022 Dr Davarnia reported “asked me to write that she has no symptoms (no back pains and no sore or swollen L leg) and there is no ongoing issues”. Dr Davarnia reported there was no abnormality detected on examination of the thoracic and lumbar spine and the examination of the left leg was normal. This was in the context of her application for work as a courier.[14]

   [14] Claimant’s bundle p 871

Dr Kamalaruban Ratnam, GP

1. Ms Emery saw Dr Ratnam on 24 May 2019 when he recorded a history of the accident and reported she was complaining of headaches and dizziness, sore neck, sore chest, sore back, sore abdomen, sore shoulders, left greater than right, sore right and left wrists, tingling in both wrists, sore left knee, sore left ankle, anxiety and depression, and sore right and left hips, left greater than right.[15]

   [15] Claimant’s bundle p 132

2. Dr Ratnam’s handwritten notes are difficult to read. On 25 June 2019 he reported neck pain and noted ROM was limited and painful. On 26 July 2019 he reported neck pain and shoulder pain with restriction of movement. He also noted the back was tender, stiff, restricted and painful.

3. On 7 January 2021 Dr Ratnam reported the claimant injured her left shoulder at work and on 18 January 2021 he reported continued pain and tenderness in the left shoulder.[16]

   [16] Claimant’s bundle pp 184-185.

Dr Babu Sadasivan, neurosurgeon

1. Dr Sadasivan reviewed Ms Emery on 11 July 2019 when she reported thoracolumbar region pain, neck and left shoulder pain.[17]

   [17] Claimant’s bundle p 23.

Dr Neal Singleton, orthopaedic fellow, PAH

1. On 11 September 2019 he reported Ms Emery was making good progress following a fairly classic bony chance fracture with a seatbelt injury resulting in a flexion-distraction injury.[18]

   [18] Claimant’s bundle p 48.

Guardian exercise rehabilitation

1. On 12 August 2019 it was reported Ms Emery had been immobilised in a brace for three months.[19] She was fearful of re-injury. A six week gym programme was recommended.

   [19] Claimant’s bundle p 164.

2. She completed an exercise physiology programme on 10 October 2019 to assist with her back injury.[20] She gained full time employment as a mail officer for Australia Post in November 2019.

   [20] Claimant’s bundle p 67

3. On 5 November 2020 it was reported Ms Emery had hurt her arm at work and needed a few days’ rest.[21] On 16 November 2020 she reported she had injured her shoulder at work “over reaching” into a cage. She returned to full duties. On 23 November 2020 it was reported she had no issue with full duties in regards to her back but had an unrelated issue with her shoulder which was aggravated whilst working.[22]

   [21] Claimant’s bundle p 55

   [22] Claimant’s bundle p 73

4. Ms Emery submitted a report of a work injury to the left shoulder on 6 January 2021.[23] She saw her GP the next day and was certified unfit for work.

   [23] Claimant’s bundle p 196

Dr Chanchal Gaur, GP

1. On 15 September 2022 Ms Emery consulted Dr Gaur after sustaining an Injury to her right shoulder at work.[24] She was carrying carpet on her right shoulder whilst walking up stairs. She had tenderness, pain and restriction of movement. She underwent physiotherapy treatment. On 15 December 2022 Dr Langah reported she had good and bad days but mostly she had shoulder pain at the end of the day. She was unable to abduct about 100 degrees.

   [24] Claimant’s bundle p 849

Imaging

1. X-ray thoracic spine, 19 April 2019 – the findings are reported as follows:

   “T12, L1 mild endplate fractures are demonstrated without retropulsion. No significant new wedging is seen.” [25]

   [25] Claimant’s bundle p 250

2. X-ray left forearm, 19 April 2019 – the findings are reported as follows:

   “The distal radius, ulna, scaphoid and lunate are normal. No metacarpal fracture is seen. Elbow joint space is normal.”[26]

   [26] Claimant’s bundle p 250

3. CT chest, abdomen and pelvis, 19 April 2019 – the conclusion is:

   “1.    No significant lung contusion or rib fracture or pneumothorax or dissection.

   2.Endplate fractures of T12 and L1 with subtle mild endplate wedging but without retropulsion. The T12 fracture extends in the base of the spinus process.” [27]

   [27] Claimant’s bundle p 251.

4. Ultrasound left shoulder, 11 January 2021 – the report concluded:

   “1.     Mild tendinosis of the infraspinatus. No rotator cuff tear.

   2.     Pectoralis major muscle appears normal. No evidence of tendon rupture”.[28]

   [28] Claimant’s bundle p 187.

1. X-ray lumbosacral spine, 13 May 2019 – the findings were recorded as follows:

   “The superior end plate compression fracture of T12 and L1 with approximately 15% loss of height anteriorly at the L1 level. Intervertebral disc heights have been obtained. No retropulsed osseous fragments. Minor lumbar curvature convex to the left. No spondylolisthesis.” [29]

   [29] Claimant’s bundle p 713.

2. X-ray lumbosacral spine, 10 June 2019 – the findings were recorded as follows:

   “The superior end plate compression fractures of T12 and L1 are again demonstrated. There is very subtle loss of height at the L1 level compared to the prior examination. Preservation of intervertebral disc space heights. No spondylolisthesis.”[30]

   [30] Claimant’s bundle p 712.

3. Right shoulder ultrasound, 23 September 2022 – the report concludes:

   “Calcific tendinitis of the subscapularis and supraspinatus tendons with associated bursitis.”[31]

Medico-legal evidence

[31] Claimant’s bundle p 796.

Dr James Bodel, orthopaedic surgeon

1. Dr Bodel assessed the claimant and provided a report dated 21 November 2022.[32]

   [32] Claimant’s bundle p 914.

2. He reported as a result of the accident the claimant suffered spinal injuries involving the neck, the thoracolumbar junction and the back, shoulder injuries principally to the right shoulder and contusions to the legs which had resolved.

3. Dr Bodel assessed the claimant as having DRE Cervicothoracic Category II level of impairment resulting in a 5% WPI on the basis there was asymmetry of movement and guarding but no clinical sign of radiculopathy.

4. He noted the fracture of the thoracolumbar junction involving T12 and L1 which is assessed as a multilevel structural compromise. Referring to clauses 6.144 and 6.146 of the Guidelines he noted the two compressed fractures are T12 and L1 across the junction between the thoracic and lumbar regions. He found the DRE Category IV or 20% WPI as there is no evidence of radiculopathy.

5. Dr Bodel assessed the right shoulder at 10% UEI which converts to 6% WPI.

6. Using the Combined Values Chart Dr Bodel assessed a total WPI of 29%.

Dr Uthum Dias, occupational physician

1. Dr Dias assessed the claimant and provided a report dated 17 January 2023. He found the claimant sustained an acute musculoligamentous strain to her cervical spine, an acute right shoulder rotator cuff tendon strain and acute endplate vertebral body fractures affecting her T12 and L1 vertebral bodies caused the accident. He also noted she sustained soft tissue injuries to her left shoulder and right and left lower limbs caused by the accident which had resolved.

2. He noted the right shoulder condition had been aggravated by work related injuries in February 2020 and in September 2022 and concluded 50% of her current right shoulder condition was because of the work-related aggravations. He assessed an UEI of 5% which correlates with a 3% WPI. He deducted one half from 3% WPI to arrive at a WPI of 2% for the right shoulder.

3. Dr Dias assessed a 5% WPI for the cervical spine, a 5% WPI for the lumbosacral spine, and 20% for the thoracolumbar spine on the basis of multilevel structural compromise given the claimant sustained fractures to two vertebral bodies.

4. He assessed a total WPI of 29%.

Dr Jude Ugwu, occupational physician

1. Dr Ugwu assessed the claimant and provided a report dated 22 March 2023.[33]

   [33] Insurer’s bundle p 3.

2. He diagnosed an L1 chance fracture of the vertebral body with a minimal height loss, associated with a whiplash type injury, shoulder pain/strain and hip pain/strain. He was unable to conclude that the neck, shoulder and hip strain conditions have persisted. He found her current shoulder conditions were not related to the accident.

3. He assessed the L1 chance fracture as 5% WPI.

Dr Frank Machart, orthopaedic specialist

1. Dr Machart assessed the claimant and provided a report dated 29 March 2023.[34]

   [34] Insurer’s bundle p 19.

2. Dr Machart concluded the claimant was treating for thoracolumbar fractures. He stated he could not see evidence of structural damage to the cervical spine, lumbar spine, left shoulder or right shoulder. In his view the force transmitted through the spine caused injury to the thoracolumbar spine but was not consistent with damage involving other areas of the body.

3. He also stated the exact pathology of the thoracolumbar injury was not clear where no
   X-rays, hospital assessment or treating doctor’s reports were available. Dr Machart declined to calculate WPI without better definition of the injury.

Dr Chris Rikard-Bell, consultant psychiatrist

1. Dr Rikard-Bell assessed the claimant and provided a report dated 17 April 2023. He diagnosed post-traumatic stress disorder following the accident and assessed a 5% WPI.

SUBMISSIONS

Claimant’s submissions

1. The claimant provided submissions dated 6 December 2023.[35]

   [35] Claimant’s bundle p 6.

2. The claimant submits Medical Assessor Tamba-Lebbie failed to afford procedural fairness in that he failed to refer to the reports of Dr Bodel dated 21 November 2022 and 15 December 2022 and the report of Dr Dias dated 17 January 2023 and made findings inconsistent with those made by Drs Bodel and Dias.

3. The Guidelines state:

   “6.131      Separate injuries to different regions of the spine must be combined; and

   6.132Multiple impairments within one spinal region must not be combined. The highest DRE category within each region must be chosen.”

4. The claimant relies upon the opinion of Dr Bodel. In his report dated 21 November 2022 at page 6 he stated:

   “The claimant has a DRE Cervicothoracic Category II level of assessable impairment in accordance with the description in Table 73 on page 3/110 of AMA 4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.

   She has a fracture of the thoracolumbar junction involving T12 and L1. This is assessed as an example of multilevel structural compromise. This is defined at Item 6.144 in the following matter:

   ‘Multilevel structural compromise must be interpreted as fractures of more than one vertebra. To provide consistency of interpretation of the meaning of multiple vertebral fractures the definition of a vertebral fracture includes any fracture of the vertebral body or of the posterior elements forming the ring of the spinal canal (the pedicle or lamina). It does not include fractures of transverse processes or spinous processes, even at multiple levels.’

   Further at Item 6.146 there is the following instruction:

   ‘Multilevel structural compromise or spinal fusion across regions is assessed as if it is in one region. The region giving the highest impairment value must be chosen. A fusion of L5 and S1 is considered to be an intervertebral fusion’.

   That is the case in this circumstance because the two compressed fractures are T12 and L1 across the junction between those two regions (thoracic and lumbar). In this circumstance, the regions are the same. The DRE Category rating is a DRE category IV as there is no evidence of radiculopathy and this attracts a 20% Whole Person Impairment for these fractures.”

5. The claimant submits Medical Assessor Tamba-Lebbie incorrectly applied the Guidelines. He assessed 5% WPI for the thoracic spine, 5% WPI for the lumbar spine, and 2% WPI for the right shoulder. However, he concluded impairment for the spine can only be allocated to one region of the spine. Therefore, only 5% WPI can be apportioned in total to that area. He assessed a total 7% WPI.

Insurer’s submissions

1. The insurer provided submissions dated 4 May 2023.[36]

   [36] Insurer’s bundle p 3

2. The insurer submits the accident did not cause the injuries claimed and disabilities to the neck, shoulders and legs.

3. The insurer notes the following:

   (a)    no contemporaneous complaint of symptoms in the neck, shoulders or legs in the clinical records of Dubbo Hospital, clinical records of Redbank Plaza Medical Centre, or the PAH fracture clinic;

   (b)    the first documented reference to complaints of symptoms in the neck and shoulders was when the claimant first attended her new GP at ACMED on 14 May 2019;

   (c)    there was no complaint of symptoms in the neck, shoulders or legs in the clinical records of Guardian Exercise until 5 November 2020, when the claimant reported she had hurt her arm at work;

   (d)    the claimant sustained left shoulder injuries in the course of her employment due to lifting boxes on 3 November 2020 and 6 January 2021 (pp 68-79);

   (e)    the claimant required time off work, and an ultrasound from January 2021 disclosed tendinosis in a shoulder tendon. She made a workers compensation claim and received physiotherapy treatment, and

   (f)    the claimant sustained a right shoulder injury in September 2022 carrying a carpet roll (p 18).

4. The insurer provided submissions dated 14 December 2023 in respect of the review. The insurer submitted a re-examination was required where:

   (a)    the Medical Assessor accepted causation in respect of the cervical spine and right shoulder, however, provided no reasoning whatsoever as to how causation was established;

   (b)    the insurer directly raised causation in respect of the cervical spine and right shoulder impairment in its submissions;

   (c)    it is evident on the treating material that the claimant made no contemporaneous complaint of shoulder or neck injury, until one month post-accident;

   (d)    the claimant sustained a subsequent right shoulder injury in September 2022, carrying a carpet roll, and

   (e)    the Medical Assessor did not put those inconsistencies to the claimant on examination, and moreover, disregarded it entirely in respect of the reasoning as to causation.

MEDICAL EXAMINATION

1. Ms Emery was assessed by Medical Assessor Kenna at the medical suites at the Commission on 19 June 2024. The assessment was initially scheduled to take place on 17 April 2024, but Ms Emery missed her flight. Ms Emery attended alone.

History

Pre-accident medical history and relevant personal details

1. Ms Emery is a 47-year-old married female who emigrated from New Zealand some 13 years ago who was involved in a motor vehicle accident on 19 April 2019. Her husband is a concreter, and they reside at Ipswich. She works as a Production Manager in Brisbane. Previously she has done a range of other jobs including as a courier driver for FedEx and as a COVID tester.

2. Ms Emery denies any prior or subsequent history of motor vehicle accidents. She also has no prior history of injury to either the cervical, thoracolumbar spine or right shoulder prior to the accident of 19 April 2019.

3. Since the accident, some five years ago, Ms Emery has had no surgery or procedures, other than one injection into the right shoulder. It provided little benefit and was not repeated.

4. Ms Emery acknowledged at the time of the examination that any soft tissue injuries to both legs and any soft tissue injury to the left shoulder have fully resolved.

History of the accident

1. On 19 April 2019, Ms Emery was a passenger in a car driven by her husband. She was wearing a seat belt. They were on their way to Melbourne. It was a family trip with her husband, three sons and daughter-in-law. Ms Emery had fallen asleep. Unfortunately, her husband, who was the driver, also fell asleep and veered off the road. The estimated speed of travel at that point in time was 80kmph. The car ran into a ditch.

2. Ambulance attended and Ms Emery was taken to nearby Dubbo Hospital.

History of symptoms and treatment following the accident

1. Dubbo hospital Emergency Department listed complaints of lumbar pain, right rib and left forearm pain. Ms Emery denied neck pain.

2. She was admitted to Dubbo Base Hospital with pain focused on the thoracolumbar junction.

3. X-rays taken on 19 April 2019 confirmed endplate fractures of T12 and L1. An X-ray of the lumbosacral spine dated 13 May 2019 confirmed the superior end plate compression fracture of T12 and L1 with approximately 15% loss of height anteriorly at the L1 level.

4. A further X-ray taken on 10 June 2019 reconfirmed the superior endplate fractures of T12 and L1 with subtle loss of height at L1 compared to the prior examination.

5. There appears to be no further compression as a subsequent x-ray on 5 August 2019 indicated superior endplate fractures of T12 and L1 which were unchanged.

6. The only clear measurement noted was a 15% loss of height anteriorly at L1 referred to in the X-ray report of 13 May 2019 with serial x-rays confirming no further compression over time.

7. Ms Emery was discharged from Dubbo Base Hospital the following day after investigations, with a thoracolumbar brace.

8. Ms Emery returned to Queensland and came under the care of her general practitioner, Dr Ratnan, of Redbank but was also referred to the PAH where she attended an orthopaedic surgeon on two occasions and attended in-house physiotherapy.

9. Ms Emery used the brace for an initial projected 8-12 weeks post-accident, but subsequently ended up using the brace for about six months due to persistent symptoms.

10. Dr Ratnan referred Ms Emery to a shoulder specialist, who recommended no specific treatment. The left shoulder issue subsequently fully resolved but as noted, the right shoulder continued to be problematic, although this was also as a result of the work she was doing.

11. Some six months after the accident she returned to Australia Post but states she has learnt to live with the shoulder and back soreness.

Current symptoms

1. In the five years which have elapsed since the accident any initial bruising or contusions to either leg have resolved, as have symptoms pertaining to the left shoulder.

2. Ms Emery complains of moderate pain localised to the right shoulder and cervical spine, with no referral into either upper or lower extremities.

3. There is no pain involving the central lower back, but Ms Emery has pain at the thoracolumbar junction which she describes as mild to moderate in intensity, but with only very limited referral.

4. Ms Emery notes that her symptoms of spinal pain are still problematic and are aggravated by any prolonged sitting or walking, and just general movement. Her symptoms can fluctuate day to day and she will either take time off work or take Panadol or Nurofen as required, to go to work.

5. Ms Emery takes Panadol or Nurofen on an as need basis.

Clinical examination

1. Medical Assessor Kenna made findings on clinical examination including specific measurements of ROM of each of the injuries assessed.

Cervical spine (cervicothoracic)

1. There was no muscle guarding or spasm present. There was a symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.

2. There were no neurological deficit in either upper limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

MOVEMENTS	RANGE EXHIBITED
Flexion	10% restriction
Extension	10% restriction
Rotation to the right	10% restriction
Rotation to the left	10% restriction
Lateral bending to the right	10% restriction
Lateral bending to the left	10% restriction

Neurological tests

Reflexes

Reflex	LEFT	RIGHT
Triceps jerk	Normal	Normal
Biceps jerk	Normal	Normal
Brachioradialis	Normal	Normal

Sensation

1. Sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

Muscle wasting

LEFT (cm)	RIGHT (cm)
Upper arm	28	28
Forearm	23	23

1. There was nil muscle wasting.

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	Normal	Normal
C5	5/5	Normal	Normal
C6	5/5	Normal	Normal
C7	5/5	Normal	Normal
C8	5/5	Normal	Normal
T1	5/5	Normal	Normal

5 is active movement against gravity with full resistance;

4 is active movement against gravity with some resistance, and

3 is active movement against gravity only, without resistance.

Dural tension tests

TEST	RIGHT	LEFT
Passive neck flexion	Normal	Normal
Brachial plexus stretch	Normal	Normal

Thoracic spine (thoracolumbar)

1. On inspection of the thoracic spine posture was normal. There was no tenderness on palpation of the thoracic spine and no muscle guarding or spasm. There was no neurological deficit evident in either upper limb. On formal examination of ROM there was full range of movement as follows:

MOVEMENT	RANGE OF MOTION
Flexion	100% full
Extension	100% full
Side bending to the right	100% full
Side bending to the left	100% full
Rotation to the left	100% full
Rotation to the right	100% full

Lumbar spine (lumbosacral)

1. There was no muscle guarding or spasm present. There was a full range of motion and no asymmetry present.

2. There was no neurological deficit evident in either lower limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

4. On ballottement there was no muscle spasm, and no paravertebral gutter increase in muscle tone.

5. Ms Emery complained of discomfort on palpation but no muscle spasm was produced. There was no evidence of asymmetry. Reproduction of symptoms was localised to the thoracolumbar junction.

6. On examination of range of movement there was full range of movement as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	100% full
Extension	100% full
Rotation to the right	100% full
Rotation to the left	100% full
Lateral bending to the right	100% full
Lateral bending to the left	100% full

Neurological tests

Reflexes

REFLEX	LEFT	RIGHT
Knee jerk	Normal	Normal
Ankle jerk	Normal	Normal

LEFT	RIGHT
Sciatic nerve stretch (straight leg raise)	Normal	Normal
Femoral nerve stretch (prone knee bending)	Normal	Normal

Sensation

1. Sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

Muscle wasting

LEFT (cm)	RIGHT (cm)
Thigh (measured 10cm above the superior pole of the patella)	48	48
Calf	46	46

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	Normal	Normal
L4	5/5	Normal	Normal
L5	5/5	Normal	Normal
S1	5/5	Normal	Normal

5 is active movement against gravity with full resistance;

4 is active movement against gravity with some resistance, and

3 is active movement against gravity only, without resistance.

Muscle atrophy

Thigh	Left = right
Calf	Left = right

1. No unilateral muscle atrophy present.

Dural tension tests

TEST	RIGHT	LEFT
Prone knee bend	Normal	Normal
Straight leg raise	Normal	Normal
Slump	Normal	Normal

Both legs

1. Any initial soft tissue injury to either leg, such as brusing, or abrasions have long since resolved as clinical examination of both legs was normal.

Upper extremity

Right Shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	150°	Figure 38 (43)	180°	2
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	140°	Figure 41 (44)	180°	2
Internal Rotation	80°	Figure 44 (45)	90°	0
External Rotation	70°	Figure 44 (45)	90°	0
Total	4

1. All measurements were undertaken using a goniometer.

Left Shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

1. All measurements were undertaken using a goniometer.

2. Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.

3. The left shoulder was asymptomatic.

DIAGNOSIS AND CAUSATION

1. It is acknowledged that there is no contemporaneous complaint of symptoms in the neck, shoulders or legs in the clinical records of Dubbo Hospital. However, on 22 May 2019 Dr Davarnia of Redbank Plaza Medical Clinic reported left sided neck pain for two days, painful ROM of the neck and tender left sided neck muscles. On 24 May 2019 Dr Ratnam reported, amongst others, complaints pertaining to the neck, both shoulders, left knee and left ankle. The Application for personal injury benefits dated 10 June 2019 also refers to injury to the neck, right and left shoulders and the left knee and left ankle.

2. In Norrington v QBE Insurance (Australia) Ltd[37] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

   [37] [2021] NSWSC 548, Norrington.

3. Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[38] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”

   [38] [2012] NSWSC 650, Owen.

4. In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[39] where the Court stated at [64]:

   “The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”

   [39] [2016] NSWCA 229, McGiffen.

5. Even though there is lack of contemporaneous complaint about an injury it is not decisive. The Panel notes the injury to the thoracolumbar spine would have been very painful and undoubtedly occupied the claimant’s attention. Ms Emery was discharged from hospital in a brace with markedly restricted movement. As Ms Emery started to mobilise the Panel accepts she would have become more aware of pain in other body parts and this increasing awareness is evidenced by the complaints recorded by Dr Davarnia and Dr Ratnam about four and a half weeks after the accident. The Panel also finds that the analgesics Ms Emery was using to address the pain arising from the thoracolumbar spine would also have masked the perception of pain in other body parts. The Panel is satisfied the claimant sustained injury to the neck, both shoulders and the left leg caused by the accident.

6. The Panel finds the claimant sustained the following injuries caused by the accident:

   (a)    injury to the cervical spine – soft tissue injury;

   (b)    injury to the thoracic spine – end plate fracture of T12;

   (c)    injury to the lumbar spine – end plate compression fracture of L1

   (d)    injury to the right shoulder – soft tissue injury;

   (e)    injury to the left shoulder – soft tissue injury, and

   (f)    left leg – soft tissue contusions.

7. There is no record of injury or complaint of injury to the right leg and the Panel finds the claimant did not sustain injury to the right leg caused by the accident.

8. The following injuries have resolved:

   (a)    left leg – soft tissue contusions, and

   (b)    left shoulder – soft tissue injury.

PERMANENT IMPAIRMENT

Cervical spine

1. Ms Emery continues to complain of pain to the cervical spine. On examination Medical Assessor Kenna found no dysmetria, no muscle guarding, no asymmetry of range of motion and no radiculopathy or non-verifiable radicular complaints in the upper limbs. The claimant is assessed as DRE cervicothoracic category 1 giving a 0% WPI.

Right shoulder

1. The claimant has a 4% UEI. Whilst Ms Emery had a subsequent injury at work on 15 September 2022 the Panel considers this was an aggravation of an underlying condition but with no significant worsening of the condition. Noting the test of causation the Panel is satisfied the accident was a contributing cause which was more than negligible. The Panel notes there is no objective evidence of a subsequent impairment and in accordance with clause 6.34 of the Guidelines its possible presence is ignored.

2. Under Table 3 on page 20 of the AMA 4 Guides 4% UEI equates to a 2% WPI.

Left shoulder

1. The left shoulder was asymptomatic with no restriction of movement. The Panel finds injury to the left shoulder has resolved. Accordingly, there is no assessable impairment.

Left leg

1. The soft tissue contusions sustained to the left leg have resolved. Accordingly, there is no assessable impairment.

Injury to the thoracic and lumbar spine

1. The claimant sustained injury to the thoracic spine, namely a T12 endplate vertebral body fracture. He sustained injury to the lumbar spine, namely a wedge compression fracture of the L1 vertebra which was recorded as having 15% loss of anterior body height.

2. Clause 6.144 of the Guidelines defines multilevel structural compromise as fractures of more than one vertebra.

3. The Panel considers clause 6.146 of the Guidelines applies. It states that multilevel structural compromise or spinal fusion across regions is assessed as if it is in one region and the region giving the highest impairment value must be chosen.

4. Dr Bodel relied upon clause 6.151 of the Guidelines which provides that in the application of Table 6.7 regarding multilevel structural compromise, multiple vertebral fractures without radiculopathy are classed as category IV. However, the Panel finds clause 6.151 does not apply in circumstances where there are vertebral fractures across two adjacent spine regions which is specifically addressed in clause 6.146.

5. Clause 6.150 of the Guidelines states that one or more end-plate fractures in a single spinal region without measurable compression of the vertebral body are assessed as DRE category II. Therefore, the Panel finds the T12 endplate fracture would be assessed as DRE category II or 5% WPI.

6. The wedge compression fracture of the lumbar spine is assessed in accordance with chapter 3, page 102 of the AMA 4 Guides as DRE lumbosacral category II where there is less than 25% compression of one vertebral body. DRE lumbosacral category II also gives rise to a 5% WPI.

7. The impairment to the thoracolumbar spine can only be allocated to one region of the spine. In accordance with clause 6.146 the region with the highest impairment value must be chosen. Where both the thoracic and lumbar regions give rise to a 5% WPI, the Panel proposes to allocate the 5% WPI to the wedge compression fracture of the lumbar spine.

Body Part or System	AMA Guides/ The Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Cervical Spine DRE I	Ch3, pgs 102-107, AMA 4 Guides Tables 7 & 8 The Guidelines	Yes	0	0	0
2	Thoracic Spine DRE I	Ch3, pgs 102-107, AMA 4 Guides Tables 7 & 8 The Guidelines	Yes	0	0	0
3	Lumbar Spine DRE II	Ch3, pgs 102-107 AMA 4 Guides Tables 7 & 8 The Guidelines	Yes	5	0	5
4	Right shoulder	Ch3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	2	0	2

1. The Panel assesses a total 7% WPI.