Eskandar v CIC Allianz Insurance Limited
[2024] NSWPICMP 648
•12 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Eskandar v CIC Allianz Insurance Limited [2024] NSWPICMP 648 |
CLAIMANT: | Paulette Eskandar |
INSURER: | CIC Allianz Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 12 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident when her vehicle was rear-ended by the insured vehicle; dispute about the assessment of permanent impairment to the cervical spine, thoracic spine, lumbar spine, right shoulder and left shoulder; claimant re-examined by Medical Review Panel; Held – whole person impairment for all injuries was found to be 0%; Medical Assessment Certificate revoked and replacement certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 1. The issue determined by the Review Panel is 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%. Determinations 2. The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 3. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10% (0%): · cervical spine; · thoracic spine; · lumbar spine; · right shoulder, and · left shoulder. |
STATEMENT OF REASONS
BACKGROUND
On 23 December 2020, the claimant, Paulette Eskandar, was injured in a motor accident when the rear right side of her vehicle was hit at speed, by a vehicle insured by Allianz. The insured vehicle did not stop.
The claimant claimed that in the accident, she sustained injuries to her cervical spine, thoracic spine, lumbar spine, right shoulder and left shoulder.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of her claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for her physical injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Shahzad for assessment.
On 8 October 2023, the Medical Assessor issued a certificate finding that the claimant’s physical injuries were caused by the accident and that these injuries gave rise to a permanent impairment of 2%.
THE REVIEW APPLICATION
On 7 November 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. The review application was made within the time prescribed by
s 7.26(10) of the MAI Act.The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Michael Couch, Medical Assessor David Gorman and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION, LEGAL PRINCIPLES AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.5 of the Guidelines provides:
“An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.”
Clause 6.6 of the Guidelines provides:
“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 judgment.”
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the 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.”
MEDICAL ASSESSMENT UNDER REVIEW
In the certificate issued on 8 October 2023, the Medical Assessor found that the following injuries were caused by the accident:
· cervical spine – musculoligamentous injury to the cervical spine;
· thoracic spine – musculoligamentous injury to the thoracic spine;
· lumbar spine – lumbar spine disc bulges at the L2/3, L3/4, L4/5 and L5/S1 levels with contact of the L2/3 thecal sac;
· right shoulder – musculoligamentous injury to the right shoulder, and
· left shoulder – partial tear of the superior subscapularis tendon.
The Medical Assessor assessed the cervical spine injury as giving rise to a WPI of 5%. Referring to cls “6.31 to 6.33 of the SIRA Guides, Version 9”,[9] the Medical Assessor deducted the whole 5% from his assessment as being attributable to “prior objective evidence of a symptomatic permanent impairment in the cervical which predated the subject accident”.[10]
[9] Page 41 of the insurer’s bundle. The provisions of Clauses 6.31 to 6.33 are in the same terms in the Guidelines, Version 9.1. See pages 88 and 89.
[10] Page 41 of the insurer’s bundle.
The Medical Assessor therefore concluded the WPI of the cervical spine injury that related to the accident was 0%.[11]
[11] Page 41 of the insurer’s bundle.
The Medical Assessor assessed the thoracic spine injury as DRE thoracolumbar Category I giving rise to a WPI of 0%.[12]
[12] Page 41 of the insurer’s bundle.
The Medical Assessor found there was an injury to the lumbar spine caused by the accident. On examination, he found there was guarding over the lumbosacral area and intermittent neurology with tingling pain and numbness in the feet. He assessed this injury as giving rise to a WPI of 5%.[13] However, in his summary total for WPI, the Medical Assessor noted the injury as giving rise to a WPI of 0%.[14]
[13] Page 41 of the insurer’s bundle.
[14] Page 42 of the insurer’s bundle.
The Medical Assessor assessed the injury to the right shoulder as giving rise to a WPI of 1% and the left shoulder also giving rise to a WPI of 1%.[15]
[15] Page 42 of the insurer’s bundle.
The Medical Assessor certified that the claimant’s injuries caused by the accident gave rise to a total WPI of 2%.
MATERIAL BEFORE THE PANEL
The Panel considered the material filed by the parties.
The claimant submitted a paginated and indexed bundle of documents comprising of 309 pages.
The insurer submitted a paginated and indexed bundle of documents comprising of 377 pages. In its index, the insurer identified the documents that it also relied upon, that were found in the claimant’s bundle.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) The claimant highlighted the inconsistency in the Medical Assessor’s certificate where the Medical Assessor assessed a WPI of 5% for the lumbar spine injury which was then expressed in the summary total as 0%.
(b) The claimant submitted that the Medical Assessor did not apply the correct test in determining the existence of a pre-existing impairment of the cervical spine in accordance with cl 6.31 of the Guidelines. The Medical Assessor made a deduction of 5% from his WPI assessment of the cervical spine for pre-existing impairment based on neck symptoms that existed nearly three years before the accident in circumstances where there was no evidence of any neck symptoms since 2017 and any objective evidence of pre-existing symptomatic permanent impairment at the time of the accident.
Insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) The insurer conceded that the Medical Assessor failed to correctly record his assessment of a WPI of 5% for the lumbar spine in his final calculation but submitted that this should have been corrected as an “obvious error” in accordance with Procedural Direction PIC7 and not as “a material error” for the purpose of a review application.
(b) The Medical Assessor was correct in making a deduction of 5% from the WPI he assessed for the cervical spine because there was evidence of neck symptoms less than one month prior to the accident. On 30 November 2020, the claimant attended upon her general practitioner (GP) at the Marketplace Mediclinic for treatment and it was recorded that there was ‘left side neck muscle spasm’.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel that relates to the matters under review, may conveniently be summarised as follows.
Pre-accident records
The GP treating records of the Marketplace Mediclinic for the period March 2014 to November 2020 showed the following treatment consultations of the claimant:
(a) 9 September 2017 - the claimant was seen by Dr Ruchira Amarasinghe for “Headache for 2 days; left sided; Nausea+”. On examination, the claimant “looks well”. The reason for the visit was noted as “Headache” and the action taken was to request an X-ray of the cervical spine.[16]
[16] Page 211 of the claimant’s bundle.
(b) 7 October 2017- the claimant was seen by Dr Amarasinghe for “right sided neck pain” and a review of the x-ray noted “C4/5 disc degeneration”. The treatment plan was the prescription of analgesics and a recommendation for an MRI of the cervical spine to be undertaken.[17]
[17] Page 212 of the claimant’s bundle.
(c) 11 October 2017- the claimant was seen by Dr Dina Jamil. The MRI results were discussed. The claimant was referred to a neurosurgeon.[18]
[18] Page 213 of the claimant’s bundle.
(d) 29 December 2017- the claimant was seen by Dr Jamil and the following entry was recorded:
“She works at the airport and usually does check outs but recently they moved her to do kiosk job assisting PPI and she was to stand for 4 hours, causing strain on her back – MC given to avoid standing more than 1 hour.”[19]
[19] Page 213 of the claimant’s bundle.
(e) Following a visit by the claimant on 6 February 2018, the following entry was recorded by Dr Jamil:
“her HR manager requested a MC for this month and advised her to get one each month she is unable to work in kiosk due to her lower back pain”.[20]
(f) Following a visit by the claimant on 4 June 2018, the following entry was recorded by Dr Jamil:
“Mild frontal headache since yesterday…had migraine before – similar to migraine…UL and LL neurological examination normal – Head and Neck normal exam… Reason for contact: migraine.” [21]
(g) Following a visit by the claimant on 5 February 2019, the following entry was recorded by Dr Amil Dewan:
“a kwon [sic] pt of Migraine…frontal with nausea…frequency once/month…generally well and mentally fit.”[22]
(h) Following visits by the claimant on 25 May 2019 and 4 October 2019, Dr Ala’a Al-Zabin recorded that the reason for consultation was migraine attacks, with the “usual symptoms”.[23]
(i) Following a visit by the claimant on 9 October 2019 for headache, Dr Al-Zabin recorded that neurological and musco-skeletal examination was normal with no localising neurological or joints signs.[24]
(j) Following a visit by the claimant on 5 January 2020 regarding migraine headache, Dr Dewan recorded “no neck stiffness”.[25]
(k) Following a visit by the claimant on 30 November 2020 regarding headache,
Dr Dewan recorded there was a past history of migraine, recurrent frequent headache and there was “left sided neck muscle spasm”.[26][20] Page 214 of the claimant’s bundle.
[21] Page 214 of the claimant’s bundle.
[22] Page 218-219 of the claimant’s bundle.
[23] Page 219 and 221 of the claimant’s bundle.
[24] Page 222 of the claimant’s bundle.
[25] Page 224 of the claimant’s bundle.
[26] Page 229 of the claimant’s bundle.
On 20 October 2017, the claimant was seen by neurosurgeon and spinal surgeon, Dr Renata Abraszko. In a report to the GP, Dr Jamil dated 20 October 2017, Dr Abraszko recorded the following:
“Her job requires handling of tickets and checking people at the airport. She doesn’t need to bend or twist. She denies any injury to her neck. For about six months, she developed neck pain and discomfort, which is located more on the right side, and the pain radiates to her shoulder. There are also pins and needles in the fourth and fifth finger. The pain is not constant but is quite annoying.”[27]
[27] Page 364 of the insurer’s bundle.
Dr Abraszko believed that the MRI of the cervical spine performed on 10 October 2017 showed disc bulges at C4/5 and C5/6 levels, encroaching on the foramen and that the preceding X-ray of the cervical spine showed a reversal of normal cervical lordosis. [28]
[28] Page 364 of the insurer’s bundle.
Dr Abraszko recommended conservative treatment with stretching with core exercises, massage and physiotherapy. She indicated that she would review the claimant in three months, if the pain had not improved.[29]
[29] Page 365 of the insurer’s bundle.
There was no evidence of any further review of the claimant by Dr Abraszko that was before the Panel.
Post-accident records
GP records of the Marketplace Mediclinic
Following a visit by the claimant on 29 December 2020, GP, Dr Shina Dayon recorded the following:
“23/12 car accident, 60km, hit behind, back pain from sat.”[30]
[30] Page 230 of the claimant’s bundle.
The claimant attended for further treatment and the following was recorded:
(a) 30 December 2020 – “back pain”.[31]
(b) 26 January 2021 – “degenerative lumbar disc disease”.[32]
(c) 18 February 2021 – “recurrent low back pains”.[33]
[31] Page 230 of the claimant’s bundle.
[32] Page 231 of the claimant’s bundle.
[33] Page 231 of the claimant’s bundle.
The claimant’s statements
In her application for personal injury benefits dated 19 January 2021, the claimant described the circumstances of the accident as follows:
“I was driving home south bound on the eastern distributor (approx 60kph) at Kensington when I was hit by another vehicle at the rear right hand side with great force.
The impact was quite severe rendering my car undrivable as the driver side rear tyre was busted and buckled. There was also damage to the rear and side bodywork of my vehicle. My car had to be towed away from the scene.
The car that hit me was speeding and driving erratically. Aftering [sic] hit me the car did not stop and continued driving, until police caught them a short time later. It was made know [sic] to me that the car had also smashed into 3 other vehicles.” [34]
[34] Page 46 of the claimant’s bundle.
The claimant described her injuries in the following terms:
“Due to the force of the impact by the other vehicle, I am suffering lower to middle back pain. My mobility is now limited since the accident, as I cannot move or bend in certain ways without pain and furthermore, I have pain that comes and goes at times. As part of my employment, I am required to stand for long periods of time and if I do so I get pain, pins and needles and numbing in my back. Also, any sudden movements cause me pain in my back. After the accident I had time off work, as I was unable to move without pain. As the pain was getting worse, I visited the doctor, who had sent me for scans and advised to take pain relief medication in the meantime. As a result, I took several days off work. Due to COVID i'm working reduced hours, however I am currently on annual leave. Had that not been the case, I would have had to request further sick leave from work.”[35]
[35] Page 50 of the claimant’s bundle.
GP records of Workers Doctors
The treating GP records of Workers Doctors for the period March 2021 to July 2021 showed the following entries.
(a) 5 March 2021 – claimant was seen by GP, Dr Eric Lim; injuries noted as “Neck/Shoulder/Back/Psych”[36], symptoms of “neck stiffness travelling down bilateral shoulders, lower back pain travelling down bilateral legs…”[37]
(b) 11 March 2021 – claimant was seen by GP, Dr Sebastian Calvache-Rubia; rear end collision; whiplash injury; neck and trap pain; stiffness; clicking; lower back pain; referred intermittently to lower legs; will start physiotherapy this week.[38]
(c) 21 April 2021 – claimant was seen by GP Dr Calvache-Rubia; neck and trap pain; back pain, stiffness.[39]
(d) 19 May 2021 – claimant was seen by Dr Calvache-Rubia; persistent neck pain; restricted left shoulder movement due to pain; numbness left fourth and fifth fingers.[40]
(e) 9 June 2021 – claimant was seen by Dr Calvache-Rubia; ongoing neck pain and discomfort; left shoulder pain with restricted movement; MRI rotator cuff tear; ongoing physiotherapy.[41]
[36] Page 179 of the claimant’s bundle.
[37] Page 179 of the claimant’s bundle.
[38] Page 181 of the claimant’s bundle.
[39] Page 184 of the claimant’s bundle.
[40] Page 187 of the claimant’s bundle.
[41] Page 190 of the claimant’s bundle.
Dr Peter Khong
The claimant was referred to neurosurgeon and spine surgeon, Dr Peter Khong. In a report of 14 April 2021, Dr Khong noted that the claimant presented with bilateral neck and trapezius pain, lower back pain and posterior right thigh pain. Dr Khong noted a normal neurological examination of both upper limbs and lower limbs. His impression was that the claimant likely experienced musculoligamentous strain in her cervical and lumbar spine as well as some exacerbation of pre-existing degenerative changes.[42]
[42] Pages 89-90 of the claimant’s bundle.
The claimant was again seen by Dr Khong on 22 July 2021 when he reviewed the CT of the lumbar spine dated 30 December 2020 and the MRI’s of the lumbar spine dated
20 January 2021 and 17 June 2022. His opinion was that the latest MRI demonstrated some degenerative changes in the absence of neural compression.[43][43] Page 144 of the claimant’s bundle.
Ms Mary Doss
An Allied health recovery request form from physiotherapist, Mary Doss dated 6 May 2021 reported the claimant’s signs and symptoms as constant pain in neck, headaches, intermittent pain in the lower back with referred pain and pins and needles in the legs.[44]
[44] Page 96 of the claimant’s bundle.
Dr David Lieu
The claimant was referred to orthopaedic surgeon, Dr David Lieu regarding her left shoulder pain on 9 June 2021.
In a report dated 17 June 2021, Dr Lieu expressed the opinion that the claimant most likely sustained a significant sprain of her periscapular muscles and paraspinal strap muscles and paraspinal strap muscles. His diagnosis was persisting scapulothoracic dysrhythmia.[45]
[45] Page 105 of the claimant’s bundle.
Dr Lieu again saw the claimant on 8 December 2021 and noted persistent shoulder, back and neck pain with ongoing subscapular crepitus.[46]
[46] Page 124 of the claimant’s bundle.
Medico-legal evidence
Dr Drew Dixon, orthopaedic surgeon, was qualified by the claimant. He provided a report on 23 May 2023.
Dr Dixon was of the opinion that the claimant sustained the following injuries as a result of the accident:
(a) whiplash injury to the neck with post-traumatic stiffness with dysmetria and facet arthralgia with radicular complaint;
(b) aggravation of migraine headaches;
(c) seat belt injury to the right shoulder with post traumatic stiffness;
(d) injury to the left shoulder with trapezial muscle and deltoid pain with biceps tendonosis clinically and partial tear of the subscapularis, and
(e) low back strain injury with post traumatic stiffness with radicular complaint with sensory alteration in the right lower extremity.[47]
[47] Page 301-302 of the claimant’s bundle.
Dr Dixon assessed those injuries as giving rise to a WPI of 20%. He found that there was no symptomatic pre-existing conditions.[48]
[48] Page 303 of the claimant bundle.
RE-EXAMINATION
On 27 March 2024, the claimant was re-examined by Medical Assessor Gorman on behalf of the Panel.
Pre-accident medical history and relevant personal details
The claimant is a 46-year-old woman who was born and raised in Sydney.
She is married and resides in a double-storey home with her husband and four children aged 22, 20, 15, and 11. Her partner works on a full-time basis as a chartered accountant.
She handles light chores and occasionally prepares meals, but her motivation has dwindled after the accident. She is able to do light shopping but is unable to do larger grocery shopping. She is able to drive an automatic vehicle. Her hobbies involve going to the beach, dancing, baking, taking the kids out, going out with friends, dinner, hosting, lunches, dinners at home and long walks.
She is a non-smoker and does not imbibe alcohol.
She had experienced neck pain with associated symptoms extending to her right fingertips. She visited neurosurgeon, Dr Abraszko once on 20 October 2017, who noted painful movements of her neck towards the right side and recommended stretching and core exercises along with massage and physiotherapy. She underwent an MRI of the cervical spine which showed right C4-C5 foramen narrowing.
In 2017 or 2018 she had one episode of low back pain. She had one month of light duties at work.
She has had migraines which were worse after the accident.
The claimant suffered from Tonsillitis on 31 March 2014.
Pre-accident employment, education, and work experience
The claimant completed her schooling up to Year 12 and then completed TAFE, office administration, and a secretarial course traineeship. Subsequently, she acquired a traineeship in a construction company. She worked as a legal secretary for a law firm for five years and then in an accounting practice for 14 years before working in the family accountant practice. She was working with Khalil Lawyers since 2019 and with Menzies Aviation since 2015.
History of the motor accident
The claimant was involved in a motor accident on 23 December 2020 at approximately 5:15pm. She was the seat-belted driver of a Toyota Yaris accompanied by her 9-year-old daughter who was a front-seat passenger. She was travelling southbound on the Eastern Distributor in Kensington at the speed of 60kmph when her vehicle was forcefully struck from the rear right-hand side by a car speeding, and the driver then drove forward. She attempted to make a chase, but her car was unable to pursue the other vehicle due to mechanical failure. She eventually realised that her right rear tyre had busted and buckled. She pulled her car over and the car was subsequently towed from the scene of the crash. She waited for the police who did not arrive, and her friend then collected her and dropped her off at the police station where she reported the incident. Subsequently, her friend drove her home. She reported that the incident was witnessed by a biker passing by.
History of symptoms and treatment following the motor accident
A few days later, the claimant attended GP, Dr Dayon due to lower back pain. She recalls she was “in agony” then for 2-3 weeks, mainly in the low back and shoulders. She was prescribed medication and was referred for radiological investigations. She underwent a CT scan of the lumbar spine on 30 December 2020, which showed preservation of disc space height, hydration and lordosis. She also underwent an MRI of the lumbar spine on
20 January 2021, which showed L2/3 disc herniation/protrusion.She took two days off work and then had annual leave for a month.
On 5 March 2021, Dr Lim diagnosed her with cervical spine strain, bilateral shoulder strain and lumbar spine L2/3-disc herniation. She was recommended to attend physiotherapy to improve her physical function and was referred to a spinal surgeon for a management review. She was prescribed analgesia and anti-inflammatories.
She attended physiotherapy for six months without any benefit.
She visited a neurosurgeon and spine surgeon, Dr Peter Khong on 14 April 2021 who made a diagnosis of a combination of musculoligamentous strain and exacerbation of pre-existing degenerative changes. He recommended physiotherapy, hydrotherapy acupuncture and massage for her neck pain.
She underwent an MRI of the cervical spine on 1 June 2021 which showed C2/C3 left facet arthropathy, C4/C5, C5/C6 mild uncovertebral degenerative change and mild narrowing of the right C5/C6 and left C6/C7 neural foramina. She also underwent an MRI of the left shoulder which showed a partial thickness tear of the superior subscapularis tendon and mild subacromial bursitis.
She visited orthopaedic surgeon, Dr David Lieu on 17 June 2021 who noted chronic pain in her rhomboids and upper trapezius, worsened by heavy lifting, with associated shoulder clicking. He diagnosed her with “scapulothoracic dysrhythmia”. Dr Lieu recommended her to continue with ongoing physiotherapy, including massage and strengthening and referred her for an MRI of the left scapula to rule out bursitis for potential injection.
She then underwent an MRI of her left shoulder on 1 July 2021 which showed minimal osteoarthritis of the glenohumeral joint and minimal subdeltoid bursitis. Dr Lieu examined her again on 8 December 2021 and noted persistent shoulder, back, and neck pain, along with subscapular crepitus and referred her for a left medial scapular bursa injection.
She had an MRI of the lumbar spine on 17 June 2022 which showed minimal degenerative spondylosis of the lumbar spine. Dr Khong examined her on 22 July 2022 and noted debilitating lower back pain and recommended her to have a bone scan and some dynamic X-rays. He also suggested cortisone injections for the shoulders, but she declined the injections.
She reported that she used to have migraines which subsided but since the accident, she started to get constant migraines. She reported that she experienced flare-ups of pain every week and became bedbound during these episodes.
She also suffered from post-traumatic stress disorder following the accident. It also reaggravated her pre-existing conditions of anxiety and depression. She attended her psychiatrist for psychological conditions.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant has not sustained any relevant injuries since the motor accident.
Current symptoms
The claimant has neck pain, shoulder pain on the front and back, alternating back pain and shooting pain. She states that “it’s a struggle”. There “is not a day where she does not have pain”.
She has pins, needles, and numbness in both hands, on occasions.
She reports that she has developed tingling pain and numbness in the feet for which investigation was done and which revealed no abnormality. The pain in her back radiates down the right leg on occasions and can cause her to lose balance.
She has trouble changing lanes when driving as she cannot turn her neck.
Typing aggravates the neck and back pain.
If she kneels down, she struggles to get up.
If she sits for too long, she gets low back pain.
She states that when she develops pain across the neck, she starts to experience migraines, dizziness, and nausea and she becomes bedbound – this can happen on a weekly basis.
At work, often she says that she is unable to concentrate, unable to focus, and feels depressed and anxious.
Her husband does most of the shopping. Her mother does the cooking and cleaning.
She says the depression after the accident takes away her “energy to do things”.
Current and proposed treatment
The claimant was having physiotherapy until a few weeks ago – the insurance stopped funding it. It only gave temporary help.
She has an occasional massage and uses a “massage gun”.
She sees a psychologist every six weeks paid for by the insurer.
The claimant is taking Fluoxetine 20 mg, Nurofen combined with Panadol occasionally (up to 8 tablets a day), omeprazole for reflux and Voltaren. She is currently taking Nurofen with Panadol.
Current employment details
The claimant works as a customer service agent on a part-time basis (18 hours per week) with Menzies Aviation. She is “struggling”. She has been working there for seven and a half years. Following the accident, she took a month off and then resumed her pre-injury employment.
She subsequently discontinued working as second jobs for Khalil Lawyers in March 2021 and Pettitt Accounting Services in May 2021.
CLINICAL EXAMINATION
General presentation
The claimant is right-hand dominant. She was 158cm tall and weighed 63.4kg. She has a BMI of 25.2 kg/m².
On examination, her gait was normal, and she was able to walk on her tiptoes and on heels. She was able to do a partial squat but with some lumbar pain.
Cervical spine (cervicothoracic)
On examination, lateral flexion 3/4 of normal both sides. Rotation was ¾ of normal. Flexion is also ¾ normal as is extension.
There was tightness in cervical muscles bilaterally but no localised muscle spasm. She described feeling “balls of muscle” in the trapezii musculature.
In summary, there was no asymmetry of spinal motion.
Neurological examination of the upper extremities
Motor examination of C5 to T1 revealed normal muscle strength. Sensory examination was normal at all levels. Reflexes in the upper limbs were normal.
Thoracic spine (thoracolumbar)
There was no muscle guarding, swelling, rigidity or muscle spasm noted over the thoracic spine. There was no tenderness in the paravertebral or scapular muscles. Normal range of movement noted on flexion, extension, lateral flexion and lateral rotation.
Lumbar spine (lumbosacral)
On examination of the range of movement, flexion is to mid-shin level which was 2/3 normal. Extension is mildly limited to 2/3rd of normal. Lateral rotation is 2/3rd of normal to the left and right. Lateral flexion is up to the knee level which was 2/3 normal bilaterally.
In summary, there is no dysmetria.
There is no guarding over the lumbosacral area. Straight leg raise is negative bilaterally.
Neurological examination of the lower limbs
Motor examination of L2 to S1 revealed normal muscle strength. Sensory examination was normal at all levels. Reflex examination of the lower limbs was normal.
Upper extremities
She has intermittent “pins and needles” and numbness in the hands – but none was present on examination. She was tender over the trapezii bilaterally – she indicated “balls of muscle” she could feel on occasions. There were some firm tender areas in the trapezii bilaterally on examination – however, the ranges of motion in the right and left shoulders were normal as outlined below.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 180° |
| Extension | 50° | 50° |
| Adduction | 50° | 50° |
| Abduction | 180° | 180° |
| Internal Rotation | 80° | 80° |
| External Rotation | 90° | 90° |
Comments on consistency
The claimant was cooperative and consistent in her clinical presentation.
Diagnosis and causation
The claimant was involved in a motor accident on 23 December 2020. She was diagnosed with cervical spine injury, left shoulder partial tear subscapularis tendon rotator cuff and injury to the right shoulder, thoracic spine, and low back injury and these regions were symptomatic soon after the accident, caused by the accident.
The claimant had disc bulges at multiple levels on investigation, especially at the L2/3 which was more significant where there was a grade 1 retrolisthesis. However, at the re-examination there was no corresponding right buttock and thigh sciatica with sensory changes in the right upper leg as described by Dr Drew Dixon in his report dated
23 May 2023.The Medical Assessors of the Panel believe that the disc bulges seen in the investigations are age related degenerative changes rather than secondary to the motor accident. The disc bulges were widespread more consistent with a degenerative process. She did have previous back pain. The localised retrolithesis at L2/3 is more likely degenerative as the forces involved in this accident would be unlikely to cause an acute retrolithesis. In summary, while the accident may have caused the disc bulges, the Panel believes on the balance of probabilities that they were not caused by the accident.
Summary of injuries referred for assessment
The Medical Assessors of the Panel conclude that the following injuries WERE caused by the motor accident:
· cervical spine – musculoligamentous injury to the cervical spine;
· lumbar spine – musculoligamentous injury to the cervical spine;
· shoulder – musculoligamentous injury to the right shoulder;
· shoulder – partial tear of the superior subscapularis tendon in the left shoulder, and
· thoracic spine – musculoligamentous injury to the thoracic spine.
The Medical Assessors of the Panel find that the following injuries WERE NOT caused by the motor accident:
· lumbar spine disc bulges at the L2/3, L3/4, L4/5 and L5/S1 levels with contact of the L2/3 thecal sac.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Guidelines. Definition of Permanency Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition at page 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Permanent impairment
Cervical spine
Using the AMA Guides, 4th Edition, Chapter 3, The Musculoskeletal System and Table 73, on page 110, and page 105 to 113 of the Guidelines, the claimant fits the criteria for DRE Cervical Category I. The history and findings are compatible with a specific neck injury. She has tightness in cervical muscles bilaterally, mild post-traumatic stiffness but with no dysmetria and no radicular complaints. The intermittent tingling in the hands is bilateral and non-dermatomal. She has a 0% WPI.
Thoracic spine
Using the AMA Guides, 4th Edition, chapter 3, The Musculoskeletal System and Table 74, on page 111, and page 105 to 113 of the Guidelines, the claimant fits the criteria for DRE Thoracolumbar Category I. There are complaints of intermittent back pain. There was no muscle guarding, swelling, rigidity or muscle spasm noted over the thoracic spine. There was no tenderness in the paravertebral or scapular muscles. Normal range of movement noted on flexion, extension, lateral flexion and lateral rotation. She has a 0% WPI.
Lumbar spine
Using the AMA Guides, 4th Edition, Chapter 3, The Musculoskeletal System and Table 72, on page 110, and pages 105 to 113 of the Guidelines, the claimant fits the criteria for DRE Lumbar Category I. The history and findings are compatible with a specific injury and clinical signs of a lumbar spine injury are present, but she has no guarding over the lumbosacral area and on intermittent non-dermatomal symptoms in the lower limbs which are not consistent with non-verifiable radicular symptoms. She has a 0% WPI.
Shoulders
Impairment of the shoulders are determined using range of motion methods using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively, as set out in the table below. She has an equal and normal range of motion on both right and left sides giving 0% WPI.
Whole person impairment
Using the Combined Values Chart on page 322, the claimant has a 0% WPI as a result of the accident on 23 December 2020.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA4, Chapter 3, Table 73 on page 110 | Yes | 0% | 0% | 0% |
| 2 | Thoracic spine | AMA4, Chapter 3, Table 74 on page 111 | Yes | 0% | 0% | 0% |
| 3 | Lumbar spine | AMA4, Chapter 3, Table 72 on page 110 | Yes | 0% | 0% | 0% |
| 4 | Right shoulder | AMA Chapter 4 Figures 38, 41 and 44 on pages 43 to 45 | Yes | 0% | 0% | 0% |
| 5 | Left shoulder | AMA Chapter 4 Figures 38, 41 and 44 on pages 43 to 45 | Yes | 0% | 0% | 0% |
* %WPI = percentage whole person impairment
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Gorman in relation to the injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder and left shoulder.
The Panel adopts the conclusions and opinions of the Medical Assessors of the Panel.
CONCLUSION
The Panel has reached different conclusions in their assessment of WPI.
Accordingly, the Panel revokes the certificate of the Medical Assessor and issues a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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