Fear v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 68
•6 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Fear v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 68 |
CLAIMANT: | Joanne Fear |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 6 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; application for medical assessment of WPI; claimant’s application for review under section 7.26; claimant injured in accident on 12 November 2019 and alleged injuries to her neck and both shoulders; issue of causation and apportionment regarding shoulders; claimant had pre-accident treatment and scans for left shoulder issues in the years before the accident; post accident claimant complained of neck and right shoulder pain and right shoulder was investigated; it was not until later that left shoulder complaints were made and two years before left shoulder was scanned; Panel not satisfied claimant injured her left shoulder in the accident but satisfied injuries to right shoulder and neck occurred; Held – neck impairment assessed as DRE I (0%), right shoulder impairment assessed as 5%; no evidence of any pre-existing symptomatic impairment to the right shoulder therefore no deduction; certificate of MA Nair revoked although no change in the ultimate outcome; no issue of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the combined certificate issued by Medical Assessor Nair dated 5 October 2023. 2. Certifies that the degree of the claimant’s whole person impairment resulting from the injuries caused by the accident is 5% which is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Joanne Fear was involved in a motor accident on 12 November 2019 at Punchbowl. Ms Fear was 53 years of age at the time of the accident, and she is now 58 years of age.
Ms Fear says she injured her neck and both shoulders in the accident and sustained a psychological injury. She made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that she says caused her accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Ms Fear referred that dispute to the Personal Injury Commission (Commission) for assessment.
On 5 October 2023 Medical Assessor Nair determined Ms Fear did not have a WPI of greater than 10%.
The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 22 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. The President’s delegate convened a Panel to conduct the Review (the first Panel).[1]
[1] Member Scarcella and Medical Assessors Barnsley and Yu.
On 9 July 2024 the President’s delegate convened a differently constituted Panel to conduct the Review (the second Panel)[2] before the current Review Panel (the Panel) was convened to conduct the Review.
[2] Member Cassidy and Medical Assessors Barnsley and Yu.
The delay between the lodgement of the application for review and conclusion of the proceedings has occurred because the claimant had shoulder surgery in 2024. Ms Fear’s impairment was unable to be assessed until sufficient recovery time had elapsed.
LEGISLATIVE FRAMEWORK
General
Ms Fear’s claim and her entitlement to lump sum compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). Ms Fear’s damages are to be assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[4]
[4] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nair’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
The degree of a claimant’s permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by Ms Fear, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Nair confirms at [2][7] he was asked to assess the cervical spine, left shoulder and right shoulder injury.
[7] The numbers in square brackets corresponded to the sections of the Medical Assessor’s reasons document.
The claimant disclosed and the Medical Assessor documents at [8] a 2015[8] car accident in which Ms Fear said she sustained neck and lower back injuries. She was apparently assessed during the course of that claim and a degree of permanent impairment was found.
[8] The Medical Assessor does not refer to the accident as a 2014 accident. Whether this is an error on the part of the Medical Assessor or by the claimant in providing the history is not clear.
The Medical Assessor reports at [9] Ms Fear was driving her vehicle when she was hit from behind on 12 November 2019. She says she saw her general practitioner (GP) on the day, had ultrasounds and commenced physiotherapy.
The claimant was reported at [10] to complain of sub-axial cervical spine pain and pain in both shoulders, the left being worse than the right and provoked by rotation and overhead activities.
The claimant had, at the time of Medical Assessor Nair’s assessment, some corticosteroid injections but had not yet had surgery [13].
Medical Assessor Nair found mild dysmetria in the cervical spine but no sign of radiculopathy. The range of motion in the left shoulder was better than the right in flexion but the other five units of shoulder motion were identical.
Medical Assessor Nair at [19] reviewed the radiology noting ultrasounds of the left shoulder were done in November 2017 and October 2021 and injections in the left shoulder in 2017 and 2018.[9]
[9] While the Medical Assessor reports October 2017 and November 2018 right shoulder radiology, the Panel has been unable to correlate these with any attendances or records in the file. The Panel has not been taken by the insurer to reports of any pre-accident radiology or imaging of the right shoulder in the insurer’s bundle.
He found the left shoulder rotator cuff tendon pathology secondary to a full-thickness supraspinatus tear. He assessed the impairment as permanent noting there was no surgery planned.
He assessed:
(a) cervical spine at 5%WPI less 5% WPI for a pre-existing condition resulting in no impairment caused by the current accident;
(b) right shoulder at 5% WPI less 5% WPI for a pre-existing condition resulting in no impairment caused by the current accident, and
(c) left shoulder at 5% less 1 % for a pre-existing condition resulting in a WPI of 4%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions in support of the review argue that the Medical Assessor failed to provide an adequate path of reasoning and failed to adequately review the medical material.
The claimant says at [6] that the Medical Assessor stated a diagnosis but gave no reasons to explain it giving no reasons at all. The claimant says at [8] the Medical Assessor gave no explanation for his deduction of 1% relying on the opinion of Dr Davis that there was no pre-existing rotator cuff pathology.
In terms of the right shoulder similar arguments are made that is that the right shoulder diagnosis was not explained and the pre-existing condition was not explained either. The claimant relies at [17] on Dr Dias’ opinion who said there was no objective evidence of a symptomatic pre-existing right shoulder condition in the 12 – 18 months before the accident.
In respect of the cervical spine, similar submissions were made about the reasons (or lack thereof) and the deduction for pre-existing impairment.
Insurer’s submissions
The insurer says there is no failure by the Medical Assessor and that he has explained his assessment and deductions noting that the claimant had limited recall of events surrounding her earlier accident.
The insurer points to evidence of a symptomatic condition before the accident including radiology of the right shoulder in November 2018 and left shoulder treatment in March 2018.
Procedural matters
The first Panel met on 5 February 2024 and scheduled a re-examination with Medical Assessors Barnsley and Yu on 22 March 2024. Directions were issues for the Panel to be given access to digital copies of imaging studies and reports and for the provision of final submissions.
On 3 September 2024, the second Panel issued directions to the claimant seeking updated records and reports from Professor Murrell (the claimant’s treating orthopaedic surgeon) and from her GP.
The Panel met on 29 November 2024 and issued a report to the parties on
3 December 2024. The Panel confirmed we would be assessing the claimant’s cervical spine and both her shoulders noting that the real issue in dispute appeared to be causation and that method of assessment in the light of the claimant’s 2014 accident and alleged pre-existing condition.
The Panel directed the claimant to provide answers to questions about any assessments of the 2014 claim and injuries and the insurer was directed to upload an agreed bundle of documents. A date was schedule for the re-examination and the parties advised.
REVIEW OF THE EVIDENCE
Claim form and claim documents
2010 work related claim
The insurer has provided the claim documents in relation to the claimant’s 2010 work related claim which did not involve any physical complaints, but complaints of severe anxiety and stress associated with the claimant returning to work after a period of maternity leave following the birth of her twins.
2014 accident
The claimant attended Canterbury Hospital after this accident complaining of bilateral shoulder pain at triage[10] or bilateral nape (neck) and left shoulder pain (as recorded in the discharge summary).[11] She was discharged later that day having been given Endone.
[10] Page 28 of the insurer’s bundle.
[11] Page 26 of the insurer’s bundle.
The medical certificate in support of the claimant’s 10 October 2014 motor accident[12] documents neck pain, back pain, soft tissue injury and suspected radiculopathy (cervical spine down left arm). Physiotherapy, MRI, analgesics, anti-inflammatory medications and anti-depressants were recommended. The certificate was completed by Dr Ho who says he had been the claimant’s GP since 2009.
[12] Page 21 of the insurer’s bundle – a copy of the claim form does not appear in the records.
2019 (current) accident
The claim form was signed by the claimant and dated 9 December 2019. She discloses the previous (GIO) claim arising out of the 10 October 2014 accident. Ms Fear describes her current injuries as:
“Injury to neck, right shoulder, aggravation to previous lower back injury; anxiety state and depression.”
The Panel notes the claimant’s left shoulder is not mentioned in this list of injuries.
The claimant also noted that she had no injuries affecting her body at the time of the accident and said:
“However did have pre existing conditions – which were settled and now become much worse.”
The claimant’s list of injuries referred for assessment[13] includes the cervical spine and neck (including cervicogenic tension headaches) and both right and left shoulders.
[13] Page 15 of the claimant’s bundle.
Photographs provided by the claimant show deformation damage to the rear of the claimant’s car as well as damage to the front of the insured vehicle which had a bull bar also damaged. There appears to also be some interior damage to the left rear of the vehicle.
Treating medical records and reports
The claimant’s type written medical records provided to the Panel indicate that the claimant does not attend her GP, Dr Ho very often for example she went six times in 2015, five times in 2016, twice in 2017, three times in 2018, four times in 2019 (two before and two after the accident), twice in 2020 and six times in 2021.
The pre-accident records include the following:
(a) a medico-legal report from Dr Lee, psychiatrist dated 1 November 2010[14] indicating the claimant’s WPI as a result of her workers compensation claim was 22%;
[14] Page 131 of the claimant’s bundle.
(b)
X-ray report dated 15 October 2014 of the spine showing marked degenerative changes at the neck and lower back. The first note in the records is dated
17 October 2014 where Dr Ho discussed the claimant’s imaging and records pain over the back of the neck, pain in the right upper arm and constant low back pain with no radiation at that stage. A further attendance on 21 October 2014 referred to constant pain in the neck, back and left arm and Panadeine Forte was prescribed;
(c) on 18 December 2014 the claimant was reviewed by Dr Ho who noted some improvement with physiotherapy, but the claimant still complained of neck pain shooting into the back of her head, left arm pain and back pain;
(d)
the claimant attended again on 23 February 2015 with neck and back pain and shoulder problems, Tramal was prescribed along with Mobic and Endep. On
12 March 2015 she saw Dr Ho who wrote in support of her being excused from jury duty;
(e) an MRI report dated 5 June 2015 showed disc protrusions and osteophytes at various levels of the cervical spine, a normal thoracic spine and degenerative changes and disc bulges in the lumbar spine;
(f) Dr Pope examined the claimant on 20 October 2015 on referral from Dr Ho.[15] He has a history of neck and upper limb pain and tingling with lower back pain and left lower limb pain since her accident. He referred the claimant for a CT bone scan and was to review her after that;
[15] Page 212 of the insurer’s bundle.
(g) a whole-body bone scan on 2 December 2015 showed degenerative arthritic changes in the cervical discs and at L5/S1. The claimant attended upon Dr Ho on 24 June 2015 complaining of right leg and left arm pain with reduced pin prick sensation. On 14 July 2015 the claimant complained of pins and needles in both hands, Endep was ceased (ineffective) and Lyrica and Panadeine Forte prescribed;
(h) Ms Fear attended next on Dr Ho on 12 October 2015 enlisting his support in obtaining the Centrelink carer’s payment for her husband to look after her due to an exacerbation of her sciatica, numbness and pain from C5 all the way to the foot. An updated and increased dosage of Lyrica was prescribed;
(i)
on 5 November 2015 the claimant was seen after referral to a neurosurgeon. Due to ongoing complaints of pain and depression the claimant was referred to
Dr Smith, psychiatrist for review;
(j)
a report from Dr Sheh, pain specialist and rehabilitation physician dated
17 December 2015 is addressed to Dr Pope. This report refers to a significant history of depression which resolved when her litigation resolved, instant neck pain after the accident and low back pain with difficulty performing household chores. The claimant was said to be taking Tramadol, Mobic and Panadeine Forte. The claimant reported bilateral upper limb pain and tingling and left lower limb pain;
(k) the claimant attended again on 3 March 2016 for further Panadeine Forte and on 14 March 2016 the claimant was given Norspan (opioid) patches;
(l) the claimant was given further scripts on 9 May 2016 for Lyrica and Oxycontin;
(m) the claimant attended on 29 August 2016 for depression associated with her legal issues after the car accident and the claimant had pain in her left shoulder (but a normal range of motion) and Cymbalta was prescribed. Cymbalta and Lyrica, Mobic and Oxycontin were prescribed on 31 October 2016 due to increasing shoulder and neck pain;
(n) the claimant visited Dr Ho on 31 July 2017. He has a history of an “MVA last month” and Ms Fear had developed left hip pain and lower back pain getting in and out of the replacement four-wheel drive. The claimant was limping;
(o) a report of an ultrasound of the claimant’s left shoulder dated 14 November 2017 showed a tear in the supraspinatus, mild osteoarthritis, bursitis and minimal shoulder impingement. On 21 November 2017 the claimant had an injection to the joint;
(p) the claimant reported to Dr Ho on 23 February 2018 that her left shoulder pain was relieved by the steroid injection but had returned over the last two weeks gradually building up and affecting her neck and causing a left sided headache;
(q) on 5 March 2018, the claimant had a further ultrasound guided left bursal injection following which she reported symptoms reduced from 8 out of 10 to 0 out of 10. The claimant attended on Dr Ho on 12 March 2018 after this injection and he noted she had a good range of motion with minor impingement at 80 degrees but with no pain until 90 degrees and on external rotation and in extension;
(r) following this the claimant attended on 15 December 2018 for travel advice and vaccination before a trip to Thailand, and
(s) two attendances in 2019 before the accident concerned vaccinations and there is no mention of any neck, back or shoulder symptoms.
The claimant’s bundle of documents includes documents and records as follows:
(a)
a certificate of fitness from Dr Ho signed by the claimant and Dr Ho dated
12 November 2019. This document certifies that Dr Ho first saw the claimant on the day of the accident (12 November 2019) and he diagnosed “neck pain, headache as a result of a motor vehicle accident.” He did not identify any pre-existing factors relevant to her condition and he does not mention either shoulder;
(b) Dr Ho’s clinical records do not refer to any attendance on 12 November 2019, but do record a visit on 18 November 2019 and states that on that date he completed the NSW Certificate of capacity / fitness;
(c) a report of an ultrasound of the claimant’s right shoulder on 18 November 2019 which noted “rotator cuff tendinosis with a full-thickness supraspinatus tear”. Also present was subacromial bursitis and impingement. The ultrasound notes that it was requested by Dr Ho on 16 November 2019. There is no corresponding note on that day;[16]
[16] Page 48 of the claimant’s bundle.
(d) the claimant next attended Dr Ho on 12 December 2019 having returned from a trip to the USA with right shoulder symptoms on abduction and lower back pain radiating to her left leg;
(e) she had a right sub-acromial bursal injection on 31 December 2019. Correlation with the recent ultrasound revealed “increased flow at the rotator interval, which [is] suggestive of capsulitis”;
(f) the claimant then attended Dr Ho on 7 February 2020 due to deteriorating mental health and she referred to pain in her back and shoulders every day “after the steroid injection to the right shoulder the pain subsided a lot, the left still plague her sometime”;
(g) Ms Fear attended Dr Ho on 17 September 2020 with three issues one of which was for right ankle pain none of which were for neck or shoulder pain. There is a 23 September 2020 report of a right ankle ultrasound due to a sore right ankle;
(h)
the next attendance on Dr Ho for anything accident related was on
19 January 2021, the claimant complained of right more than left shoulder pain it was noted “steroid injection helped to settle her pain for many months afterwards”, and
(i) a further attendance for bilateral shoulder pain occurred on 20 September 2021.
In the above first bundle of documents there is no record of any prescription for pain relief in respect of the claimant’s injuries from the 2019 accident.
Dr Ho has provided his updated records[17] which include:
[17] Page 52 of the claimant’s 21 November 2024 bundle.
(a)
12 October 2021 report of ultrasounds of the right and left shoulder and the
15 October 2021 report of the left subacromial bursa injection. The claimant saw Dr Ho on 18 October 2021 to review the radiology and she was given advice about protecting and strengthening her shoulder girdle;
(b) on 1 April 2023 the claimant attended with an exacerbation of her left shoulder pain “no particular incident brought it on.” There is a note that the range of motion in the left shoulder compared to the right was full;
(c) on 5 May 2023 the claimant attended with an “acute exacerbation of her pain over her lower back and shoulder” and she complained of a heavy painful left leg. Pain had started in her lower back and had radiated. Dr Ho refers to an MRI from 2015 and the claimant having high levels of stress due to family issues. The claimant’s neck and shoulder were not examined on this occasion with Dr Ho wishing to wait until the lower back and left leg issues were investigated;
(d) 11 May 2023 report of an ultrasound of the left hip with “longstanding left lower limb pain with radiation from buttock to ankle” (diagnosis trochanteric bursitis, gluteus minimus and medius tendinosis (no tear). An x-ray of the lumbosacral spine showed mild degenerative changes in the lower lumbar spine with anterolisthesis at L5/S1 with a possibility of an L5 pars interarticularis defect;
(e) on 6 July 2023 Ms Fear attended for her left shoulder pain, left heel pain and review of the radiology of the lower back and hip;
(f) 18 July 2023 report of an ultrasound guided injection into the left subacromial/subdeltoid bursa which reduced the claimant’s pain from 9 out of 10 to 5 out of 10;
(g) on 21 August 2023 the claimant was referred to Professor Murrell due to the failure of her left shoulder to improve and it was progressively worsening;
(h) on 14 October 2023 the claimant returned “in distress about her chronic left shoulder pain” which had worsened in the last months, the July injection had not improved her state, and Mobic was not helping. A referral to Ms Moubarak psychologist and Professor Murrell was given;
(i) Ms Fear attended again on 22 December 2023 with a history of limping and weakness in her left hip and knee and an inability to support her body with her left leg. There was lower back pain, and the claimant had an antalgic gait. Radiology was requested;
(j)
22 December 2023 report of an X-ray of the claimant’s lower back and hips revealed moderate multilevel spondylosis and facet joint arthrosis at L3-S1, disc space loss at L4/5, mild anterior spondylolisthesis of L4 on L5 and bilateral degenerative changes in the sacroiliac and hip joints. Ms Fear saw Dr Ho on
30 December 2023 to discuss this radiology and she was given advice about seeing Dr Pope, neurosurgeon (who had seen her in 2015) or Dr Lakis, spinal surgeon;
(k) On 27 February 2024 the claimant saw Dr Ho with ongoing pain in her left leg and antalgic gait. She was distressed and in constant pain with her left leg. A script for Panadeine Forte, an antidepressant and a referral to Dr Pope were given;
(l) 10 September 2024 report of an ultrasound of the left hip with a clinical history of “exacerbation left anterior hip pain”. The conclusion was trochanteric bursitis and gluteal tendinopathy and left hip joint osteoarthritis. On 13 September 2023 the claimant had an ultrasound guided corticosteroid injection into the left hip joint;
(m) 21 August 2024 the claimant attended with stress and angry feelings about the state of her marriage. There are sensitive issues outlined concerning her husband and his behaviour which are unrelated to the accident which it is not necessary to detail here. The Panel notes that Dr Anand and Ms Moubarak do not appear to have been made aware of these issues;
(n) 5 September 2024 the claimant attended for bilateral hip pain, lower back pain and difficulty walking, and
(o) 23 September 2024, Ms Fear attended Dr Ho advising that her left hip pain dramatically improved after the left hip injection, but she was still having difficulties. Further complaints were made about the state of her marriage.
Dr Ho, referred the claimant to Professor Murrell on 21 August 2023. He includes in the referral [18]details of left subacromial bursitis from 20 November 2017 and right supraspinatus tear from 12 December 2019.
[18] Page 2 of the claimant’s 21 November 2024 bundle.
Professor Murrell organised an X-ray and ultrasound of the left shoulder on
22 November 2023 which showed[19] a full thickness tear of the left supraspinatus mild wasting of the muscles and 50% thinning of the biceps sheath. The infraspinatus also showed a full thickness tear. Professor Murrell wrote to Dr Ho on the same date referring to the 12 November 2019 accident as “an initiating event” and advised arthroscopic repair of the left rotator cuff.
[19] Page 3 of the claimant’s 21 November 2024 bundle.
Within Professor Murrell’s records is a letter from the insurer declining treatment for the right shoulder[20] and communication approving payment of the left shoulder surgery.[21]
[20] Letter4 dated 5 March 2024 at page 27 of the claimant’s 12 November 2024 bundle.
[21] Email dated 5 March 2024 at page 34 of the claimant’s 21 November 2024 bundle.
The operation report notes that under anaesthetic the claimant had 170 degrees of forward flexion and abduction both before and after the operation, internal rotation to T10 both before and after the surgery and 60 degrees of external rotation before the operation. The supraspinatus was repaired with four anchors. The histopathology report of the rotator cuff tissues done on 12 March 2024 showed “changes consistent with the effects of low-grade repetitive trauma”.[22]
[22] Page 39 of the claimant’s 21 November 2024 bundle.
Correspondence and radiology showed the outcome of the surgery was good and progress in range of motion that could be achieved. On 5 June 2024, Mr Daher recorded flexion of 150 degrees and abduction of 140 degrees achieved.
Professor Murrell reported to Dr Ho on 23 September 2024[23] that the claimant was “very happy with the shoulder and is back to many activities.” He noted she had “a good range of motion and is strong in strength testing”. He considered it was an excellent outcome and did not need to see the claimant again.
Medico-legal reports
[23] Page 48 of the claimant’s 21 November 2024 bundle.
October 2014 accident
Dr Ellis provided a report to the claimant’s lawyers dated 10 April 2015.[24] The claimant complained of neck pain and bilateral shoulder pain the left being worse than the right. The claimant was said to be left handed and there was numbness and paraesthesia in both hands. She also had low back pain spreading to both feet with paraesthesia in the right leg to the right foot.
[24] Page 40 of the insurer’s bundle.
Dr Ellis diagnoses musculo-ligamentous contusions and aggravation of degenerative changes in her neck resulting in radiculopathy (assessed at 15% WPI) and back with radicular symptoms (assessed at 5%) and impairments of the upper limbs of 13% and 15% (UEI) providing a total of 16% WPI.
Dr Ellis provided a further report dated 6 July 2015[25] commenting on the 5 June 2015 MRI. He increased his assessment of WPI to 36%.
[25] Page 160 of the insurer’s bundle.
An activities of daily living report from Mr Malik dated 10 August 2015[26] suggested that, as a result of the claimant’s injuries she required 18 hours of domestic assistance per week.
[26] Page 162 of the insurer’s bundle.
The insurer in the claim relied on a report from Dr Bentivoglio, orthopaedic surgeon dated
24 September 2015.[27] He considered the claimant injured her neck and back on a background of degenerative changes but found no radicular symptoms or signs of radiculopathy on his examination. He did not examine the claimant’s shoulders or record any range of motion of the shoulders. He did not offer an opinion of WPI.
[27] Page 203 of the insurer’s bundle
Dr Athanasou, vocational psychologist provided a report dated 9 September 2016 to the claimant’s lawyers.[28] He was of the view the claimant’s ability to return to the work force had been affected and she was fit only to work in a part time role at an elementary sales, service or clerical level.
[28] Page 230 of the insurer’s bundle.
Dr Dias, occupational physician provided a report for the claimant dated 2 December 2016.[29] He says:
“As a result of the impact of the collission, Ms Fear sustained a whiplash type mechanism of injury to her cervical spine and lumbar spine and jarred her right and left shoulders, as her right and left hands were grippig the steering wheel.”
[29] Page 265 of the claimant’s bundle.
Dr Dias noted the claimant was taking Endep (antidepressant), Lyrica (for neuropathic pain), Oxycontin twice daily (for pain relief) and Mobic (anti-inflammatory) medication and occasional Panadol Osteo.
After examining the claimant he found:
(a) cervical radiculopathy (and assessed the claimant as having a 15% WPI less one tenth for pre-existing condition);
(b) lumbar radiculopathy (and assessed the claimant as having a 10% WPI less one tenth for a pre-existing condition);
(c) right shoulder impairment assessed at 7%, and
(d) left shoulder impairment assessed at 8%.
The total impairment assessed was 33%.
Dr Dias expressed the opinion that her prognosis was poor and that it was doubtful her condition would ever resolve to a point where she was pain free or free from functional restrictions and limitations.
November 2019 (current) accident
Dr Dias, occupational physician completed a report for the claimant on 26 November 2021.[30]
[30] Page 32 of the claimant’s bundle.
Dr Dias has a history of no previous problems before the October 2014 accident but that she injured her neck, lower back and left shoulder in that accident. Ms Fear said she had physiotherapy, analgesia and cortisone injections in her left shoulder. She reported her symptoms slowly resolved and that by mid-2018 she “was largely pain free and asymptomatic.”
Dr Dias has a history of a whiplash injury to the claimant’s neck and that the right shoulder was significantly jarred and the left shoulder less so and that she was gripping the steering wheel and turned to the right at the time of impact.
Dr Dias records her car was significantly damaged, towed away and subsequently written off. Police attended but not ambulance. He noted the claimant first went to her GP six days after the accident.
The claimant complained of ongoing pain, stiffness and discomfort in the right shoulder, left shoulder and neck with tension headaches occurring regularly. There is no complaint of lower back pain or pain in either of her hips at that time.
On examination of Ms Fear’s neck, Dr Dias records cervical tenderness, guarding, dysmetria of cervical movements but no evidence of radiculopathy.
In terms of the claimant’s shoulders, he found restriction in three units of motion (flexion, abduction and internal rotation) but not in the others.
Dr Dias diagnosed:
(a) persistent aggravation of pre-existing degenerative cervical spondylosis with headaches and bilateral upper limb symptomatology;
(b) chronic right shoulder impingement syndrome secondary to supraspinatus tendon tear ad bursitis, and
(c) persistent aggravation of pre-existing left shoulder rotator cuff pathology and bursitis.
He assessed impairment of the cervicothoracic spine at 5% WPI, right shoulder at 5% and left shoulder at 5%.
Dr Canaris, psychiatrist provided a report to the claimant’s solicitor dated 12 January 2022.[31] The claimant complained of some back pain but mainly shoulder pain. She gave a history of the previous workers compensation claim (10 years ago) and there is a reference to the 2014 car accident and physical injuries only.
[31] Page 22 of the claimant’s bundle.
Dr Canaris diagnosed a post-traumatic stress disorder caused by the accident. He assessed WPI at 15% and noted the claimant’s history (which he confirmed by an analysis of her GP’s records) that she had recovered from the earlier depression following her workers compensation claim.
Dr Keller, occupational physician has provided a report to the insurer dated 4 April 2022.[32]
Dr Keller has a detailed history of the claimant’s work place mental health claim but in respect of other issues:
(a) the claimant initially denied any previous neck or shoulder injuries, complaints, investigations or treatment;
(b) when asked about the 2014 accident she could not recall the year;
(c) she said she had lower back pain and no other injuries, had physiotherapy for a few months and no surgery, and
(d) she fully recovered receiving compensation but she could not recall the amount.
[32] Page 438 of the insurer’s bundle.
The claimant complained of intermittent left shoulder pain and right shoulder pain aggravated by repetitive movements. She said she got headaches with the shoulder pain and had constant neck pain.
On examination, the claimant demonstrated full symmetrical range of motion in the neck with normal sensation to touch in both upper arms and fingers. The left shoulder was slightly more restricted than the left but other upper limb joints were normal. The thoracic and lumbar spines had “a particularly flexible and symmetrical range of motion” with no spasm.
Dr Keller considered the claimant temporarily exacerbated her previous neck and shoulder pain but sustained no lasting injuries or any aggravation of previous impairments. He assessed WPI at 0%.
Dr Vickery examined the claimant on 18 May 2022[33] and reported to the insurer that the claimant suffered a pre-existing generalised anxiety disorder and somatic symptom disorder with predominant persistent pain but that there was no WPI caused by the accident.
[33] Page 447 of the insurer’s bundle.
Dr Anand, neuropsychiatrist examined the claimant for the purposes of assessing her psychological or psychiatric injury and reported to the claimant’s solicitors on
18 October 2024.[34] The examination was undertaken by telehealth and Dr Anand diagnosed a post-traumatic stress disorder. He assessed her WPI at 15% reducing it by 2% WPI for a pre-existing condition (anxiety and depression).
[34] Page 82 of the claimant’s 21 November 2024 bundle.
Dr Stephenson provided a report to the claimant’s solicitors dated 18 December 2024. He has a history of the 19 October 2014 motor accident with injuries to the neck, back, shoulders, arms and head as well as anxiety and depression. He refers to the claimant’s “mistreatment” by her employer at that time.
Dr Stephenson notes that immediately after the accident the claimant developed pain in her left and right shoulder and complained of a sore neck and headache. Dr Stephenson documents the post-accident radiology and treatment.
On examination Dr Stephenson records:
(a) reproducible impairment of sensation (not further identified) which was localised to a nerve root (which particular nerve root was not identified);
(b) active reflexes bilaterally;
(c) no muscle wasting but a 1cm difference in circumference of the forearms, and
(d) positive nerve root tension in the right arm with pain in the neck down the forearm. In the left there was pain in the neck but not down the arm.
Dr Stephenson did not record any measurement of power in the upper limbs. He also does not include in his report any measurement of range of motion in the claimant’s shoulders.
He found radiculopathy attracting a 15% WPI along with 8% for each of the shoulders, making a 28% WPI finding which he reduced by one tenth for the previous motor accident.
Other assessments 2014 accident
Medical Assessor Anderson examined the claimant on 20 August 2015. He records neck and back pain with altered sensation in the arms and the legs. He diagnosed an aggravation of chronic adjustment disorder with mixed anxiety and depressed mood and assessed the claimant’s WPI at 7%.
Medical Assessor Gliksman examined the claimant on 19 August 2015 and assessed injuries to the neck, lower back, right and left shoulder (both of which were said to be neurological deficit due to radiculopathy or soft tissue injury). The claimant complained of cervical pain, stiffness and paraesthesia with recurrent headache and restriction of upper limb movement.
Range of motion in both shoulders were restricted.
Medical Assessor Gliksman diagnosed cervical radiculopathy, lumbar sciatica, bilateral carpal tunnel syndrome but said there was no separate injury to the shoulders or lower limbs. He declined to assess impairment on the basis her condition was deteriorating.
Other assessments 2019 accident
Medical Assessor Shen issued a certificate dated 12 July 2023 in respect of the WPI resulting from the claimant’s psychological or psychiatric injury. The claimant denied any previous psychiatric conditions before 2010, said she had lower back pain and previous shoulder pain different to her current pain. He has a history of a workers compensation claim for depression and anxiety.
The claimant reported ongoing pain in her shoulders with periodic flare-up. She reported developing psychological symptoms associated with turning right but she said she had no treatment, did not want any and would deal with it herself.
Medical Assessor Shen refers to the reports of Dr Dias, Dr Canaris and Dr Vickery but does not refer to the GP’s notes or psychologist’s notes.
Medical Assessor Shen diagnosed a persistent depressive disorder aggravated by the accident and post-traumatic stress disorder caused by the accident. He assessed WPI at 8% which he reduced by 1% for the pre-existing impairment.
The Panel understands no application for review has been lodged in respect of that assessment.
RE-EXAMINATION FINDINGS
Ms Fear attended the re-examination with Medical Assessor Gibson on 24 January 2025. The following are the Medical Assessor’s findings.
History provided by Ms Fear
Pre-accident medical history
Ms Fear said she had no relevant medical or surgical history and no accidents or injuries before the motor vehicle accident of October 2014.
Motor accident October 2014
Ms Fear recalled she had been driving a Toyota Avensis seven-seater sedan. Her seat belt was fastened, and she had no passengers in the car. She was travelling along the Hume Highway near South Strathfield and was on her way to the city. She had stopped at lights, with her foot on the brake, when she was hit from behind by another vehicle. She said that as she had allowed sufficient space between her car and the vehicle in front there was no front-end impact and so no air bag deployment.
After the accident she and the other driver had moved their vehicles into a side street. She had initially noticed headache and low back pain. An ambulance was called, and she was transferred to Canterbury Hospital. She could not recall what had happened to her car.
While at the hospital she was given some analgesics for pain, and she possibly had some imaging performed but she was not clear on this.
She said that since that accident she had ongoing problems with her low back, and more recently had some imaging of her low back and cortisone injections undertaken. When specifically questioned about this, Ms Fear said her low back and hip injuries had arisen in the 2014 accident and were unrelated to the 2019 accident. She was unsure if her neck or shoulder was injured as well, but she added that as her low back and hips were very painful this would have “masked” any other symptoms at the time.
In summary, she said that as a consequence of the 2014 accident she had injured her low back and had developed some pain referral into the left greater than right leg.
When asked about any neck or shoulder injury sustained in the 2014 accident or afterwards and in particular the report of Dr Keller, she said that she could not recall and added that her memory is not that good and that potentially she could have "mixed the timelines up."
Ms Fear said that both the 2014 and the later subject accident had affected her psychologically and sometimes the pain was unbearable. She was unsure which accident had been worse.
She said after the 2014 accident she had taken a range of medications including Endone, OxyContin, Norspan, Lyrica and meloxicam. She could not recall when she stopped taking these medications or how long it had been prior to the subject accident.
History of the subject accident
On 12 November 2019, Ms Fear said she was the seat-belted driver of a late model Honda Odyssey. She had her three children in the car, her oldest in the front seat and the other two in the middle row of the vehicle. She was travelling along Punchbowl Road and was on her way to her parents' place. She had been waiting to make a right turn into Waratah Street and had her indicator on. She said that police and undercover officers were conducting an operation and were detaining a number of suspects and searching cars in the vicinity. She said the driver of a four-wheel drive with a bull bar was travelling behind her and was more focused on the police operation than on the cars in front, having admitted as much after the accident. He collided with the rear of her car.
A policewoman in the vicinity had told Ms Fear to move her car to a side street, which she did, as this was only a few metres away. She had got out of her car and exchanged details with the other driver. She said the spot they pulled up in was in fact in front of her parents' house. Her father had come out and taken her children inside as they were very distressed and crying.
Ms Fear said she had no significant pain and was more in shock and worried about her kids. Whilst at her parents' place, she said that she contacted her GP to organise to have her children seen.
The clinical notes of Dr Ho in respect of Ms Fear did not record an attendance on the day of the accident (12 November 2019) but his clinical notes suggest a certificate of capacity was completed at an attendance on 18 November 2019. Ms Fear maintained that the GP examined them all on the day of the accident and at that stage she had neck pain and headache. She said the children recovered after a week or so.
Ms Fear was unsure why her left shoulder was not mentioned by Dr Ho in his medical certificate. After thinking about it, she said she felt that the pain in her left shoulder may have developed later over time, or it was not evident at the time she visited Dr Ho. This delay in onset of left shoulder symptoms is also the explanation for why there was no mention in the claim form of any left shoulder symptoms.
Ms Fear travelled to the United States, she thinks this was about a week after the accident. She said the trip was pre-organised as she was accompanying her aunt back home as her older aunt was unable to travel alone. She said she was over there for a little under two weeks and was staying with her aunt in Boston. When asked, she said she had not lifted any heavy luggage. When asked whether the flight had any adverse impact on her neck or shoulders, she said it “probably would have”.
After returning from the United States, she visited her GP and complained of pain. A right shoulder ultrasound had been performed and this demonstrated a right supraspinatus tear and right subacromial bursitis. She was referred for physiotherapy.
She said that at a point in time after this, she has had steroid injections to both shoulders. She thinks she has had a total of three to four injections to each shoulder but was not sure. She said the injections were helpful initially, but on subsequent injections the period of relief had become shorter and shorter.
Ms Fear had come under the care of shoulder surgeon Dr Murrell, and she had left shoulder surgery in March 2024. She said this had helped with the pain and has almost produced total resolution of the left shoulder pain. She had physiotherapy treatment after the surgery. She now feels her right shoulder is more problematic than her left shoulder.
When asked how she thought she had injured her right shoulder in the subject accident, she said that she had her body and head turned to the right at the point of impact and she was jolted forwards. When asked whether there had been any prior imaging of her right shoulder before the subject accident, she said she was unsure.
She then volunteered that in mid-2024 there had been significant marital discord which had led to her requiring counselling. She said her husband moved out of the house on
28 October 2024, but even between July and October they were sleeping separately. She added tearfully that they had been together for 30 years and she had also been taking care of his mother and that after the separation her mother had "turned on her as well."
Subsequent accidents and medical conditions
Ms Fear said that towards the end of last year she was admitted to Canterbury Hospital because she was suffering with severe rectal bleeding. She said she was bleeding constantly over the six days of her admission. She underwent a colonoscopy after which she was advised that she had a large, ruptured haemorrhoid.
Current situation
Current complaints
Ms Fear said her neck pain is present most of the time and she rated the severity of it at between 5 to 8/10. The pain radiates toward the trapezius regions bilaterally and into the back of the head and up into the forehead.
She said there is now only mild discomfort in the left shoulder since the surgery.
There is diffuse pain over the right shoulder, and this is present most of the time and rated between 5 to 8/10 in severity.
She said she experiences tingling in the left middle, ring and index finger and tingling over the entire right hand but not in the arm. She did not recall any similar complaints after the 2014 accident.
Current treatment
Ms Fear’s current medications are Panadol Osteo 4-6 tablets per day, ibuprofen 4 tablets a day, amitriptyline (antidepressant) 20mg at night and escitalopram (antidepressant and anti anxiety) 20mg daily.
She attends Mendphysio in Kingsgrove twice a week.
She continues to have psychological counselling.
Imaging studies
No imaging films or scans were brought by Ms Fear to the assessment.
Reports of the following pre-accident imaging studies were on file:
(a) Plain X-rays of the cervical, thoracic and lumbar spine dated 15 October 2014 showing “marked cervical degenerative spondylosis at multiple levels with straightening of the normal cervical lordosis and suspected foraminal stenosis. No bony pathology is detected on x-rays of the thoracic spine. There is mild spondylotic change noted in the lower lumbar spine".
(b) MRI scan of the lumbar spine dated 5 June 2015 showing “There is disc dehydration at L3/L4, L4/L5 and L5/S1 with associated disc bulges. There is bilateral foraminal narrowing at L5/S1 with potential irritation of the exiting L5 nerves on each side. There is an annular tear in the left femoral region. There is advanced facet joint arthrosis at L5/S1".
(c) Whole Body Bone Scan dated 2 December 2015 showing "Degenerative/arthritic changes as described above, mainly affecting the cervical discs. Low grade uptake in both L5/S1 facet joints. Elsewhere no significant facet joint a arthropathy detected".
(d) Ultrasound left shoulder dated 14 November 2017 showing “Sonographic evidence of subacromial/subdeltoid bursitis. Minimal shoulder impingement is present".
(e) Ultrasound guided left subacromial/subdeltoid bursal injection dated
21 November 2017.(f) Ultrasound guided left subacromial/subdeltoid bursal injection dated
5 March 2018.Reports of the following imaging studies undertaken after the accident were on file:
(a) Ultrasound right shoulder dated 18 November 2019 showing "There is rotator cuff tendinosis with a full-thickness supraspinatus tear. Subacromial bursitis and impingement. Rotator cuff interval flow can also be a sign of concomitant capsulitis although the shoulder does not appear clinically frozen at the time of examination".
(b) Ultrasound guided right subacromial bursal injection dated 31 December 2019.
(c) Ultrasound right shoulder dated 12 October 2021 showing "Full-thickness mid supraspinatus tear on a background of calf tendinopathy evident. There is subacromial/ subdeltoid bursal impingement which may benefit from cortisone injection".
(d) Ultrasound left shoulder dated 12 October 2021 showing “A high grade partial bursal sided tear of the supraspinatus noted on a background of cuff tendinopathy. There is subacromial/subdeltoid bursitis which may also benefit from cortisone injection depending on clinical assessment".
(e) Ultrasound guided right shoulder bursa injection dated 15 October 2021.
Physical examination
Ms Fear is left handed. She was 163cm tall and weighed 77kg. She had a normal gait. She could walk on heels and toes.
Cervical spine
On examination of her neck, there was three-quarters normal movement in all planes (flexion – extension; lateral rotation – left and right, and rotation – left and right). There was no asymmetry, muscle spasm or guarding observed.
On examination of the upper limbs:
(a) there was no sign of muscle atrophy in the upper arm or forearms and circumferential measurements at the arms were 26cm (10cm above the olecranon) on both sides and forearms measured 23cm on the right and 22.5cm on the left (10cm below the olecranon);
(b) reflexes were present and symmetrical;
(c) power was normal;
(d) there were no nerve root tension signs, and
(e) there was some patchy inconsistent sensory findings over both hands which did not follow a dermatomal distribution or suggest any injury to a nerve or nerve root.
Shoulders
There was no visual evidence of muscle atrophy in any of the shoulder musculature.
Active movements were measured with a goniometer and recorded below. Where there is a single figure (e.g. left extension) the measurement was consistent across three attempts. Where there is a range give, the first and third measurements are provided and in all cases the second measurement was between the two.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120 -130 degrees
120 – 170 degrees
Extension
50 – 60 degrees
50 degrees
Internal Rotation
40 degrees
90 degrees
External Rotation
70 - 80 degrees
60 degrees
Abduction
120 -130 degrees
120 - 130 degrees
Adduction
40 - 30 degrees
50 degrees
When asked about the variability in some of the measurements within the re-examination she explained this was related to initial pain. When asked about the variability between other examinations undertaken by other examiners (see attachment A to these reasons) the claimant also explained this was related to pain and the treatment she was having at the time.
CONSIDERATION OF THE ISSUES
When did the claimant first see the doctor?
Dr Ho’s certificate of fitness is dated 12 November 2019 and it records the claimant first saw him on 12 November 2019. The right shoulder ultrasound report of 18 November 2019 indicates the ultrasound was requested on 16 November 2019. There is no clinical note corresponding to either 12 November or 16 November 2019 in Dr Ho’s records.
Dr Ho’s clinical records have an entry on 18 November 2019 which states that he completed a medical certificate.
The claimant told Medical Assessor Gibson that she was worried about her children (who were in the car) and that Dr Ho saw them on 12 November 2019 and then later she said that he saw her at the same time.
It is possible that Dr Ho questioned the claimant about her state of health at the time he was examining her children and did not formally evaluate her, alternatively it is also possible he examined her and simply failed to make an entry in his records.
The Panel is satisfied that Dr Ho completed the medical certificate for the claim form on
18 November 2019 and that he had seen the claimant at some stage before then (likely
16 November but possibly 12 November 2019).
Is the claimant’s history reliable?
Dr Keller records in April 2022 “on clear and specific questioning” that “the claimant had no previous injuries or complaints affecting the neck or shoulder” and that she could not recall investigations or treatment to the neck or shoulder. While she remembered a previous accident, she told Dr Keller she was uncertain about the date and had lower back pain, some treatment and she made a full recovery.
The claimant gave a history to Medical Assessor Nair of a previous accident (which he records as in 2015 not 2014) in which the claimant injured her back and neck. He was not given a history of previous shoulder problems although her found pre-existing conditions based on the records.
The claimant told Medical Assessor Gibson that she injured her lower back and had hip injuries as a result of the 2014 accident, but she was unsure of any other injury. She admitted her memory was poor.
The Panel notes the similarities between the two accidents (rear end collisions) and that the records of Dr Ho suggest similar complaints arising out of the two accidents. The Panel accepts that her earlier motor accident was 10 years ago and that the effluxion of time could have affected the claimant’s memory of the details of it and events after it.
The Panel therefore prefers the documentary evidence (the records of Dr Ho from before the current accident and the medico-legal reports from the 2014 accident claim) to the history provided by the claimant at the re-examination.
Causation and diagnosis
On specific questioning by Medical Assessor Gibson, the claimant denied any injury to her middle or lower back in the current accident maintaining that her lower back was injured in her 2014 accident. The claimant alleges injuries from the current accident to her neck and shoulders only.
The Panel notes the photographs of the damage done to the claimant’s vehicle in the current accident. The Medical Assessors are of the view that the damage indicates an impact of moderate severity to the rear of the vehicle and that the claimant could have sustained injury to her neck and shoulders in the accident. Noting the claimant was the driver, with the seat belt over her right shoulder, a right shoulder injury could have occurred. The Medical Assessors are doubtful that the mechanism of accident could have resulted in a significant injury to the claimant’s left shoulder but consider it is possible that the pre-existing condition could have been aggravated or exacerbated.
The question remains whether the claimant did injure her neck and shoulders in the accident. There are contemporaneous complaints of injury to the claimant’s doctor and the timely submission of a claim form which mentions the claimant’s neck and right shoulder. The claimant’s right shoulder was imaged within a week of the accident. The Panel is therefore satisfied that the claimant did sustain an injury to her neck and her right shoulder.
The claimant had pre-accident left shoulder symptoms investigated and treated from 2014 to 2017. The claimant did not include the left shoulder in her claim form and Dr Ho does not include it in his certificate of fitness. The claimant’s first post-accident record of left shoulder pain was on 7 February 2020 (in the context of anxiety) and then not until 19 January 2021. The left shoulder was first imaged after the accident on 12 October 2021.
The Panel is not satisfied that the claimant injured her left shoulder in the accident. The absence of any reference to it in the claim form (signed by the claimant) or in the certificate of capacity (signed by her treating doctor) is significant in the Panel’s view and in particular in the light of her pre-accident left shoulder condition. The further gaps between February 2020 and January 2021 and then from January 2021 until the first post-accident imaging studies of the left shoulder were done is also telling.
If the claimant did sustain an injury to her left shoulder, then the Panel is of the view it was a soft tissue injury which exacerbated the pre-existing condition the effects of which have ceased. Any current left shoulder complaints are, in the view of the Panel related to the pre-existing condition.
The Panel notes that Medical Assessor Nair had determined the claimant’s left shoulder had been injured in the accident but not the right. This is of course a different result to that of the Panel. The Panel notes that Medical Assessor Nair referred to ultrasounds of the right shoulder dated 12 October 2017 and 18 November 2018. Ultrasounds corresponding to these dates do not appear in the records although there are ultrasounds dated
12 October 2021 and 18 November 2019. It would appear Medical Assessor Nair’s views on causation of the right shoulder injury may have been infected by this apparent error in the dates.
Diagnosis of neck injury
The claim form and medical certificate in respect of the 2014 accident documents neck pain, the current claim form and medical certificate attached to the 2019 claim form documents injury to the neck.
Radiology of the cervical spine from 2014 and 2015 reveals the presence of degenerative changes in the claimant’s cervical spine. The Panel has not been taken to any cervical spine imaging performed after the 2019 accident.
The claimant travelled to the United States a week or two after the accident and returned to Dr Ho on 12 December 2019 without complaint of neck pain but with complaints of lower back and right shoulder symptoms. After the initial complaints, the claimant’s first attendance on Dr Ho when neck pain is specifically mentioned was on 5 May 2023.
Medical legal experts for both the claimant (Dr Dias November 2021) and the insurer
(Dr Keller April 2022) have a history of neck pain.
The records of Dr Ho do not suggest the claimant has been prescribed any pain killers between the date of the accident and 2021 whereas there were scripts written for pain killers after the 2014 accident.
The Medical Assessors on the Panel are of the view the claimant sustained a soft tissue injury to her neck in the accident aggravating pre-existing degenerative changes. Bearing in mind the degree of impairment assessed following the re-examination by Medical Assessor Gibson, the Panel does not propose to further consider whether the aggravation caused by the accident continues or whether the current state of the claimant’s neck is related only to the underlying degenerative condition.
Diagnosis of right shoulder injury
There is no evidence of any significant pre-existing right shoulder symptoms. The claimant complained of symptoms in both her shoulders after the 2014 accident, but this appears to be in the context of referred pain from her neck. The Panel is not satisfied that the claimant had any radiology, imaging studies or steroid injections in her right shoulder before the accident.
The claimant had significant arthritic and degenerate changes in her right shoulder when it was imaged after the accident, and it is the Medical Assessors’ view that the accident rendered those changes symptomatic. The claimant’s current symptomatology (pain and restriction of movement) is, in the Panel’s view, caused by the accident.
IMPAIRMENT ASSESSMENT
Assessment of neck impairment
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111 of the Guidelines).
The spine is divided (cl 6.131) into three regions. If injury to the whole spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132).
There are five diagnostic related categories (see Table 6.7). Clause 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102 – 107 of the AMA 4 Guides as amended. There are neurological differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures) to be considered. There are no structural inclusions in Ms Fear’s case.
The first possible category is DRE category I which is selected if there are symptoms which may include pain.
Another possible category is DRE category II which requires there to be:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but where there is no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
A DRE category III finding requires there to be radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination”:
(a) loss or asymmetry of reflexes (see Table 8);
(b) positive sciatic nerve root tension signs (see Table 8);
(c) muscle atrophy and/or decreased limb circumference (see Table 8);
(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.
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor,[35] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[36]
[35] [2011] NSWSC 351.
[36] This is referred to as the “Nguyen Principle”.
What is Ms Fear’s neck impairment?
Ms Fear alleges injury only to her cervical spine. On specific questioning she denied any injury to her thoracic or lumbar spine caused by the current accident.
Ms Fear complains of pain in her neck which radiates towards the trapezius and into the back of her head and up to her forehead. This qualifies Ms Fear for a DRE category I finding at least.
Ms Fear described no pain of a shooting type, and no pain radiating into the shoulders or upper limbs. There was no complaint of burning and there was no guarding or dysmetria on examination. She did complain of tingling in three of the fingers of her left hand, but not in the left hand or left arm. She complained of tingling in the entire right hand including the fingers but no tingling anywhere in the right forearm or upper arm. It is the clinical judgment of the Medical Assessors that these complaints of tingling do not “follow the distribution of a specific nerve root” exiting the left or right side of the cervical spine as required by the Guidelines.
Ms Fear does not therefore qualify for a DRE category II finding.
On examination by Medical Assessor Gibson there were none of the five signs of radiculopathy. While there were some sensory findings, these were patchy and inconsistent. It is the clinical judgment of the medical members of the Panel that these symptoms did not follow a dermatomal distribution and therefore Ms Fear does not qualify for a DRE category III finding.
Ms Fear has a 0% WPI (DRE category I) for her cervical spine injury. In the light of that finding the Panel does not propose to consider any deduction for any pre-existing impairment.
The Panel notes that a finding of 0% does not mean that the claimant did not injure her neck in the accident or that she does not have symptoms in her neck as a result of the accident. A finding of 0% simply means that Ms Fear does not satisfy the requirements of the Guidelines for a higher level of impairment.
Assessment of shoulder impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others.
There are several methods of assessment provided in AMA 4:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
In Ms Fear’s case, it is the clinical judgment of the Medical Assessors that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of six units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA4.
The Guidelines note the potential for difficulties with the range of motion method and says:
“6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a) a goniometer should be used where clinically indicated
(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel notes there was variation of the claimant’s range of motion during the re-examination. The claimant said this was due to the varying level of her pain. This is a plausible explanation for the movements noting that it is the clinical experience of the medical members of the Panel that range of motion in a joint can improve with repetition.
The variation in measurements over time and between examinations can be explained by the progress of the condition, the claimant’s response to treatment and the state of her left shoulder.
The Panel is of the view that the best (highest) range of motion measured by Medical Assessor Gibson is likely to be the best indicator of the claimant’s current permanent impairment and proposes to adopt these figures in the assessment.
What is Ms Fear’s right shoulder impairment?
Using the best range of motion achieved by Medical Assessor Gibson as the measure of impairment, the result of the claimant’s measurements is:
Unit of Movement
Normal
Range of motion
UEI
Flexion
180 degrees
130 degrees
3% Figure 38 AMA 4
Extension
50 degrees
60 degrees
0% Figure 38 AMA 4
Abduction
180 degrees
130 degrees
2% Figure 41 AMA 4
Adduction
95 degrees
40 degrees
0% Figure 41 AMA 4
Internal Rotation
90 degrees
40 degrees
3% Figure 44 AMA 4
External Rotation
90 degrees
80 degrees
0% Figure 44 AMA 4
TOTAL UEI
8% UEI = 5% WPI
An 8% UEI translates to a 5% WPI.
There is no evidence of any pre-existing symptomatic impairment therefore the Panel will not make any deduction in accordance with cl 6.31 – 6.33 of the Guidelines.
CONCLUSION
In summary, the Panel assesses the claimant’s WPI as follows:
(a) cervical spine – neck DRE category I = 0%;
(b) right shoulder 5%, and
(c) left shoulder- no injury or no impairment caused by the accident.
Medical Assessor Nair found a 6% impairment and included that figure in his certificate. As the Panel has come to a different view on causation and found a different degree of impairment it follows that Medical Assessor Nair’s certificate must be revoked and a fresh certificate issued.
Attachment A – comparative shoulder measurements
| Left Shoulder | Dr Dias 2 Dec 16 | Dr Dias 26 Nov 21 | Dr Keller 4 Apr 22 | Medical Assessor Nair 1 Sep 23 | Review Panel 24 Jan 25 |
| Flexion | 100 | 140 | 160 | 140 | 120/170 |
| Extension | 50 | 50 | 40 | 50 | 50 |
| Abduction | 100 | 120 | 90 | 120 | 120/170 |
| Adduction | 50 | 50 | 40 | 60 | 50 |
| Internal rotation | 30 | 60 | 90 | 60 | 90 |
| External rotation | 90 | 90 | 90 | 90 | 60 |
| Right Shoulder | Dr Dias 2 Dec 16 | Dr Dias 26 Nov 21 | Dr Keller 4 Apr 22 | Medical Assessor Nair 1 Sep 23 | Review Panel 24 Jan 25 |
| Flexion | 110 | 120 | 160 | 120 | 120/130 |
| Extension | 50 | 50 | 40 | 50 | 50/60 |
| Abduction | 100 | 120 | 110 | 120 | 120/130 |
| Adduction | 50 | 50 | 40 | 60 | 40/30 |
| Internal rotation | 40 | 50 | 90 | 60 | 40 |
| External rotation | 90 | 90 | 90 | 90 | 70/80 |
0
1
0