Fox v AAI Limited t/as GIO
[2023] NSWPICMP 79
•9 March 2013
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Fox v AAI Limited t/as GIO [2023] NSWPICMP 79 |
| CLAIMANT: | Jeffrey Fox |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Wing Chan |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 9 March 2013 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and review under section 63 of Medical Assessor (MA) Home’s decision that claimant had a WPI not greater than 10%; insurer’s application for review; claimant’s vehicle hit from behind in a roundabout; claimant alleged injury to neck and right shoulder; claimant had earlier injury in 2014 to the neck and a C5/6 fusion but which was not causing symptoms; MA found 18% upper extremity impairment (UEI) from which he deducted 4% on the basis of an impairment found in the left shoulder resulting in a finding of 8% WPI; insurer conceded claimant injured right shoulder leading to development of adhesive capsulitis and current presentation; primary issue methodology of impairment assessment and whether there should be a deduction for the contralateral joint; Held – claimant sustained soft tissue injury aggravating the previous injury which had recovered leaving no impairment; the claimant’s shoulder movements were inconsistent on examination; measurements suggested impairment of 13% WPI; consideration of clauses 1.40 and 1.50 and how to deal with inconsistency; the Panel was satisfied the claimant had an impairment and that 13% was a plausible finding; consideration of clause 1.51 and adjustment for contralateral uninjured shoulder; left shoulder displayed near normal range of motion and therefore no deduction made; claimant’s scarring assessed in accordance with TEMSKI at 0%; Certificate of MA Home revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Home dated 23 May 2022. 2. Certifies that the degree of Jeffrey Fox’s permanent impairment resulting from the injuries caused by the motor accident on 23 October 2016 is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Jeffrey Fox was involved in a motor accident on 23 October 2016. Mr Fox was the driver of a car, stationary at a roundabout when he was hit from behind by another car.
Mr Fox made a claim for damages against GIO, the third-party insurer of the vehicle that hit his car and which Mr Fox says caused the accident and his injuries.[1]
[1] The precise date of the claim is not known. The Panel has been provided with a copy of only part of the claim form.
A medical dispute has arisen in the course of the claim about whether Mr Fox is entitled to damages for non-economic loss.
On 23 May 2022 Medical Assessor Home determined the claimant’s whole person impairment (WPI) assessment was 8% which does not allow Mr Fox to recover non-economic loss damages.
Mr Fox was dissatisfied with the result and lodged an application with the Personal Injury Commission (the Commission) seeking a review of Medical Assessor Home’s decision.
On 30 August 2022, the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and on 9 September 2023 the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Mr Fox’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
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.[3]
[3] See ss 132 and 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Shoulder impairment
Impairment of the upper extremities which includes the shoulder is undertaken in accordance with chapter 3 of AMA 4 as modified by the Guidelines.
Clause 1.48 of the Guidelines acknowledges the different methods of assessment, one of which is the range of motion method. Clause 1.50 says this:
“1.50 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:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2 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.
1.50.3 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.
1.50.4 If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5 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.”
Once a determination is made that an impairment is present, there is specific guidance given to the assessment of upper extremity impairments if there is an impairment (say because of age) in the other uninjured shoulder as follows:
“1.51 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.
1.52 When using clause 1.51 (above), the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 1.51 is used, clause 1.51 must be applied to each joint.”
ASSESSMENT UNDER REVIEW
Medical Assessor Home was asked to assess the following injuries:
(a) neck – soft tissue injury, aggravation of pre-existing condition, and
(b) right shoulder – soft tissue injury, rotator cuff injury, adhesive capsulitis.
Medical Assessor Home took the following history from the claimant:
(a) the claimant had a C5/6 discectomy fusion in 2014 which he said gave him relief and which caused no neck symptoms before the accident;
(b) the claimant was the driver of a Jeep, wearing a seat belt when he was struck from behind. There was no collision with the vehicle in front;
(c) the claimant experienced pain in the neck and experienced paraesthesia into the right arm and in the right shoulder;
(d) the claimant had physiotherapy and review by Dr Darwish his previous neurosurgeon;
(e) he says, after a period of physiotherapy, Dr Nabavi an orthopaedic surgeon injected his right shoulder with no benefit, and
(f)
in terms of his shoulder Mr Fox was then diagnosed with adhesive capsulitis, had a manipulation under anaesthetic which gave him transient benefit. He had a capsular release followed by a fourth procedure on
3 May 2019 which did not improve things either.
The claimant reported persistent chronic right shoulder pain at rest with sharp pain on sudden or unexpected movement. He has restricted movement of his shoulder and cannot toilet himself with his right hand and reaches using his left hand and arm.
The claimant takes Gabapentin and Panadeine Forte at night.
The claimant was examined by Medical Assessor Home with results as follows:
(a) neck – there was no muscle spasm or guarding, neck movement was symmetrical and limited but pain free. Neurological examination was generally normal with some reduced sensation in the fingertips of the right and little fingers, and
(b) right shoulder – there was deltoid and muscle wasting consistent with relative inactivity of the upper limb.
Medical Assessor Home recorded the following measurements:
Plane of movement
Right
Left
Flexion (normal 180)
80
150
Extension (normal 50)
30
60
Adduction (normal 50)
10
50
Abduction (normal 180)
70
160
Internal rotation (normal 90)
20
70
External rotation (normal 90)
20
90
Medical Assessor Home notes that the claimant’s uninjured left sided shoulder motion was reported to be pain free but restricted.
Medical Assessor Home reviewed the documentation. He notes that he has undertaken his impairment rating based on the measurements and findings at his assessment.
Medical Assessor Home noted early complaints of neck pain, but that the claimant reported no ongoing symptoms and determined the soft tissue injury to the claimant’s neck has resolved.
The claimant has consistently complained of arm and shoulder symptoms on the right side with continued pain and stiffness.
Medical Assessor Home calculated an 18% upper extremity impairment (UEI) of the right shoulder and then considered the claimant’s left uninjured shoulder had a 4% UEI. He considered if the claimant’s right shoulder had not been injured, it too would have returned measurements that were similar immediately before the accident and therefore deducted 4% UEI as the pre-existing impairment resulting in an overall impairment of 14% UEI which is 8% WPI.
He also assessed the claimant’s surgical scarring at 1% but did not include it as the parties were not on notice of it.
On the basis that the claimant’s neck injury had resolved and therefore there was no impairment caused by this accident, no impairment assessment percentage was given for any cervical spine injury.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant argues that the Medical Assessor miscalculated the UEI for right shoulder flexion which should have been 7% not 6%. Figure 43 of AMA 4 provides a 7% UEI for 80 degrees of shoulder flexion. The Panel agrees there is an error and that 80 degrees of flexion would result in a UEI of 7% which suggests a total UEI of 19% which translates to a WPI of 11%.
The claimant says the Medical Assessor should not have used the left shoulder as a baseline measure for the claimant’s pre-accident right shoulder impairment because there is a history of pre-accident left sided neck pathology and left arm symptoms.
The Medical Assessor failed to give reasons for why the left and right shoulders were expected to be the same before the accident and says the Medical Assessor has not complied with cl 1.51 of the Guidelines.
The claimant provided additional short submissions seeking:
(a) an in-person examination of the claimant to assess the claimant’s shoulder motion and scarring, and
(b) the assessment of the claimant’s scarring.
Insurer’s submissions
The insurer says that the medical evidence is that the claimant had little if any symptoms in the neck radiating to the uninjured left shoulder at the time of the accident.
The insurer also says that the claimant’s left shoulder was uninjured in the accident and therefore it was reasonable to use the left shoulder as a baseline.
Procedural matters
On 21 October 2022, the Panel met to discuss the proceedings and in particular the injuries and issues in dispute with a view to promoting discussion between the parties and resolution of the dispute, or at least ascertaining the real issues in dispute.
The Panel noted Medical Assessor Home had determined that the claimant’s neck injury had recovered and therefore there was no impairment assessment undertaken. The Panel noted the submissions from the parties did not take any issue with Medical Assessor Home’s assessment of the neck injury. The Panel advised the parties that, subject to any further submissions the Panel did not intend to re-assess the claimant’s neck injury.
The Panel also noted that there did not appear to be an issue raised by the insurer with regard to causation of a right shoulder injury. The Panel further noted that the submissions of the parties were limited to an issue about the adjustment of the right shoulder impairment for a pre-existing condition in accordance with cl 1.51 of the Guidelines. The parties are asked to confirm whether there is any issue about whether the claimant injured his right shoulder in the accident.
The Panel noted the claimant’s additional submissions at page 312 of the claimant’s bundle and advised that the claimant’s scarring would be assessed.
The Panel requested updated reports from the claimant’s General Practitioner (GP) and notes from Dr Chaudri from 2013 to the date of the accident.
Final submissions
In its report following the teleconference, the Panel invited final submissions from the claimant by 25 November 2022 and from the insurer by 16 December 2022.
No further submissions were received from the claimant’s solicitor although
Dr Chaudri’s notes were provided.
The insurer provided final submissions on 15 December 2022.[6] The insurer confirmed it relied on a report from Dr Powell and Medical Assessor Home’s determination that:
(a) the claimant sustained a right shoulder injury being a minor soft tissue strain;
(b) which has led to the development of adhesive capsulitis in the right shoulder, and
(c) while the claimant had degenerative changes in his shoulder and diabetes which predisposed him to the development of capsulitis, the accident was a materially contributing cause to the claimant’s current right shoulder presentation.
[6] Document AD5 in the Commission’s electronic file.
The insurer confirmed the real issue in dispute was the method of impairment assessment and in particular the deduction for a pre-existing impairment.
The insurer points to the clinical notes of Dr Chaudri which the insurer summarises as follows:
(a) there are five attendances in 2013 referring to neck pain radiating to the left arm the last of which was 27 July 2013;
(b) there were three further attendances where there was no mention of neck or shoulder symptoms, and
(c) the first attendance at this practice after the accident was 20 January 2018 when the claimant complained of right shoulder symptoms.
The insurer says the claimant’s July 2014 neck fusion surgery resolved the claimant’s neck and left arm radicular symptoms which means that the claimant’s left shoulder was “uninjured” at the time of the accident for the purposes of cl 1.51 of the Guidelines.
The insurer says Medical Assessor Home was therefore entitled to treat the left shoulder as a baseline for the purposes of adjusting the claimant’s right shoulder WPI.
The insurer contacted the Panel through the portal on 12 January 2023 in respect of updated notes from the claimant’s GP and advised that one of the practices the claimant had consulted had refused to provide updated records. The insurer requested the Panel request the records. The Panel has considered the documentation it has and does not believe it would be greatly assisted by these updated records (noting the limited matters in issue) and did not therefore propose to defer its assessment any further by requesting these records.
REVIEW OF THE EVIDENCE
General observations
The claimant has provided a bundle with over 300 pages of documents. The insurer has provided a bundle with over 200 documents. There are additional records from the claimant’s GP.
The Panel is mindful of the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[7] who said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[7] [2022] NSWSC 1079.
Noting the insurer’s concession with regards to causation and the very limited issue in dispute between the parties, the Panel does not intend to summarise every document that has been put before it.
Claim form and claim documents
The claim form[8] indicates a previous claim for compensation said to be “medical Neg psychiatric injuries sustained in around March 2012”.
[8] Page 8 of the insurer’s bundle. The claim form is incomplete and therefore the date of it is not known.
The only injury identified by the claimant in his claim form is “soreness of neck”. He nominated his doctor as Dr Le of Mt Annan and said he was prescribed pain killers.
Dr Tam completed the medical certificate attached to the claim form noting that the claimant had been a patient for four years, that he had a C4/5 fusion and that he sustained neck pain from the car accident. Dr Tam said he had prescribed physiotherapy.
The claimant provided a statement for the purpose of the damages assessment proceedings.[9] He says:
(a) before the accident, in 2014 he developed numbness and tingling down his left arm and went to see his usual GP, was referred to Dr Darwish and had surgery;
(b) after the surgery he made a full recovery;
(c) he had continued to work before his surgery;
(d) he broke his left wrist when he fell of a motorcycle when he was young;
(e) he refers to a claim for psychological issues following an incident which led to a personal injuries claim which settled;
(f) he says the current accident caused the car to move forwards and he was wearing a seatbelt over his right shoulder. He said the other car was badly damaged and a “write off”;
(g) he documents the investigations and treatment he has had but says he has difficulty now reaching overhead or behind him, and
(h) he details the difficulty he has had at work and with his domestic duties.
[9] Page 276 of the claimant’s bundle. It is unsigned but bears a date of 2019.
Treating medical records and reports
There are a number of treatment records summarised as follows:
(a) a letter from Dr Darwish to Dr Hassan dated 23 July 2013[10] thanking him for the referral. The claimant had a two-month history of neck pain radiating to the left arm with paraesthesia. He considered the MRI which showed a large C5/6 disc protrusion and he recommended surgery;
[10] Page 62 of the insurer’s bundle.
(b) a letter from Dr Darwish to Dr Chaudri dated 4 August 2014[11] four weeks after the surgery – the claimant complained of mild neck pain. A similar letter dated 16 September 2014 noted no left arm pain and significantly improved neck pain. There was to be a further review six months later, but it appears this did not take place;
[11] Page 63 of the insurer’s bundle.
(c)
Dr Darwish wrote to Dr Le on 18 September 2017[12] noting “he was doing well until October last year” when he had the car accident. Dr Darwish has a history of neck pain, pain in the right shoulder and down the right arm with paraesthesia in the right hand. Physiotherapy had not helped. The claimant’s symptoms were suggestive of a C7 issue, and the doctor wanted to have an MRI scan of the right shoulder done, along with the spine to check on the fusion. After the MRI of the shoulder, on 16 October 2017,
[12] Page 65 of the insurer’s bundle.
Dr Darwish advised Dr Le he had referred the claimant to Dr Nabavi;
(d) Dr Le wrote a “to whom it may concern”[13] letter dated 30 January 2017 which answers a series of question (the questions are not available) but suggests the claimant attended his rooms on 24 October 2017 with a tender neck with a full range of motion and he diagnosed a whiplash injury “with no disability”;
(e) a letter from Dr Darwish to Dr Hassan dated 24 October 2017[14] – he records right shoulder problems since a car accident with an earlier history of cervical spine fusion. The claimant had restricted shoulder motion and the MRI suggested adhesive capsulitis and subacromial impingement. He was advised to have an injection and Celestone, local anaesthetic and hydro-dilation. After this, Dr Nabavi reported back to Dr Darwish that the claimant had near complete resolution of his symptoms but as they had returned Dr Nabavi recommended a manipulation under anaesthetic;
(f)
Dr Nabavi undertook the manipulation on 4 December 2017 and on
18 December 2017 reported to Dr Darwish[15] that the procedure had resulted in a good result with flexion now to 150 degrees and improved pain levels. The claimant was referred for physiotherapy and advised to take anti-inflammatories, and
(g) Further injections into the shoulder occurred in February and March 2018 with little effect. Dr Nabavi advised surgery in the form of arthroscopic release and a biceps tenotomy which occurred on 19 May 2018.[16]
[13] Page 61 of the insurer’s bundle.
[14] Page 76 of the insurer’s bundle.
[15] Page 79 of the insurer’s bundle.
[16] Page 83 of the insurer’s bundle.
There are copies of physiotherapy progress notes from Canberra Hospital. By
19 January 2018 the claimant had 180 degrees of flexion and 170 degrees of abduction and 40 degrees of extension in his right shoulder.
There are GP notes from the Mount Annan Medical Centre (Dr Le) which commence in 2020 and end on 19 July 2021[17]. The last consultation at that practice relevant to the claimant’s shoulder was on 11 December 2020 and a script for Panadeine Forte was provided.
[17] Page 156 of the insurer’s bundle.
The claimant has also provided updated records from Narellan Medical and Dental Centre to 2022.[18] The most recent complaints concerning shoulder pain were in September and October 2020. At that time the claimant was taking Panadeine Forte on an off with dull pain and limited abduction over 90 degrees.
Medico-legal reports
[18] Document AD4 in the Commission’s electronic file.
Insurer’s medico-legal reports
Dr Powell provided a report to the insurer on 15 August 2018.[19] He noted the claimant was “a little vague for dates and details”. He took the following history from the claimant:
(a) Mr Fox could not remember the date of the accident;
(b) he said he was hit from behind and there was damage to the front of the car to the windscreen;
(c) he had pain around the neck region and developed tingling and pins and needles in his right upper limb down to his fingers;
(d) he went to his doctor because of the sensory symptoms in his right upper limb and these were the same as he had previously (in his left arm) before his cervical fusion;
(e) he was referred to Dr Darwish who advised surgery was not necessary and the symptoms were coming from his right shoulder rather than the neck;
(f) due to prolonged symptoms Mr Fox was referred to Dr Nabavi (orthopaedic surgeon) who organised scans, advised physiotherapy and arranged for injections at the shoulder, and
(g) his condition has not improved.
[19] Page 15 of the insurer’s bundle.
In terms of Mr Fox’s current symptoms, he had pain around his right shoulder. The shooting pains had resolved but there was still some sensory change in the fingertips. The claimant denied previous right shoulder symptoms. Dr Powell took a history of the 2015 cervical spine injury and that all symptoms resolved two months later.
On examination, the range of motion was full but there were some symptoms in the upper limbs. The right shoulder was tender with some prominence of the long head of the biceps.
Dr Powell said there was no direct injury and that right shoulder difficulties developed later but were overtaken by pain and stiffness probably due to adhesive capsulitis suffered in the car accident. In a separate report he declined to assess WPI as he was of the view Mr Fox’s condition was not yet stable.
Dr Powell saw the claimant a year later on 18 November 2019.[20] Mr Fox was complaining of little movement at the right shoulder and a constant aching pain increasing through the day and severe at night. There was a good range of cervical movement (which he considered to be full or near full) but restricted motion in the shoulder. He discusses at length the diagnosis (adhesive capsulitis) in the right shoulder and says this could be due to minor trauma in conjunction with the claimant’s diabetes. Dr Powell was then of the view the claimant was diagnosed with a superior labral tear from anterior to posterior (SLAP tear or lesion) which he says is not due to the accident. Both conditions however were contributing to the claimant’s current shoulder presentation. Again, in a separate report Dr Powell declined to provide an impairment assessment as he remained of the view that the claimant’s condition had not stabilised.
[20] The report dated 29 November 2019 is at page 28 of the insurer’s bundle.
In a third report dated 20 November 2021[21] the claimant was still complaining of anterior shoulder pain (he called this nerve pain) and generalised shoulder girdle pain. Neck pain and left arm symptoms had settled.
[21] Page 45 of the insurer’s bundle (following an examination on 22 January 2021).
On examination, there was wasting of the deltoid musculature and significantly restricted range of motion.
Dr Powell assessed the UEI on the right at 20% and on the left at 2% and deducted 2% from the right on the basis it was a baselines measurement. This resulted in an 11% WPI and considered the scarring should be rated at 0%.
Claimant’s medico-legal reports
Dr Barold’s report to the claimant’s solicitors dated 6 December 2018[22] takes a history (page 4) of the claimant’s neck pains resolving after several days but his right shoulder symptoms persisted. He reported occasional tingling in the left and right fingertips, difficulty working overhead, shooting pain in the right biceps when he moves suddenly, difficulty operating the computer and when undertaking domestic chores.
[22] Page 253 of the claimant’s bundle.
Dr Barold records the claimant has a poor memory but with “no signs of embellishment”. On examination the claimant’s neck movement was symmetrical but moderately restricted. The left shoulder was normal and the range of motion in the right shoulder restricted. Dr Barold diagnosed a soft tissue injury to the right shoulder and aggravation of a previous neck condition. He suggests the claimant’s paraesthesia in the fingertips are no-dermatomal in distribution and therefore not related to any neck injury. He foreshadowed a worsening of shoulder symptoms due to “accelerated degenerative changes in the shoulder joint due to the labral damage”.
Both the claimant and the insurer rely on a report from Dr Barold dated 4 August 2020 which is addressed to the claimant’s solicitor.[23]
[23] Page 224 of the insurer’s bundle and page 243 of the claimant’s bundle.
Dr Barold noted the second arthroscopic surgery in May 2019, a continuation of “nerve pain” in the mid right biceps region. Dr Barold noted (at page 4) a “pain focus” but commented that there was restriction of motion when Mr Fox was being informally assessed while dressing and undressing. The claimant achieved 100 degrees of flexion on the right and 180 degrees on the left. Other right shoulder movements were restricted. He diagnosed soft tissue injury to the neck and right shoulder.
He provided a separate impairment assessment of 6% WPI for the right shoulder and 2% for the claimant’s scarring. Noting his figures for UEI total 15% this suggests on the basis of the conversion table 3 at page 20 of the AMA 4 Guides that he should have found a WPI of 9% and not 6% for the right shoulder which when added to the scarring impairment would suggest a total WPI of 11%.
Dr Bodel undertook an examination and produced a report for the claimant’s solicitors dated 25 March 2021.[24] He recorded residual pain and stiffness in the neck along with pain and stiffness in the right shoulder.
[24] Page 264 of the claimant’s bundle.
On examination he found guarding in the neck with tenderness and reduced neck movements in all directions with asymmetry on left rotation. He relates this to the car accident noting the claimant was doing well after his previous surgery. On examination of the shoulder, he noted very restricted motion with wasting in the shoulder girdle.
Dr Bodel diagnosed a soft tissue injury to the neck and rotator cuff injury to the right shoulder with scarring caused by the surgery.
His assessment of WPI was 5% for the neck, 10% for the right shoulder and 2% for the scarring. The neck impairment was due to dysmetria and he made no deduction for the previous spinal fusion. The total impairment therefore was 17%.
RE-EXAMINATION FINDINGS
Mr Fox attended a re-examination on 3 February 2023 with Medical Assessors Gibson and Chan.
Medical history
Mr Fox says he was diagnosed with diabetes in his early twenties and has been using insulin since. He said his diabetes is well controlled, particularly given he is using a Libre 2 device affixed to the under aspect of his left upper arm.
In relation to the left shoulder, he said there had been no injury to his left shoulder at all either before or since the accident.
History of the accident
Mr Fox said that in the accident of 23 October 2016 he was the seat-belted driver of a Jeep Cherokee with his partner in the front seat. They were struck from behind from another vehicle. Their car had not been forced into the car in front and was drivable after the accident.
He said he had been quite shocked at that time. He did however recall noticing a tingling sensation in his right hand involving the distal portion of all fingers and thumb.
He had a prior history of C5-C6 discectomy and fusion performed by Dr Darwish, neurosurgeon in 2014. He was therefore most concerned about his cervical spine, rather than any other injuries. He contacted Dr Darwish several days after the accident and some one to two weeks later, he had some form of scan. He said that Medical Assessor Home had told him there were no clinical records to indicate an assessment this early, Mr Fox disputed this. The examining panel members explained that they were unable to locate any earlier records in the material provided.
Nevertheless, Mr Fox advised that his neck was subsequently “fine” and Dr Darwish had considered his right shoulder was the problem.
Medical Assessors Gibson and Chan noted that Dr Darwish’s clinical records of
18 September 2017 had recorded complaints of neck and right shoulder pain, with pain extending into the right arm with paraesthesia in the fingers of the right hand. MRI imaging of the cervical spine of 5 September 2017 had shown C6-C7 foraminal stenosis but no obvious nerve compression. It was then that Dr Darwish had organised MRI scan right shoulder and cervical spine x-rays, the former showing subacromial bursitis and biceps tendinopathy and thus referral to the shoulder surgeon who diagnosed adhesive capsulitis.
There was a series of steroid injections to his right shoulder. Mr Fox subsequently had a fluoroscopic-guided hydro-dilatation of his right shoulder on 27 October 2017. On
4 December 2017, he underwent manipulation under anaesthesia with steroid injection, on 18 May 2018, right shoulder arthroscopy, release of frozen shoulder, and biceps tenotomy. There were then biceps tendon injections on 30 October 2018. On
3 May 2019, he underwent right shoulder arthroscopy, decompression, biceps tenolysis and tenodesis and supraspinatus repair.
Mr Fox said that following his final surgery in 2019, his right shoulder was “terrible” and the joint “just seized” and was “like a dead arm”. He added that, at that stage, he could “barely move” his shoulder.
The Panel noted that in his notes of 1 October 2019 Dr Nabavi had recorded forward flexion of 110 degrees, and on 5 May 2020, ongoing neuropathic pain with persistent symptoms in the right shoulder with no measurable improvement over nine months.
Current treatment
Mr Fox said that he had commenced Lyrica this week, two tablets at night prescribed by his general practitioner and this has helped to a marginal degree. He is also prescribed amitriptyline (Endep) 20 mg at night some months ago. He said he had been taking gabapentin 300 mg daily which also helped but the parameters required specialist’s prescription so his GP was unable to provide a script for this medication.
He said he had taken Panadeine Forte for a long time but this has been ceased by the GP and he has had no Panadeine Forte for almost three months.
Current complaints
Mr Fox said he suffered ongoing “nerve pain” which at times had a shooting character, particularly when he coughs or sneezes. The shooting pain spreads from the right shoulder region, down over the upper arm at the right biceps region, and into the right hand, although a clear distribution could not be explained over the forearm region. However, on clarification, the arm pain appeared to be more a deep-seated shooting discomfort, so was difficult to localise.
He said his right shoulder and arm pain is “terrible” during the day but even more severe at night. The right shoulder pain was diffuse involving the entire joint. Mr Fox said he cannot lie on his right side. He said the right shoulder pain makes him feel depressed. He said there was numbness of all the fingers and the thumb of his right hand and this was present “24 x 7” so “never goes away”.
There were no symptoms in the other hand nor in the other arm. However Mr Fox did volunteer that his left shoulder is “getting sore now” and he indicated pain over the left deltoid region. He said this has only been the case for the last few weeks. He added that his GP told him that he had been overusing his left upper limb, given the issues with his right. Mr Fox noted that he is having to sleep on his left-hand side due to the right shoulder pain.
In relation to the neck, there were no complaints made by the claimant of any symptoms or pain in his neck.
Activities and restrictions
Mr Fox said he needs to rest his right arm at the bottom end of the steering wheel when driving. He cannot wash his back in the shower. He has to use his left hand when wiping himself on the toilet. He can take his T-shirt on and off, but with difficulty. He can manipulate cutlery using his right hand.
He is self-employed in an air-conditioning cleaning business. However, he is unable to climb into air-conditioning ducts and has his employees do all the physical work, and in fact he has not done any hands-on work since about a month after the current motor accident.
Physical examination
Mr Fox who is now aged 58 had a normal range of neck movements, with no local tenderness, asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements of the upper arms were 31cm on the right and 30cm on the left (measured 10cm from the olecranon).
Mr Fox’s right forearm measured 28cm and the left 26cm (10cm from the olecranon).
There were no objective neurological findings, however, there was reduced sensation in a glove and stocking distribution over the entire right hand, but not elsewhere.
Shoulder movements were as follows:
Shoulder Movements
Active range of motion
RIGHT
Active range of motion
LEFT
Flexion
30 ° 40 ° 35 °
180 ° 180 ° 180 °
Extension
20 ° 30 ° 17 °
60 ° 55 ° 60 °
Internal Rotation
45 ° 19 ° 23 °
80 ° 90 ° 90 °
External Rotation
30 ° 30 ° 20 °
60 ° 30 ° 60 °
Abduction
45 ° 35 ° 42 °
180 ° 170 ° 180 °
Adduction
20 ° 20 ° 17 °
40 ° 50 ° 60 °
On examination over the right shoulder region there were three surgical scars as follows:
(a) in the region of the anterior axillary fold a 2.5 x 1mm scar;
(b) over the right deltoid region a 1cm x 1mm scar, and
(c) over the posterior shoulder region, a 1cm x 1mm scar.
All the scars were pale in colour, so not obvious at a distance. Mr Fox was able to localise the scars. There was no contour defect, no adherence and no suture marks were visible.
There was no modification of Mr Fox’s activities of daily living as a result of the scars and he said would rarely go shirtless in the sun, due to his fair skin.
There was no treatment required for the scars.
Mr Fox had given his history in a consistent fashion. However, shoulder movements were variable at assessment today, which when asked, he indicated was due to pain. He was observed to be shaking his arm to relieve discomfort in between measurements. He also demonstrated restriction of this shoulder when informally observed while dressing and undressing.
He was asked about the difference between the Panel’s findings today, and the measurements of the original assessor. He said that at the time of the original assessment, he had taken Panadeine Forte, whereas his lawyer had then advised that he should not take pain medication before a medical assessment.
Mr Fox co-operated with the medical assessment process and the medical members of the Panel accept that, generally, he was using his best effort on the day.
ASSESSMENT OF PERMANENT IMPAIRMENT
What injuries were sustained in the accident?
The Panel is satisfied that the claimant has sustained soft tissue injury to his cervical spine against a background of prior cervical spine surgery. The Panel is of the view this soft tissue injury has resolved and that any symptoms and impairment would be related to the underlying pre-accident condition of the claimant’s cervical spine.
Medical Assessor Home had found a rating of DRE I for the neck resulting in a 0% impairment. The original submissions from the parties did not challenge that assessment. The Panel asked for submissions as to whether the claimant accepted the finding but received no submissions.
Of the medico-legal examiners who has seen Mr Fox, all of them, other than Dr Bodel, found no impairment in the claimant’s neck. Dr Bodel found 5% impairment based on an assessment that the claimant satisfied DRE category II. This finding was made due to the presence of guarding and asymmetrical range of motion in one of the three planes of cervical spine movement (rotation).
The claimant did not present with guarding, spasm or any non-verifiable radicular complaints when re-examined by the medical members of the Panel, and all movements of the neck were equal and normal. There was therefore no dysmetria when the claimant was examined by Medical Assessors Gibson and Chan.
The claimant did not complain of any symptoms in the neck and therefore his injury has resolved leaving him with no measurable impairment.[25]
[25] A finding of DRE category I with a 0% impairment is inappropriate because that category requires there to be some symptoms such as pain, and there were none.
The insurer has conceded the claimant sustained a soft tissue strain to his right shoulder in the accident from which he developed adhesive capsulitis. While the claimant had degenerative changes in his shoulder and diabetes which predisposed him to the development of capsulitis, the accident was a material contribution to
Mr Fox’s current presentation.
The insurer’s concession is refreshing and appropriate based on the medical and other evidence in this matter and the Panel is satisfied that Mr Fox sustained a right shoulder soft tissue injury in the accident. This injury has been complicated by the onset of capsulitis requiring three procedures and multiple therapies but leaving him with ongoing restriction of right shoulder movements. The Panel accepts that the accident has materially contributed to his current symptomatology including his impairment. The impairment will be considered at length below.
How is shoulder impairment to be assessed?
The introductory clauses of the Guidelines require a finding to be made that an impairment is permanent.[26] The Panel notes that the claimant has had three procedures undertaken of his shoulder and multiple treatments. The Panel also notes from a consideration of the other medical examinations undertaken in the six and a half years since the accident that the claimant’s right (and to some extent the left) shoulder measurements have varied.
[26] Clauses 1.19 – 1.22.
The claimant’s current right shoulder is being treated with regular pain relief medication and modification of his work and domestic activities. There is no further surgical intervention proposed. In the clinical judgment of the medical members of the Panel the claimant’s injury has reached maximum medical improvement and the impairment is permanent.
While chapter 3 of the AMA 4 Guides provide several methods for assessing right upper limb impairment including peripheral nerve disorders or vascular disorders, these are not appropriate in the case of Mr Fox. The Panel is of the view that the claimant’s shoulder should be assessed by the “Abnormal Motion of Shoulder” method provided for at pages 41 - 45 of the AMA 4 Guides.
Clause 1.50 of the Guidelines permits the use of this method although acknowledges the limitations of it stating, “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) in accordance with cl 1.50.1, a goniometer should be used where clinically indicated. In this case, the Panel used a goniometer.
(b) clause 1.50.2 permits passive range of motion to be considered as part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements. The measurements obtained were of active range of motion.
(c) Page 42 of AMA4 says that measurements for each plane of movement must be rounded to the nearest 10 degrees.
(d) clause 1.50.3 says that if the results of a measurement are unreliable, active range of motion should be measured with at least three consistent repetitions. The Panel has recorded all three measurements for each plane of motion and notes that only one movement was consistent (left shoulder flexion).
(e) under cl 1.50.4, if there is inconsistency in range of motion, then it “should not” be used as a valid parameter of impairment evaluation.[27]
(f) if, because of the inconsistency, the range of motion measurements “cannot be used” to assess impairment, cl 1.50.5 says that “the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present”.
[27] There is then a cross reference to cl 1.40.
The Panel also notes that cl 1.40 provides guidance for inconsistency in all assessments and not just shoulder assessments. The insurer refers to inconsistency in the claimant’s range of motion over the years. The Panel has included in the appendix a comparison of the claimant’s measurements since the date of the accident. The Panel notes the decision of the Court in Flanagan v Allianz Australia Insurance Ltd[28] where at [66] – [68] a distinction was made between inconsistency within the examination or assessment and differences between other examinations or assessments and said, “I am not prepared to infer that a difference between the clinical assessments performed by Dr Davis… on the one hand and the Review Panel on the other … is an inconsistency so as to engage the requirements of cl. 6.41”.
[28] [2022] NSWSC 1374.
The claimant said his range of motion varied from the measurements obtained by Medical Assessor Home in May 2022 because he had taken Panadeine Forte before he went to Medical Assessor Home but did not do so, on the advice of his lawyer, before he was examined by the medical members of the Panel.
The claimant appeared genuine, and the Panel accepts that the degree of restriction in right shoulder movement did vary in accordance with the medication he was taking and the level of pain he was experiencing at the time of the examination.
Because the measurements obtained by the Panel during their examination were inconsistent, despite there being a reasonable explanation in reference to pain complaint, the measurements should not or cannot be used for impairment assessment in accordance with cls 1.50.4 and 1.50.5.
The Guidelines provide no further help as to how the shoulder impairment should be assessed in these circumstances, apart from advising the assessor to use “discretion in considering what weight to give other available evidence to determine if an impairment is present” (cl 1.50.5) or “the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements … are plausible and relate to the impairment being evaluated” (cl 1.40).
How should Mr Fox’s shoulder impairment be assessed?
The Panel considered the history of the accident and the clinical history after the accident, including multiple procedures and what appeared to be ongoing and severe symptoms in the claimant’s right shoulder. The Panel also noted there was imaging evidence of right shoulder pathology.
The Panel accepts that the claimant has an ongoing impairment in his right shoulder resulting from the injury caused by the accident. The calculation of that impairment due to the inconsistent measurements obtained in the examination provides some challenges.
The Panel notes that all medical examiners who have assessed his shoulder motion since his last surgical procedure, including the insurer’s medico-legal expert Dr Powell, have found a WPI of between 9% and 12%.
The Panel has further considered the Guidelines and notes there are no relevant upper limb diagnostic related estimates or other analogous conditions that it could use to assess impairment. Therefore, the Panel is of the view it must exercise its clinical skills (in the case of the medical members of the Panel), judgment in “assessing whether or not the results of measurements or tests are plausible” as required by cl 1.40 and discretion as required by cl 1.50.5.
While the Guidelines provide that inconsistent measurements should not be accepted, the Panel has undertaken an exercise using the measurements that were obtained and applying the following principles:
(a) all measurements were rounded up or down to the nearest 10 degrees;
(b) in the case of numbers ending in 5, they were rounded up;
(c) the best (highest) range of motion measurement was used for the right shoulder (which would benefit the insurer), and
(d) the worst (lowest) range of motion measured was used for the left shoulder (which would also benefit the insurer).
Shoulder
Movements
Normal
Active range of motion
RIGHT
Active range of motion
LEFT
Flexion
180
30 ° 40 ° 40 °
use 40 = 10% UEI
180 ° 180 ° 180 °
use 180 = 0% UEI
Extension
50
20 ° 30 ° 20 °
use 30 = 1% UEI
60 ° 60 ° 60 °
use 60 = 0% UEI
Abduction
180
50 ° 40 ° 40 °
use 50 = 6% UEI
180 ° 170 ° 180 °
use 170 = 0% UEI
Adduction
50
20 ° 20 ° 20 °
use 20 = 1% UEI
40 ° 50 ° 60 °
use 40 = 0% UEI
Internal Rotation
90
50 ° 20 ° 20 °
use 50 = 2% UEI
80 ° 90 ° 90 °
use 80 = 0% UEI
External Rotation
90
30 ° 30 ° 20 °
use 30 = 1% UEI
60 ° 30 ° 60 °
use 30 = 1% UEI
Utilising that method produced a 21% UEI for the right shoulder which converts to a WPI of 13%. If, as the insurer submits, this should be reduced for the contralateral uninjured left shoulder (1%) in accordance with cl 1.51 this suggests a total UEI of 20% and a WPI of 12%.
The Panel then reviewed the evidence in the five assessments undertaken since the claimant’s last surgical procedure which produced UEI and WPI figures of 15% / 9% (Dr Barold), 17% / 10% (Dr Bodel), 19% / 11% (Medical Assessor Home) and 20% / 12% (Dr Powell in both 2019 and 2021) corrected for error and unadjusted.
When compared to those assessments, the Panel’s likely impairment of 12% or 13% is not too dissimilar and therefore a plausible finding for Mr Fox who states he had not taken any medication prior to the assessment. In the Medical Assessors’ view, the action of the Panadeine Forte (a strong pain killer) in reducing the level of his pain symptoms was a reasonable explanation to account for the variability between Medical Assessor Home’s assessment. The absence of any pain killers at all before the Panel’s examination accounts for the inconsistency within the examination.
The Panel notes that Medical Assessor Home on 17 May 2022 had found, in a medicated Mr Fox, 18% UEI of the right shoulder which should be corrected for error to 19%. He had made a deduction of 4% UEI due to the restriction of left shoulder movements and in accordance with cl 1.51.
Clause 1.51 of the Guidelines provides for situations where the opposite uninjured joint has less than average mobility. The measurements for this joint can then be used as a baseline and its UEI is deducted from the injured joint’s UEI. This is because the presumption is that, but for the accident, the two joints would have the same range of impaired motion.
At the Panel’s examination, there was some minor inconsistency of measurements in the left shoulder, but normal or near normal range of left shoulder movements other than one measurement of external rotation which the Panel considered was likely not a best effort and therefore not reflective of any impairment. Therefore, it is the Panel’s view that no deduction is appropriate.
The Panel has considered all the available evidence, including the imaging and the history of multiple surgeries and using their relevant clinical expertise and judgment, the medical members of the Panel are of the view that a 13% WPI is appropriate in all the circumstances.
What is the impairment of the claimant’s scarring?
The AMA 4 Guides provide in chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0 – 9% and class 5 which attracts a WPI of between 85 and 95%.
It is the Panel’s view that the claimant’s scarring falls within class 1 because:
(a) there are few signs and no symptoms;
(b) there is no limitation of activities, and
(c) no treatment of intermittent treatment is required.
Because class 1 contains a relatively wide range of percentage impairments, the Guidelines provides at table 2, a Table for the Evaluation of Minor Skin Impairment (the TEMSKI) which is a method of determining minor skin impairments.
The impairment due to the scarring was assessed with reference to the TEMSKI scale for the evaluation of minor skin impairment.
The Panel’s assessment of each of the 10 criteria in the TEMSKI scale is as follows:
(a) Mr Fox is conscious of the scars (1%);
(b) there is minor colour contrast with the surrounding skin (1%);
(c) the claimant is able to locate the scars (1%);
(d) there are no trophic changes (0%);
(e) the staple and suture marks are barely visible (0%);
(f) the scars are not visible with usual clothing and are covered by the claimant’s shirts (0%);
(g) there is no contour defect (0%);
(h) the scars have no effect on any activity of daily living (0%);
(i) no ongoing treatment for the scars is required (0%), and
(j) there is no adherence of the scars to any underlying structure (0%).
The most appropriate assessment, for the skin impairment as a whole applying the "best fit" principle, is 0% WPI.
CONCLUSION
Taking into account the difficulties in calculating the right shoulder WPI, noting the inconsistent measurements obtained in the examination, the Panel is satisfied that the claimant has a WPI of greater than 10%.
On the basis of the Panel’s relevant clinical skills and judgment, the Panel has for the reasons above found the claimant has a 13% WPI in respect of his right shoulder injury and a 0% skin impairment.
It therefore follows that the certificate of Medical Assessor Home must be revoked, and a fresh certificate issued.
APPENDIX
Right shoulder measurements
| Flexion | Extension | Adduction | Abduction | Internal rotation | External rotation | UEI / WPI | |
| First procedure 4 September 2017 – manipulation of the right shoulder | |||||||
| Second procedure 18 May 2018 – right shoulder arthroscopy | |||||||
| Dr Powell Aug 2018 | 90 | 10 | 10 | 80 | 40 | 10 | 19% 11% |
| Dr Barold Dec 2018 | 150 | 50 | 60 | 130 | 40 | 90 | 7% 4% |
| Third procedure – 3 May 2019 – open retrieval of the biceps tendon and tenodesis | |||||||
| Dr Powell Nov 2019 | 90 | 20 | 10 | 70 | 30 | 10 | 20% 12% |
| Dr Barold Aug 2020 | 100 | 40 | 50 | 80 | 30 | 80 | 15% 9% |
| Dr Powell Apr 2021 | 80 | 10 | 0 | 80 | 40 | 20 | 20% 12% |
| Dr Bodel May 2021 | 90 | 30 | 10 | 70 | 40 | 40 | 17% 10% |
| Medical Assessor Home May 2022 | 80 | 30 | 10 | 70 | 20 | 20 | 19% 11% |
Left shoulder measurements
| Flexion | Extension | Adduction | Abduction | Internal rotation | External rotation | |
| Dr Powell Aug 2018 | 180 | 40 | 40 | 180 | 70 | 40 |
| Dr Barold Dec 2018 | 180 | 60 | 70 | 180 | 90 | 90 |
| Dr Powell Nov 2019 | 180 | 50 | 50 | 180 | 80 | 70 |
| Dr Barold Aug 2020 | 180 | 60 | 60 | 180 | 40 | 90 |
| Dr Powell Apr 2021 | 180 | 40 | 40 | 170 | 80 | 40 |
| Dr Bodel May 2021 | 180 | 50 | 50 | 180 | 90 | 90 |
| Medical Assessor Home May 2022 | 150 | 60 | 50 | 160 | 70 | 90 |
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