Gaponenko v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPICMP 696

DETERMINATION OF REVIEW PANEL

CITATION:

Gaponenko v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 696

CLAIMANT:

Arturas Gaponenko

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Thomas Rosenthal

DATE OF DECISION:

4 October 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 12 May 2022; Medical Assessor determined claimant’s permanent impairment at 7%; the Medical Review Panel conducted its own examination and confirmed a 7% whole person impairment; Held – Medical Assessment Certificate affirmed.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.    The Panel affirms the certificate of Medical Assessor Sophia Lahz, dated 14 February 2024, certifying a whole person impairment of 7%.

STATEMENT OF REASONS

INTRODUCTION

1. On 12 May 2022, Arturas Gaponenko (Mr Gaponenko), the claimant, was injured in a motor vehicle accident (the accident).

2. Mr Gaponenko has brought a claim for common law damages for the injuries he sustained under the Motor Accident Injuries Act 2017 (the MAI Act).

3. Insurance Australia Limited ABN 11 000 016 722 trading as NRMA Insurance (NRMA) is the relevant insurer.

4. A medical dispute about the degree of Mr Gaponenko’s whole person impairment (WPI) and treatment has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.

5. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.

6. The dispute was referred to the Personal Injury Commission (Commission) and assigned to Medical Assessor Sophia Lahz for assessment.

7. On 14 February 2024, Medical Assessor Lahz issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

1. Mr Gaponenko sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).

2. A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).

3. The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.

4. The Review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

6. On 17 July 2924, the Panel informed the parties that it considered a re-examination of
   Mr Gaponenko was required. Arrangements were made for Mr Gaponenko to be re-examined by Medical Assessor Dixon and Medical Assessor Rosenthal on
   11 September 2024.

LEGISLATIVE FRAMEWORK

General provisions

14.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

1. Mr Gaponenko’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.

2. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.

3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.

4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.

5. Clause 6.6 of the Guidelines notes:

   “6.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   (a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   (b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.”

6. Clause 6.7 of the Guidelines states:

   “There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

7. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.

8. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.

9. Clause 6.32 of the Guidelines states:

   “The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”

10. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Lahz examined Mr Gaponenko on 13 February 2024 and issued a certificate under s 7.23 of the MAI Act.

2. Medical Assessor Lahz was referred the following injuries for assessment:

   (a)    cervical spine musculoskeletal injury with radicular symptoms, and

   (b)    lumbar spine musculoskeletal injury with radicular symptoms

3. Medical Assessor Lahz took a history of the accident [9]:

   “Mr Gaponenko confirmed his involvement in the subject accident on 12/5/22. At the time, he was the restrained driver of a BMW sedan when another driver allegedly turned across his path, causing considerable front end damage to his vehicle, which was written off. He said the other driver was involved with two impacts, the second being with a bus. He was very shocked immediately afterwards although he does not remember any part of his body striking the interior of the car. He has full recollections of all events. He said there was smoke inside the car and bystanders urged him to exit the vehicle which he was able to do unaided. He reported walking around the scene and then having to sit down due to shock. There was no immediate pain, although shortly thereafter he developed neck and low back pain. Fire, ambulance and paramedics attended although Mr Gaponenko declined transfer to hospital. His wife came to collect him from the scene and he went straight home.”

4. Medical Assessor Lahz took a history of the symptoms and treatment following the accident at [10] and noted ‘current symptoms’ at [12].

5. She conducted a clinical examination at [14] – [18]:

   “14. General presentation

   Mr Gaponenko moved very stiffly, slowly and carefully, with minimal deviation of his head/neck. His demeanour was very sombre and he very rarely smiled. There was moderate central adiposity and he was of relatively short stature with weight 81 kg and height 168 cm. He was pleasant but generally pain and symptom-focused. At the commencement of the examination, I asked Mr Gaponenko to do the best he could with all requested movements, or else due to difficulties with interpretation, I would be unable to use my clinical findings to determine WPI. He indicated that he understood these instructions. I observed frequent grimacing and wincing whilst all three regions of the spine were examined.

   15. Cervical spine (cervicothoracic)

   There was normal lordotic neck posture. There were tenderness and muscle guarding at the left trapezius along with tenderness over the mid and lower posterior cervical spine. There was tenderness too, albeit to lesser degree at the left shoulder convexity. Neck movements were slowly performed with ¼ normal range of flexion and extension, ¼ normal range of left lateral flexion and leftward rotation and 1/3 normal range right lateral flexion and rightward rotation. There was dysmetria present with right-sided movements exceeding left-sided movements. There were non-verifiable left upper limb radicular symptoms in a C8 distribution (ring and little fingers and ulnar forearm).

   Upper limb neural tension tests were negative. He complained of left anterior upper chest wall pain but no upper limb pain on left-sided ULTT. There was no measurable wasting of the arms 34 cm (10 cm above the elbow crease) nor forearms 29 cm (5 cm below the elbow crease).

   Upper limb reflexes were all present and symmetrical and Hoffman’s test negative bilaterally.

   There was no wasting of the small muscles of either hand. There was subjective reduction of sensation at the left lateral forearm excluding the thumb (partial C6 pattern) and over the little finger and ulnar aspect of the forearm (C8 distribution). There was normal (full grade 5/5) right upper limb strength.

   At the left upper limb, there was generalised ‘giving way’ weakness due to shoulder/ neck pain.

   The weakness was not in the pattern of a specific nerve root or else myotome. There were not the two clinical findings present (as required by the PIG paragraph 6.138 page 108) to confirm a diagnosis of left upper limb radiculopathy.

   16. Thoracic spine (thoracolumbar)

   At the thoracic spine, there were mostly normal clinical findings. There was uniform reduction of flexion and extension (1/4 normal range) and rotation (1/3 normal range to either side.) There was no dysmetria present, and there was no focal spinal tenderness. There was no muscle spasm or else guarding and there were no non-verifiable radicular complaints. There were no clinical signs of radiculopathy.

   17. Lumbar spine (lumbosacral)

   There was mild flattening of the lumbar spine with generalised poorly localised tenderness. He indicated a large area of discomfort at the right of the lower lumbar spine. There was global limitation of lower back movements i.e. flexion, extension, lateral flexion to either side ¼ normal range due to fear avoidance of pain. There was no dysmetria. There was no muscle spasm or guarding present. There are no ongoing non-verifiable radicular complaints at the right leg (nor left leg). The area of reported sensory change at the right lateral thigh is not within the distribution of a single nerve root and thus not a non-verifiable radicular symptom. Lower limb reflexes were normal and symmetrical. There was sensory loss bilaterally (to pinprick and light touch) affecting the lateral and medial calves but sparing the feet. The latter symptoms are again not in the distribution of a specific nerve root and thus not of non-verifiable radicular type.

   Strength testing of the lower limbs was confounded by pain complaint at the lower back. There was bilateral generalised lower limb giving way weakness of the legs (due to pain), not in the pattern of a specific myotome/nerve root.

   In supine, there was no measurable wasting of the thigh 10 cm above the superior patellar border (45 cm) and no measurable wasting of the calves at maximal mid girth (36 cm). SLR was 45 degrees on the right with complaint of back pain and just 20 degrees on the left, again with complaint of back but no leg pain. However, he was able to sit on the side of the couch with each leg fully extended. Lower limb neural tension tests were thus bilaterally negative. There were not the two necessary clinical findings present required by the PIG to confirm the presence of lower limb radiculopathy (paragraph 6.138 page 108).

   18. Upper extremity

   There were frequent pain behaviours with wincing and grimacing during the clinical examination. Active range of shoulder movements is recorded in the following tables. Three repetitions of active movement were checked and measured with a goniometer although the range of motion at the left shoulder reliably decreased with each repetition (in association with increasing verbal pain complaint).

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180 0% UEI	110° 100, 90
Extension	60° 0% UEI	30° 30, 20
Adduction	60° 0% UEI	50° 0% UEI
Abduction	180° 0% UEI	110° 90, 80
Internal Rotation	80° 0% UEI	80° 0% UEI
External Rotation	70° 0% UEI	70° 0% UEI

Impingement tests were negative bilaterally. Whilst moving the left shoulder, the main site of pain causing restriction of motion was at the left upper anterior chest wall and to a lesser extent the left trapezius. He reached the left buttock with his hand (compared with to the thoracolumbar junction with the right hand). He could place his right hand behind his head although he was unable to demonstrate this with the left hand. On specific enquiry, he said the left shoulder movements (particularly elevation) were getting worse due to repetition of motion associated with worsening pain levels.

Lower Extremity

There was frequent grimacing and wincing during the assessment of the lower extremity.

He was reluctant to move the left and right hips actively due to fear of inducing worse low back pain. As with the shoulder, there was variable range of hip motion associated with complaints of low back pain. However, with repetition/encouragement he eventually demonstrated his best effort with nearly full bilateral active range of hip motion found not attracting any WPI according to the specific tables in AMA4 (Table 40 page 78). His general function was also compatible with a virtually full range of hip motion i.e. normal gait, ability to move from sitting to standing and then to climb up onto and down from the examination couch. Trendelenburg test was negative bilaterally and there was no trendelenburg gait observed.

Hip Movements	Best Active ROM Measured RIGHT	Best Active ROM Measured LEFT
Flexion	110°	100°
Extension	0°	0°
Adduction	20°	20°
Abduction	30°	30°
Internal Rotation	30°	30°
External Rotation	40°	40°

There was a full bilateral active range of motion observed at the knees (0-140 degrees) and ankles/hind feet with 20 degrees of dorsiflexion, 40 degrees of plantarflexion, 40 degrees of inversion and 20 degrees of eversion. There were no clinical abnormalities at any of the abovementioned joints to indicate the presence of WPI.”

1. At [22] Medical Assessor Lahz set out ‘Diagnosis and reasons and Causation and reasons’:

   “The POW hospital and GP (Menai Practice) records support the presence of cervical spine and lumbar spine soft tissue injuries due to the subject motor accident given he reports symptoms in both locations immediately after the motor accident with such symptoms recorded in the medical notes. There have never been any objective clinical findings made at either the upper or else lower limbs to confirm the presence of either cervical or else lumbosacral radiculopathy (as required by paragraph 6.38 page 108 of the PIG). My clinical examination did indicate guarding at the left trapezius.”

2. Medical Assessor Lahz concluded that the following injuries were caused by the accident:

   (a)    cervical spine soft tissue injury with symptom referral to the left shoulder girdle/upper limb, and

   (b)    lumbar spine soft tissue injury with symptom referral to the right lower limb.

3. She determined that the degree of permanent impairment caused by the accident was 7%.

SUBMISSIONS

Mr Gaponenko’s submissions in support for the referral of a medical assessment to the Review Panel, dated 25 March 2024

1. The Panel summarises Mr Gaponenko’s submissions by reference to paragraph number:

   Part A: Cervical spine impairment

   [9] The Medical Assessor’s reasons for the DRE II category finding are set out on pages 18 and 19 of the Certificate and are set out below:

   “The criteria met for DRE II of the cervicothoracic spine due to the presence of dysmetria with R-L range of motion along with presence of guarding of the left trapezius. In addition, he complains of ongoing left sided non-verifiable radicular symptoms in a C8 distribution (page 104 AMA 4, Table 6.7, page 103 PIG). There was as noted above, not the necessary two clinical findings present to confirm the presence of cervical radiculopathy DRE III. Reflexes were symmetrical, there was no muscle atrophy, there was no myotomal loss of strength and upper limb neural tension tests were negative bilaterally. Therefore, there is 5% WPI for the cervical spine for (DRE II) categorisation.”

   [10] In setting out the reasons for the DRE II category finding, in particular the absence of two clinical findings to confirm the presence of cervical radiculopathy to cause the impairment to fall within DRE III, it was submitted that the Medical Assessor failed to consider whether there was muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution and/or reproduceable sensory loss that is anatomically localised to an appropriate spinal nerve root distribution, both being clinical findings that are listed in clause 1.138 of the Permanent Impairment Guidelines and are criteria that can lead to a finding of radiculopathy.

   [11] The Medical Assessor in the paragraph set out above, did not exclude findings of muscle weakness or reproduceable sensory loss. It was submitted that the absence of the Medical Assessor mentioning such factors in the above paragraph was consistent with the Medical Assessor not turning her mind to these factors when considering whether radiculopathy should be found.

   [12] Had the Medical Assessor turned her mind to whether there was muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution or if reproduceable sensory loss, then the impairment to the cervical spine would have been classed in DRE Category III.

   [13] Indeed, on examination the Medical Assessor found that there was subjective reduction of sensation at the left lateral forearm, excluding the thumb (partial C6 pattern) and over the little finger and ulna aspect of the forearm (C8 distribution). It was submitted this was a clear finding of sensory loss of the type defined in clause 1.138.5 of the Guidelines and is one of the signs that can lead to a finding of radiculopathy pursuant to clause 1.138 of the Guidelines.

   [14] It was submitted that a second sign of radiculopathy for the purposes of satisfying clause 1.138 of the Guidelines involving muscle weakness should have also been found. On page 19 of the Certificate the Medical Assessor stated:

   “Thus accepting the MRI finding of C7 root compression is symptomatic (without objective signs of radiculopathy) and that left trapezial guarding (noted on examination) has contributed to reduced left shoulder movement …”

   [15] The Medical Assessor found left trapezial guarding which she attributes to C7 root compression as identified in the MRI scan. The definitions of clinical findings in Table 8 of the Guidelines define muscle guarding as a contraction of muscle to minimise motion or agitation of the injured or diseased tissue. It was submitted that the left trapezial guarding noted on examination by the Medical Assessor constituted muscle weakness stemming from the cervical spine injury.

   [16] Accordingly, Mr Gaponenko submitted the Medical Assessor has made an error by not finding a DRE category III cervical spine injury in assessing the whole person impairment of the cervical spine at 15%, considering the Medical Assessor’s examinations did find two clinical signs that require a finding of radiculopathy, namely and as set out above, sensory loss and muscle weakness

   Part B: lumbar spine - impairment

   [18] The Medical Assessor stated on page 20 of the Certificate:

   “For the lumbar spine, the clinical signs and symptoms are consistent with DRE I or else 0% WPI. There were no findings such as dysmetria, muscle guarding, non-verifiable radicular complaints, dermatomal sensory loss, positive lower limb tension signs or focal muscle weakness to support the presence of a higher DRE category than DRE I of the lumbosacral spine or else 0% WPI (Table 6.7, page 103 PIG, page 102 AMA 4).”

   [19] Page 102 AMA 4 provides that if a patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurological impairment, no significant loss of structural integrity on lateral flexion and extension, no indication of impairment related to the injury or illness, that the injury falls within DRE Category I and attracts a 0% whole person impairment.

   [20] However, if the clinical history and examination findings are compatible with a specific injury or illness, the findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, non-uniform loss of range of motion (dysmetria), or non-verifiable radicular complaints and there is no objective sign of radiculopathy and no loss of structural integrity, then the injury is a DRE Category II injury and attracts a 5% whole person impairment.

   [21] Mr Gaponenko submits the Medical Assessor erred by not finding a DRE Category II injury in respect to the lumbar spine and assessing the Claimant’s whole person impairment of the lumbar spine at 5%.

   [22] In respect to the lumbar spine, on examination, the Medical Assessor found that Mr Gaponenko had sensory change at the right lateral thigh and that there was sensory loss bilaterally (to pinprick and light touch) affecting the lateral and medial calves but sparing the feet.

   [23] The Medical Assessor also found there was bilateral generalised lower limb “giving way” weakness of the legs (due to pain) and with the CLR test it found 45 degrees on the right with complaint of back pain and just 20 degrees on the left.

   [24] Mr Gaponenko accepted that the Medical Assessor found that the sensory loss findings were concluded by the Medical Assessor as not in the distribution of a specific nerve root. However, it was submitted they are the type of symptoms when combined with the result of the MRI scan of the lumbar spine which found mild bulges at multiple lumbar levels with annular fissuring at L5/S1 are the type of symptoms that move the impairment from Category I to Category II, in that there is more than simply complaints of symptoms as required for an injury to fall in Category I. There was minor impairment and documented neurological impairment considering the fissuring identified in the MRI scan, and the mild disc bulges shown in the scan combined with the complaints of sensory loss during the Medical Assessor’s examination of Mr Gaponenko and the Medical Assessor’s own finding that the sensory loss bilaterally (the pinprick and light touch) affecting the lateral and medial curves.

   [25] The findings by the Medical Assessor that the sensory loss type symptoms not in the distribution of the specific nerve root did not mean that the Medical Assessor should not have been satisfied that the impairment should be classed in DRE Category II, considering DRE Category I requires there to be no documentable neurological impairment which could not be found here in light of the above matters, and particularly in light of there being sensory loss bilaterally being found on examination by the Medical Assessor.

   [26] Additionally, Mr Gaponenko noted the SLR test reveals 40 degrees on the right with complaint of back and leg pain and just 20 degrees on the left with no complaint of leg pain. The lack of complaint of left leg pain and the results of the range of motion testing of the left leg was performed being substantially less, was consistent with a positive result as there was no left leg pain and a difference in range of motion. This was another factor that should have led the Medical Assessor finding a DRE 2 impairment and assessing the lumbar spine at 5%.

   [27] Accordingly, Mr Gaponenko submitted the Medical Assessor erred in failing to find DRE Category II lumbosacral spine impairment and 5% whole person impairment of the lumbar spine.

NRMA’s submissions in reply to the application for review of the certificate of Medical Assessor Lahz, dated 12 April 2024

1. The Panel summarises NRMA’s submissions by reference to paragraph number:

   [4] NRMA submitted that Medical Assessor Lahz had conducted her own assessment of WPI in respect of both Mr Gaponenko’s cervical and lumbar spine based on her findings on clinical examination of Mr Gaponenko on the day of the assessment.

   [6] Medical Assessor Lahz found the criteria met DRE2 due to the presence of dysmetria with R>L range of motion along with presence of guarding of the left trapezius. In addition, he complained of ongoing left-sided non-verifiable radicular symptoms in a C8 distribution. (page 104 AMA4, Table 6.7, page 103 PIG).

   [7] Medical Assessor Lahz noted there was not the necessary two clinical findings present to confirm the presence of cervical radiculopathy DRE3. Reflexes were symmetrical, there was no muscle atrophy, there was no myotomal loss of strength and upper limb neural tension tests were negative bilaterally

   [8} Medical Assessor Lahz made a correct assessment of the WPI in respect of Mr Gaponenko’s cervical spine and provided a clear path of reasoning for reaching her conclusion.

   [10] Based on these findings Medical Assessor Lahz found the criteria met DRE1 due to no findings such as dysmetria, muscle guarding, non-verifiable radicular complaints, dermatomal sensory loss, positive lower limb tension signs or focal (myotomal) muscle weakness.

   [11] Medical Assessor Lahz made a correct assessment of the WPI in respect of Mr Gaponenko’s lumbar spine and provided a clear path of reasoning for reaching her conclusion.

   [12] Medical Assessor Lahz’s findings on examination were similar to the findings of Dr Machart who examined Mr Gaponenko in June 2023. In respect of the lumbar spine there was no identifiable nerve root compression, and he assessed DRE category I, 0% WPI. Further, in respect of the cervical spine, there was non-verifiable radicular symptoms and he assessed DRE II, 5% WPI.

RELEVANT DOCUMENTS BEFORE THE PANEL

The Application for Personal Injury Benefits dated 16 May 2022

1. The Application for Personal Injury Benefits form listed the mental injuries as a great state of shock. The physical injuries were to the lower back, right side of neck and across the upper chest. He had had numbness in his right arm and leg and daily headaches since the accident.

Certificate of Capacity dated 13 May 2022

1. The certificate was noted relating to the 2022 motor accident. There had been soft tissue injuries of the back, neck and chest. He was certified unfit for work until 20 May 2022.

The Certificate of Capacity/Certificate of Fitness by Dr Rakesh Bahl dated 20 May 2022

1. The certificate stated that he continued to experience symptoms and dizziness and stiffness, arising from the accident.

Certificate of capacity dated 31 March 2023

1. This certificate referred to 10-15 minutes sitting tolerance, driving for up to 20-30 minutes, maximum lifting of up to 1-2kg, walking for 15 minutes and inability to carry more than 1kg (contradictory). He was having physiotherapy, hydrotherapy and psychology and medications.

The discharge referral from Prince of Wales Hospital dated 13 May 2022

1. The discharge referral stated Mr Gaponenko was involved in a motor accident one day previously when he was the driver of a vehicle. Another vehicle turned in front of him. He hit the vehicle at about 50kmph. The airbags were deployed. He was wearing a seatbelt. He was able to self-extract from the vehicle. He noted right sided numbness that resolved. Today he had right sided lower back pain which was worse walking up stairs. He has mild right sided neck pain. He was tender over T3/4 and tender over the right side of the lower back. The diagnosis was of muscular pain. It was recommended he use paracetamol and ibuprofen as required.

The clinical notes from Menai Medical Centre

1. The entry dated 22 June 2022 states he presented for a Certificate of Capacity. It stated that Dr Soo had suggested hydrotherapy. There was discussion about release of superannuation on compassionate grounds. He was undergoing therapy for post-traumatic stress disorder. He was commenced on Lyrica 25 mg twice daily and to continue walking on the beach. Hydrotherapy would be added to his treatment plan.

2. The entry dated 6 July 2022 stated he was presenting regarding a workers compensation claim. The dose of Lyrica was increased to 75 mg twice daily.

3. The entry dated 5 August 2022 stated he has lost the family business, had difficulty paying the mortgage, had thoughts of self-harm but denied intent.

4. The entry dated 16 August 2022 stated he has ceased taking Mobic but was taking Nurofen. The hydrotherapy and physiotherapy were increased to twice each week and the Lyrica was increased to 150 mg twice daily.

5. The entry dated 7 October 2022 stated this was a case conference. He was currently having physiotherapy and hydrotherapy twice each week and consulting Liz Angel every two weeks. It listed his physical limitations and recommended continuing the trial of Cymbalta and trialling returning to work in three months on light duties.

6. The entry dated 4 November 2022 stated he was taking Cymbalta 30 mg, which was effective and he was happy to increase it to 60 mg daily.

7. The entry dated 30 November 2022 stated he had difficulty falling asleep and was ruminating. He was prescribed melatonin 2 mg, one tablet in the evening.

8. The entry dated 31 March 2023 stated that he was prescribed Lyrica 150 mg twice daily, Lyrica 75 mg daily, melatonin 2 mg at night and Mobic 15 mg daily.

9. The entry dated 3 May 2023 included a prescription for Cymbalta 60 mg, one daily.

10. The entry dated 17 June 2022. It stated he had a motor accident on 12 June 2022. He was hit in the front from another car. His vehicle was written off. The airbags activated. It states he was trapped in the car and thought there was a fire. He was scared when others are driving. He wakes early in the morning. He had some suicidal ideas but no intent. He had chronic lumbar back pain on the right side which is aching. He had limited movement of the lumbar and cervical spine.

MRI cervical and lumbar spine

1. The MRI report of 16 June 2022:

   “Clinical history:

   Motor vehicle accident 12/05/2022. Severe lumbar pain and grade 2 whiplash injury cervical spine.

   Findings:

   Cervical spine:

   Cervical spinal alignment is normal. lntervertebral disc heights are maintained. There is no fracture or focal bone lesion.

   There is mild facet arthropathy at C4/CS on the right. Visualised posterior fossa structures are normal. The craniocervical junction is normal. Atlantoaxial articulations are normal. The spinal cord has normal signal and morphology.

   The posterior longitudinal ligament and ligamentum flavum are intact. There is no facet joint subluxation or effusion.

   There is no bone oedema. There is no prevertebral or posterior paraspinal space oedema.

   At C2/C3, there is no disc herniation, canal stenosis or foraminal narrowing.

   At C3/C4, there is a mild broad-based central disc/osteophyte complex. There is no canal stenosis or right foraminal narrowing. There is mild left foraminal narrowing.

   At C4/CS, there is no disc herniation, canal stenosis or foraminal narrowing.

   At CS/C6, there is a mild central disc bulge. There is no canal stenosis or foraminal narrowing.

   At C6/C7, there is a mild focal left foraminal disc protrusion. There is no canal stenosis or right foraminal narrowing.

   There is moderate left foraminal narrowing.

   At C7 /Tl, there is no disc herniation, canal stenosis or foraminal narrowing.

   Paraspinal soft tissues appear normal.

   Lumbosacral spine:

   Lumbosacral spinal alignment is normal. There is loss of disc height at L1/L2. There is no fracture or focal bone lesion.

   There is no bone oedema. There is no posterior paraspinal space oedema. There is no facet joint subluxation or effusion.

   The conus and cauda equina appear normal.

   At L1/L2, there is a mild concentric disc bulge. There is no canal stenosis or foraminal narrowing.

   At L2/L3, there is no disc herniation , canal stenosis or foraminal narrowing.

   At L3/L4, there is a mild concentric disc bulge. There is no canal stenosis or foraminal narrowing.

   At L4/LS, there is a mild concentric disc bulge. There is no canal stenosis or foraminal narrowing.

   At LS/S1, there is a mild broad-based central disc bulge with central annular fissure. There is no canal stenosis or foraminal narrowing . There is no subarticular recess narrowing.

   Paraspinal soft tissues appear normal.

   Comment:

   Mild disc herniation at C6/C7 with associated moderate left foraminal narrowing and potential C7 nerve root impingement.

   Mild disc bulges at multiple lumbar levels. Annular fissuring at LS/S1. No lumbar neural impingement.”

Report of Dr Frank Machart, orthopaedic surgeon

1. Dr Machart took the following history:

   “MVA 12/5/22. Mr Gaponenko was the driver. He wore a seatbelt. He was travelling at

   a speed of approximately 50kph. His car was involved in a head-on type of collision

   with a car coming from the opposite direction attempting to turn right. His car was

   damaged and required towing.

   His wife picked him up and took him to Prince of Wales Hospital. No fractures were

   diagnosed. He was sent home. His care was taken over by his GP. Treatment was

   conservative, physiotherapy, hydrotherapy, analgesics, and anti-inflammatories.

   There was some improvement, from not being able to walk to now walking. The

   severity of the pain had not eased a great deal.

   He was referred to Dr Soo. The doctor recommended hydrotherapy. Hydrotherapy

   has now been stopped. The physiotherapist wanted to transcend to exercise program

   with weights, increasing attendance from twice a week currently to three times a

   week.

   Mr Gaponenko was employed as an operational manager at the time of the MVA. He

   has not worked since the time of the injury.”

2. Dr Machart’s opinion was:

   “The product of the MVA on 12/05/2022 was soft tissue injuries to the cervical and

   lumbar spine. Whether there was a structural injury to a disc is not clear, possibly

   mild in the cervical and lumbar spine, insufficiently severe to explain the severity of

   the ongoing symptoms and disability. There is an element of pain behaviour which complicated the physical presentation.

   There are mental health issues which may also be complicating the physical

   presentation.”

3. He determined 5% WPI.

Dr Peter Whetton, psychiatrist

1. Dr Whetton examined Mr Gaponenko and provide the following ‘summary and assessment’:

   “Mr Gaponenko is 42-year-old man who was involved in a motor vehicle accident on 12

   May 2022, some 14 months ago.

   At the time of the accident, he described himself as being in a state of shock and

   fearfulness, and subsequent to the accident, complained of ongoing physical

   restrictions and pain, which have led to limitations in his daily functioning and the need

   to be cared for by his wife.

   In this setting, there is the description of sleep disturbance, subsequent alcohol

   excesses and with disturbed dreams, intrusive thoughts, and flashbacks to the

   accident.

   Mr Gaponenko has gradually improved physically and undergone psychological

   treatment.

   Particularly in the last 4 months with the introduction of the antidepressant, Duloxetine,

   there has been better emotional control and less of an inclination to his irritability and

   anger.

   On examination on 3 July 2023, the major symptoms have been those of a Chronic

   Depression with Post-Traumatic Stress Disorder symptoms.”

THE PANEL’S REVIEW

1. Medical Assessor Sophia Lahz found 7% WPI. The main thrust of Mr Gaponenko’s submissions in complaint as to why Medical Assessor Lahz was wrong, are set out in paragraphs [8], [9], [10], [11] and [12] of Mr Gaponenko’s application and submissions. They submit that Medical Assessor Lahz failed to consider whether there was muscle weakness that is anatomically localised to an appropriate spinal nerve distribution and that it should have been DRE category III.

2. The Panel determined the re-examination was required. Medical Assessor Lahz found a WPI of 7%, 5% for the cervical spine, 2% for the left shoulder under the Nguyen principle, and 0% for the lumbar spine.

The examination

1. Mr Gaponenko attended the Commission’s rooms unaccompanied for re-examination on

   
   

   11 September 2024 and was assessed by Medical Assessor Rosenthal, on behalf of the Panel.

History of motor vehicle accident

1. Mr Gaponenko was a 43-year-old male who was involved in a motor vehicle accident on

   
   

   12 May 2022. He said he was driving a BMW with his seatbelt on. He was going straight when a car turned nearby causing a collision on the left side of his vehicle in the middle. Airbags went off. He said he went home after the accident and attended Prince of Wales Hospital the next day.

History of symptoms and treatment following the motor accident

1. He had various X-rays at the hospital. He was given painkillers and sent home. His complaints were in regard to neck and back pain with subsequent radiation of pain to his left upper limb and left hand.

2. He saw his general practitioner (GP) who sent him for physiotherapy and hydrotherapy which occurred after some initial delay. He was also sent to a psychologist as he developed a psychological injury.

3. He was referred to Dr Soo, an orthopaedic surgeon. Various MRIs were performed. Dr Soo suggested surgery.

4. He was treated conservatively with more physiotherapy and hydrotherapy which was eventually stopped. He could not recall exactly when. He could not recall having any injections or other procedures. He is now doing stretches at home. He is on various medications and sees his psychologist.

5. He has ongoing pain in his neck, mid and low back and pain radiating to his left arm and into his left hand. He said he is restricted from using his left hand and arm because of pain.

Details of any relevant injuries or conditions sustained since the motor accident

1. He reported no intervening incidents since the subject accident.

Current symptoms

1. He had low back pain and mid back pain which is constant. He cannot sleep. He rates the pain around 7/10, sometimes higher.

2. He also had neck pain which radiated into his left arm and hand.

3. He said he did have some right leg pain at one stage but this had resolved.

4. Walking was restricted for about 30 minutes. Sitting was also restricted.

5. His pain levels vary, some days were worse than others. The medication, Duloxetine, helped to ease his pain.

Current treatment

1. He took Duloxetine, Lyrica, Melatonin and Mobic.

2. He was not having any physical treatments.

Pre-accident medical history and relevant personal details

1. He reported no significant pre-existing injuries. He said he was in good health prior to the accident.

2. He was working as an operations manager for a catering business and café with his wife. He said he organised deliveries, was doing lifting and getting supplies and he was doing this full-time for three years prior to the accident. Since the accident, he has not worked.

3. In the past, he had worked as a food and beverage manager in hotels.

4. He was currently getting insurer’s payments and his wife had become his carer.

5. He lived in a house with his wife and two children aged 12 and 10. He did no household chores. He had someone coming in to mow his lawns. He could drive short distances, picking up the children before and after school. He went walking on the beach. He did not do any shopping. He had no particular hobbies.

CLINICAL EXAMINATION

1. On examination, Mr Gaponenko presented with a very stiff posture. There were pain behaviours throughout the physical examination.

2. He weighed 81kg. He was 168cm tall.

3. His gait was normal.

4. Examination of his neck revealed no particular tenderness, spasm or guarding. He self-reduced neck movements by two-thirds in all directions. Repeated neck movements were variable. Some of his movements displayed asymmetry of rotation and others did not. Grimacing occurred on movement.

5. He had very minimal movements at the left shoulder with passive movements far greater than active. The right shoulder had a full range of motion. Attempted measurements of the left shoulder revealed abduction and flexion to 80°, extension to 15° then there was 0° adduction and virtually 0° internal and external rotation. On some movements asymmetry of rotation was present with one third reduction in right rotation and one-half reduction in left rotation. Other neck movements were reduced by one half symmetrically.

6. There was global weakness in his left upper limb but no anatomically localised muscle weakness. Repeated left shoulder movements were variable by more than 20 degrees in abduction and flexion.

7. There was reduced sensation reported in the anterior and posterior aspects of the little and ring fingers of his left hand but there were no other neurological deficits present in his upper limbs.

8. Upper arm measurements were 35cm on both sides, 10cm above the olecranon. Forearm measurements were 32cm on the right and 31cm on the left, 10cm below the olecranon.

9. Range of motion of the left shoulder was inconsistent. This was put to him and he said pain was the limiting factor and he was providing his best effort.

10. Examination of his lumbar spine revealed no tenderness, spasm or guarding and a normal lumbar lordosis. Back movements were all reduced by one-third in all directions.

11. He could not get up on his heels or toes and only did a very partial squat.

12. Straight leg raise was 60° on both sides. His Lasegue’s signs were negative. Muscle power in the lower limbs was normal and his reflexes were normal.

13. He reported some reduced sensation globally in his right lower leg, not following any dermatomal distribution.

14. He did not describe any radicular symptoms in his lower limbs.

15. Pain behaviours with grimacing and inconsistencies were noted and his explanation for the inconsistencies was that he was in pain.

DISCUSSION

Causation

1. The Panel accepted the neck and back injuries as being causally related to the accident.

   
   

   Mr Gaponenko reported symptoms in both these areas following the motor vehicle accident.  

2. The Panel agreed with the reasoning and diagnosis in Medical Assessor Lahz’s certificate:

   “The POW hospital and GP (Menai Practice) records support the presence of cervical spine and lumbar spine soft tissue injuries due to the subject motor accident given he reports symptoms in both locations immediately after the motor accident with such symptoms recorded in the medical notes.”

3. The Prince of Wales Hospital records and the GP notes of Menai Practice both confirmed neck and back injuries following the accident. The injuries were consistent with the mechanism of the accident.

4. Medical Assessor Rosenthal’s clinical findings were slightly different to that found by Medical Assessor Lahz. He accepted, however, that there were radicular complaints and the possibility of asymmetry of neck movement which would result in cervicothoracic DRE category II, 5% WPI.

5. The lumbar spine, assessed under lumbosacral spine Table 72, page 110, had no spasm or guarding, no asymmetry of motion, no non-verifiable radicular complaints, no structural inclusions and no radiculopathy. It was DRE category I which gave rise to 0% WPI.

6. The left shoulder is reasonably assessed as restricted motion in relation to the neck (Nguyen decision). There was no evidence of a discrete left shoulder injury. The Medical Assessor did not view any radiology at the time of the examination.

7. Assessing impairment of the left shoulder, range of motion cannot be used as it is inconsistent and certainly the range displayed was not consistent with any known pathology in the shoulder joint. He may have some AC joint arthritis and, using assessment by analogy, under Tables 18 and 19, the Medical Assessor assessed mild crepitation of the AC joint which results in 3% (rounded) upper extremity impairment which converts to 2% WPI.

8. On examination, Mr Gaponenko’s total WPI was 7% and therefore the Panel found the same impairment as Medical Assessor Lahz.

Discussion

1. The matters that were referred to the original Medical Assessor were the cervical spine and lumbar spine, and in her Medical Assessment Certificate (MAC), she opined that

   
   

   Mr Gaponenko had an impairment of the cervical spine of DRE category II, 5% WPI and allowed for a non-verifiable radicular complaint in the left upper extremity and adduced an impairment of DRE category I for the lumbar spine and allowed 2% upper extremity impairment (UEI) for restricted motion of the left shoulder.

1. In Mr Gaponenko’s submission to the Panel, it was held that the Medical Assessor erred in respect to assessment of the level of WPI deriving from the cervical spine injury. In paragraph 10 of their submission, they felt the Medical Assessor failed to consider whether there was muscle weakness that was anatomically localised to an appropriate spinal nerve distribution and/or reproducible sensory loss that was anatomically localised to an appropriate spinal nerve distribution, both being clinical findings listed in cl 1.138 of the Permanent Impairment Guidelines and that such criteria could lead to a finding of radiculopathy.

2. The Medical Assessor did not find new clinical findings to confirm the presence of cervical radiculopathy and as the reflexes were symmetrical, there was no muscle atrophy, there was no myotomial loss of strength nor upper limb neural tension signs, which were negative bilaterally.

3. Medical Assessor Rosenthal, in his examination on 11 September 2024, noted

   
   

   Mr Gaponenko did have neck pain which radiated to the left arm and hand and had low back pain, which was constant and at some stage, had right leg pain but that had resolved.

4. The clinical findings at assessment of the neck showed no particular tenderness, spasm or guarding but there was restricted motion and repeated neck movements were variable. Some of the movements displayed asymmetry of rotation others did not. He noted there was some restriction of the left shoulder with passive movements far greater than active motion and that the other shoulder had a full range of motion. Attempted measurements of the left shoulder were deemed to be inconsistent. He noted that apart from the reduced sensation reported in the anterior and posterior aspects of the little and ring fingers of the left hand, there was no other neurological deficit present in either upper limb and no wasting of the upper arm, and only 1cm wasting of the left forearm. There was not sufficient evidence for radiculopathy at the Panel assessment in the upper extremity, noting there was global weakness in the left upper limb but no anatomically localised muscle weakness and apart from the sensory change, there was no other neurological deficit in his upper limbs.

5. Both the MACs and the Commission’s examination addressed the radicular complaint in the left upper extremity but there was insufficient finding to support radiculopathy in the left upper extremity.

6. The Commission’s assessment also confirmed a 3% UEI for the left shoulder which equates to 2% WPI and DRE category I for the lumbar spine, consistent with the findings in the MAC.

7. This confirmed a 7% WPI which were the findings in the original MAC of 14 February 2024, which is confirmed by the Panel.

DETERMINATION

1. The Panel affirms the certificate of Medical Sophia Lahz, dated 14 February 2024, certifying a WPI of 7%.