Hewat v Transport Accident Commission of Victoria
[2023] NSWPICMP 222
•19 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hewat v Transport Accident Commission of Victoria [2023] NSWPICMP 222 |
| CLAIMANT: | Sharlene Hewat |
INSURER: | Transport Accident Commission (VIC) |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 19 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessment by Medical Assessor (MA) Gorman of minor (now threshold) injury and whole person impairment (WPI); claimant’s application for review of WPI assessment under section 7.26; no dispute about minor injury and assessment of psychiatric injuries found a non-minor PTSD; claimant first car in a three car rear end collision on a country road; injuries alleged lumbar and thoracic spine, pelvis, hip, left and right legs; MA found 0% in all areas other than the lumbar spine from which he deducted one tenth for pre-existing impairment; claimant argued no objective evidence of pre-existing impairment therefore no deduction; Held – claimant re-examined and her condition had improved; she was no longer limping or experiencing symptoms in her legs; Clause 6.21 of the Motor Accident Guidelines referred to; impairment assessed as the claimant presented at the examination; her lumbar spine injury was assessed as diagnosis related estimate (DRE) II attracting a WPI of 5%; no deduction made as there was no evidence of any symptomatic pre-existing impairment; Medical Assessment Certificate (MAC) as to minor injury not considered; MAC as to WPI revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate of Medical Assessor Gorman dated 24 April 2022 with regards to the medical assessment matter concerning the degree of Ms Hewat’s whole permanent impairment resulting from the injuries caused by the motor accident. 2. Certifies that Ms Hewat has a whole person impairment which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Ms Hewat was involved in a motor accident on 17 May 2018. She was stationary on a country highway when the vehicle behind her was pushed into her vehicle after it was hit from behind by a third vehicle travelling at speed.
Ms Hewat says she injured her lower back in the accident and made a claim for statutory benefits against the Transport Accident Commission (TAC), the third-party insurer of the vehicle that hit hers.[1] A claim has also been made for damages.
[1] In accordance with s 3.6 of the Act, the statutory benefits claim was managed by a NSW third-party insurer (QBE Insurance Australia Limited) for the Nominal Defendant as the at fault vehicle was an interstate insurer.
Ms Hewat referred to the Personal Injury Commission (the Commission) a medical assessment matter about the degree of her whole person impairment (WPI). The insurer, in its reply, requested the Commission determine a medical assessment matter about whether any of the claimant’s injuries were minor injuries.
On 24 April 2022, Medical Assessor Gorman issued to the parties a single document comprising:
(a) certification that one of Ms Hewat’s injuries (the lumbar spine injury) was not a minor injury;
(b) certification that the degree of Ms Hewat’s WPI was 5%, and
(c) a statement explaining his reasons for the certifications.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision about the degree of her WPI. On 14 November 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment of WPI and allowed the Review to proceed. On 22 December 2022 the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Ms Hewat’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[3] Section 133. The current version of the Guidelines is Version 1 which is effective fromDue to the nature of the injuries sustained by the claimant, chapter 3 of the AMA4 Guides concerning the musculoskeletal system is relevant.
If any impairment to the upper limbs results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor,[4] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI. This principle, known as the Nguyen principle, applies equally to an impairment to the lower limbs arising from an injury to the lower limb.
[4] [2011] NSWSC 351.
Dispute resolution
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.[5]
[5] See s 4.12 of the MAI Act.
Schedule 2(2)(a) of the MAI Act declares a dispute about permanent impairment to be a medical assessment matter and Schedule 2 (2)(e) declares a dispute about threshold injuries (previously minor injuries) to be a medical assessment matter[6].
[6] As of 1 April 2023, the terminology of “minor injury” was replaced by the term “threshold injury” and this applies to all claims arising out of motor accidents and disputes regardless of the date of the accident. The Panel has adopted the terminology of minor injury when citing the assessment and the parties’ submissions.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessment matters to be referred to the the Commission for assessment and includes provisions relevant to an original medical assessment such as Medical Assessor Gorman’s, further medical assessments, and the Review of medical assessments by this Panel.[7]
[7] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Gorman examined the claimant on 6 April 2022. He issued his certificates on 24 April 2022. He states at [3] he was asked to assess:
(a) lumbar spine - disc bulge with annular tear at L5-S1;
(b) thoracic spine – musculoskeletal injury;
(c) pelvis – musculoskeletal injury;
(d) hip – musculoskeletal injury;
(e) left leg, foot and toes – injury to left lower extremity consequent upon injury to lumbosacral spine as a natural and direct consequence of spinal injury pursuant to the Nguyen principle, and
(f) right leg – injury to left lower extremity consequent upon injury to lumbosacral spine as a natural and direct consequence of spinal injury pursuant to the Nguyen principle.
Medical Assessor Gorman took the following history from the claimant:
(a) at the time of the accident the claimant was a kitchen hand and cleaner at the local hospital;
(b) she is now working in an office elsewhere;
(c) her previous history included an ear condition and an ectopic pregnancy;
(d) X-rays in her general practitioner’s (GP) records indicated a left clavicle fracture in 2010, a lifting injury in 2011, right sided sciatica in March 2021, right shoulder problems in February 2014 and a stiff neck in February 2018;
(e) the claimant got out of the car after the accident and her father drove her to the local hospital;
(f) she had pain in her lower back immediately and was sent for an X-ray and then CT scan;
(g) she has had physiotherapy for two years;
(h) an MRI showed a disc bulge and annular tear;
(i) she has seen an orthopaedic surgeon and had two epidural injections, and
(j) she has had pain in the left hip and down the left leg.
The claimant’s current complaints were reported by Medical Assessor Gorman at [13] as including:
(a) her back still gives her trouble;
(b) twisting worsens pain;
(c) her legs give way on occasions in the morning;
(d) she moves around a lot at work;
(e) her legs are not time or tingling;
(f) she gets left leg pain if her back “plays up”;
(g) she relies on her boyfriend to carry a heavy shopping basket, and
(h) she takes Panadol and Nurofen.
On examination, the claimant limped slightly favouring her left leg. Her cervical spine had a normal range of motion without muscle spasm or guarding. There was no wasting of muscles and neurologically her upper limbs were normal. In the thoracic spine there was no pain, the range of motion was equal and normal in rotation and there were no radiating pain symptoms.
On examination of the lumbar spine there was dysmetria – extension of one third whereas flexion was two thirds. Lateral flexion was reduced but symmetrically so. There was pain in the lower left. Neurological examination was normal although the claimant complained of sensory symptoms in the left leg.
All lower limb joint movements were normal.
Medical Assessor Gorman diagnosed at [23] and [24]:
(a) no frank injury to the left or right legs and no injury to the left foot and toes;
(b) the left hip, pelvis and thoracic spine injury has resolved, and
(c) in respect of the lumbar spine there was a musculoligamentous strain with annular disc tear. The lumbar spine was symptomatic immediately after the accident and the injury was caused by the accident. He considered the best explanation for the ongoing pain is an annular tear in the L5/S1 disc. The disc was abnormal on a previous CT and had been symptomatic previously but was asymptomatic at the time of the accident.
He found the annular tear a non-minor injury and all other injuries minor.
In terms of permanent impairment, he assessed the claimant’s WPI at 5% (DRE category II) on the basis of the dysmetria found in the lumbar spine movements. He noted previous lumbar symptoms which had resolved and deducted 10% for that.
Medical Assessor Gorman indicated that in respect of the thoracic spine, pelvis and hip, because he had found those to be minor injuries, he was not required to assess their WPI but that if he was, they would attract a 0% WPI.
Medical Assessor Gorman found the left and right leg symptoms were referred from the claimant’s back injury but as there was no effect on the range of motion, there was no impairment that could be assessed.
Claimant’s submissions
The claimant submits that the Medical Assessor erred in his assessment of the pre-existing impairment in breach of cl 6.31 of the Guidelines which required there to be objective evidence of a symptomatic permanent impairment at the time of the accident and then its value must be assessed and deducted.
The claimant says it is not correct to reduce an impairment by a percentage.
The claimant also says that the Medical Assessor erred by stating he need only assess the permanent impairment of non-minor injuries. The claimant says a finding of “minor injury” does not preclude an assessment of WPI because a finding of a single non-minor injury permits the claimant to recover ongoing statutory benefits and damages.
Insurer’s submissions
The insurer’s submissions agree there was an error by Medical Assessor Gorman as to the assessment of a pre-existing impairment but says it is not material to the outcome.
The insurer also agrees that the Medical Assessor has misinterpreted the law in relation to minor and non-minor injuries and the relationship with WPI but again says this is not material to the outcome of the dispute.
Procedural matters
The President’s delegate decision noted the two certificates that were under review (minor injury and permanent impairment) and said, “the applicant’s ground for review in respect to the medical assessment of permanent impairment … satisfied me of reasonable cause to suspect that the medical assessment was incorrect in a material respect”. The delegate accepted “the application”. While the reasons refer earlier to the two disputes and medical assessments in the plural, the President’s delegate made it clear that it was only the medical assessment matter in respect of WPI that was being referred to the Panel.
For completeness the Panel notes that the insurer has not ever challenged Medical Assessor Gorman’s minor injury assessment certificate of assessment. The Panel also notes that Medical Assessor Sidorov has now determined the claimant sustained a post-traumatic stress disorder injury which is not a minor injury.
The Panel noted that the real issue in dispute in this matter is the degree of the claimant’s whole person impairment resulting from the following injuries:
(a) lumbar spine, including any consequent impairment in the left or right legs;
(b) thoracic spine;
(c) pelvis, and
(d) hip.
The Panel advised the parties of the medical examination date and issued directions for any final documents by 14 April 2023 (claimant) and 28 April 2023 (insurer).
No further submissions were received from either party.
REVIEW OF THE EVIDENCE
The claimant has provided a bundle consisting of 69 pages. Within the documents were liability notices, the police report and the insurer’s internal review decision which have been read but will not be considered further.
The insurer provided a bundle of documents totalling 519 pages including a number of case studies (concerning minor injuries) and a list of payments made on the claim, none of which were relevant to the medical assessment matter before the Panel.
Claim form and claim documents
The claimant completed her application for statutory benefits on 21 June 2018.[8] She describes her injuries as “damaged disc in my lower back, I have a bulge and an annular cleft tear and am unable to walk properly and have been put off work”.
[8] Document A1, page 1 of the claimant’s bundle.
Ms Hewat says in this form that she attended the accident and emergency department, but they were busy and she was sent to her local GP.
Ms Hewat denied any illness or injury affecting her body at the time of the accident.
Dr Campbell signed the certificate of fitness and capacity attached to the claim form on 29 May 2018.[9] He identified a lower back injury and L5-S1 disc injury and said there were no known pre-existing factors relevant to the condition. He advised the claimant to have a CT or MRI scan and physiotherapy and referred her to a specialist. He placed restrictions on her work duties.
[9] Document A2, page 8 of the claimant’s bundle.
Treating medical records and reports
The insurer’s original submissions[10] provide at [3] a detailed list of the claimant’s pre-accident medical history extracted from the GP records. In particular the insurer notes a 6 October 2011 attendance for back pain with a CT scan showing a broad-based disc bulge at L5/S1, and the insurer says there are no further complaints of low back pain. The Panel notes while there were other musculoskeletal complaints, there was nothing long standing and certainly no suggestion at the time of the accident of any issue of a musculoskeletal nature.
[10] That were before Medical Assessor Gorman are document R1 at page 1 of the insurer’s bundle.
The insurer’s submissions at [4] provide a similarly detailed analysis of the claimant’s post-accident treatment.
Within the documentation is an MRI report undertaken on 30 May 2018[11] which says “At the level of L5-S1, a broad central disc bulge is shown with an annular cleft tear. This is most likely degenerative in nature”. There was associated lumbar facet joint disease and no convincing sings of lumbar canal stenosis or focal acute disc protrusion.
[11] Document A5, page 23 of the claimant’s bundle.
On 4 June 2018, the claimant was referred by her GP, Dr Campbell to Dr Turner, orthopaedic surgeon.[12] The referral says, “she didn’t seem too bad at first but has since become quite disabled and unable to carry on with her work as a cleaner at the local hospital”. There is no report from Dr Turner but it appears the claimant did not attend upon him.
[12] Document A6, page 25 of the claimant’s bundle.
On 4 June 2018, Dr Campbell also referred the claimant to a physiotherapist in Deniliquin.[13] Ms Barclay physiotherapist responded on 21 June 2018[14] advising that, five weeks after the accident, the claimant still had significant low back pain particularly on the left side, although it was improving. She had restricted movements but was able to do some chores at home.
[13] Document A7, page 27 of the claimant’s bundle.
[14] Document A8, page 28 of the claimant’s bundle.
On 23 July 2018 a referral was given by Dr Campbell to Mr Barnare orthopaedic surgeon.[15]
[15] Document A9, page 29 of the claimant’s bundle.
On 27 May 2019 Dr Campbell provided a further referral for physiotherapy with
Mr Slattery in Echuca as the claimant was moving to that area.[16] There is a reference in that referral to weekly physiotherapy. Matthew Dobell wrote back on 19 July 2019[17] noting “significant deconditioning, fear of movement, greatly restricted mobility in all directions and a strong focus on her MRI findings”. Ms Hewat had not responded to the epidural injections. Mr Dobell was going to commence with some functional rehabilitation.
[16] Document A10, page 30 of the claimant’s bundle.
[17] Page 357 of the insurer’s bundle.
There is also, within the documents, a referral dated 27 May 2019 to Ms Prowse regarding the claimant’s symptoms “which are suggestive of PTSD”. There is a further referral dated 20 November 2019.[18]
[18] Both referrals are documents A11 and A12 found at pages 31 and 32 of the claimant’s bundle.
Mr Barnare has provided his records.[19] He has seen the claimant three times on
13 August 2018, 20 May 2019 and 31 July 2019.
[19] Document R5 at page 339 in the insurer’s bundle.
Mr Barnare wrote to Dr Campbell on 13 August 2018[20] noting the claimant’s complaints of low back pain and left hip pain. He viewed the MRI and noted “severe L5/S1 disc disease with a broad base disc bulge”. He said she does not have claudication or sciatica or bowel or bladder issues. There was paraspinal muscle spasm but good spinal movements. Straight leg raising was free and her back pain more on the left side in the sacroiliac area. He wanted the claimant to have MRIs of the hips and then was going to consider injecting one or the other.
[20] Page 364 of the insurer’s bundle.
Mr Barnare filled in a report type questionnaire addressed to QBE and dated
14 November 2018[21] which noted the claimant had constant left sided groin pain for six weeks, that she had a left hip labral tear and an L5/S1 disc prolapse. He advised that surgery was an option.
[21] Page 352 of the insurer’s bundle.
Medico-legal reports
Dr Bentivoglio provided a report dated 4 December 2020 for both the claimant and the insurer. He had a history of the accident that is consistent with other histories, and he was also told about the 2011 previous back issue. He has a history of the development of symptoms, two years of physiotherapy, the referral to Mr Barnare and the two epidural injections.
Ms Hewat complained of ongoing back pain with fluctuating symptoms. She complained of pain radiating down both limbs to the knees more in the left than the right. She takes pain medication.
The claimant did not limp and had half the expected range of motion. Straight leg raising was limited. There were no neurological symptoms in the lower limbs.
Dr Bentevoglio diagnosed an aggravation of pre-existing lumbar spine abnormality which had been asymptomatic. He considered the treatment she had was conservative and appropriate. He supported a bone scan.
Dr Patrick, general, vascular and trauma surgeon, provided a report to the claimant’s solicitor dated 1 March 2021. He has a consistent history of the accident and the claimant being concerned for the elderly couple in the car immediately behind her.
The claimant had been taken by her father to Deniliquin Hospital where she was seen but sent back to her GP. She was referred for an X-ray and experienced pain radiating across her low back and into both legs the left worse than the right. She also reported hip pain and her left hip is still “not right” and she limps.
The claimant was referred for an MRI of her lower back and left hip / buttock which reported L5/S1 disc disease with a bulge. While Dr Patrick did have a history of some prior symptoms, he has a history of increased symptoms due to the accident.
Dr Patrick notes the referral to orthopaedic surgeon Mr Barnare who recommended physiotherapy and epidural injection.
The claimant’s work was terminated in December 2018.
On examination, the claimant’s neck and shoulders were normal. The lumbar spine was stiff and there was reduced and asymmetrical range of motion in the lower back. With the right thigh and calf measurements showing “significant discrepancy” and muscular atrophy. There was a diminished left ankle jerk. Right hip motion was normal but at the left hip there was limited movement.
He found the presence of radiculopathy, assessed lumbar spine impairment at DRE category III (10%) and recommended referral to a neurosurgeon or orthopaedic spine surgeon. He disagreed with any apportionment noting the claimant had been asymptomatic for six years before the accident.
In a separate report he assessed WPI at 12% being 10% for the lower back and 2% for the left hip.
Other assessments
The claimant was assessed by Medical Assessor Sidorov who determined on
20 October 2022 that the claimant had a non-minor injury namely post-traumatic stress disorder. He assessed Ms Hewat’s WPI at 5%.
The claimant denied any previous mental health issue although gave a history of relationship issues (which is not necessary to recount in these reasons).
There was a consistent history of the accident although a little more detail was given. The claimant had seen “cattle on the road” signs, slowed to 80 kmph then saw the cattle and slowed to 40 km. An elderly couple in the car behind slowed as well but the third driver did not. The elderly couple were injured, and an ambulance was called to assist them. A doctor driving past stopped to assist. The claimant was not taken to hospital for treatment but taken to hospital because that was where she worked, and her employee told her to get checked out by her GP.
The claimant gave a consistent history of the development of her symptoms and treatment since the accident.
The claimant said she had not worked for three years and had a low mood. She described anxiety in the car, and it took her five to six months before she got back into a car and eight to nine months before she started driving. A year after the accident she described dissociative episodes and she also developed nightmares and significant anxiety in a car to the point of having a panic attack. She has had intrusive thoughts and flashbacks.
In terms of current symptoms, the claimant complained of back pain without much improvement, and it is exacerbated when she sists or stands in one place or walks for too long or bends over. She experiences radiating pain down her legs. She reported continued psychiatric symptoms. Her mood had improved since commencing employment.
The claimant reported managing her self-care activities and she cooked and cleaned her home. She could leave the house but was anxious. She complained of memory and concentration issues.
Medical Assessor Sidarov asked the claimant about a 2007 antidepressant prescription and while the claimant could not remember it but assume it was in relation to a relationship issue. She said she had experienced previous panic attacks also in the context of a relationship issue. She was asked about the onset of her post-traumatic stress disorder symptoms, and she said that her symptoms had worsened as time went on which was why she went to the doctor.
Medical Assessor Sidorov considered the accident was the cause of the claimant’s current psychiatric presentation.
RE-EXAMINATION FINDINGS
Ms Hewat attended a re-examination with Medical Assessor Moloney on 10 May 2023. She was unaccompanied. She had flown in from Albury to attend the interview and examination.
No radiological studies were available for inspection. There are reports of the radiology in the material provided by the parties.
Pre-accident history
Ms Hewat stated that she had been working full-time as a kitchen hand/cleaner at Deniliquin Hospital in the year before the accident. Before this employment she had worked as a cleaner and bar attendant.
At the time of the accident, she was single, but she now lives with her partner. Before the accident she did not participate in organised sporting activities but jogged for an hour per day. She said she had no previous injuries apart from those sustained in the car accident.
History of motor vehicle accident
Ms Hewat was driving her car and slowed down due to cattle crossing the highway when the car behind her collided with her car due to a third car impacting it. She was wearing a seatbelt restraint at the time, and airbags were not deployed. Ms Hewat was able to get out of her car and drove her car off the road and then help the couple in the car behind her.
Police and ambulance attended the scene but did not treat her. Her father collected her and drove her to Deniliquin Hospital where she worked, and she was advised by staff at the hospital to see her GP. No investigations were undertaken at that time.
History of symptoms and treatment following the motor accident
Ms Hewat’s GP organised an MRI of the lumbar spine and left hip and referred her for physiotherapy. She stated she had physiotherapy for two years with little improvement.
She was also referred to an orthopaedic surgeon in Shepparton who organised two epidural steroid injections which also resulted in little improvement.
Soon after the accident Ms Hewat said she had low back pain which radiated into the left hip region and down to the left foot with some associated weakness in her left leg.
There have been no further injuries or conditions sustained since the motor accident.
Current symptoms
The main source of Ms Hewat’s current pain is in the lower back region which occasionally radiates into the left buttock. She says currently there is no radiation of pain to or symptoms in the legs. The pain increases with sitting for more than an hour and after sitting she has difficulty walking.
Ms Hewat states her sleep is disrupted due to low back pain. On waking in the morning, her left leg feels weak but then returns to full strength. Her right leg is asymptomatic.
Due to her lower back pain, she avoids carrying any heavy articles and her partner helps with the shopping. She also states that having intimate relationships with her partner is limited due to low back pain.
She lives in a house with her partner and does some cooking and cleaning with help from him. She is able to drive without difficulty but occasionally gets panicked when braking. She no longer jogs but walks up to two blocks.
After the accident, she tried to return to work as a server in a café but found it too painful to stand all day. She only returned to full-time work one year ago. Ms Hewat is working full-time in an office job for eight hours per day and has a stretch break every 15 to 20 minutes. She is also helped by using a stand-up desk, but she avoids any heavy lifting in the office.
Current medication
Ms Hewat takes an occasional Panadol or Nurofen once or twice per week and has no manual therapy at present. She consults her GP when necessary.
Clinical examination
Ms Hewat sat uncomfortably during the interview. It had been a long day for her as she had driven to Albury and flown to Sydney and made her way, on her own, to the Commission’s medical suites. She became teary when discussing the accident. Her height was measured at 170 cm and her weight 76 kg.
Lumbar spine
Ms Hewat walked into the room and during the examination with a normal gait and was able to walk on heels and toes. Squatting was limited to 60% of normal range due to complaints of low back pain. On testing range of movement, flexion was 70% of expected range and extension was 40% of the expected range. Side bending was 80% of expected range bilaterally. Thus, there was asymmetry in flexion and extension when testing range of movement.
On palpation there was tenderness over the left gluteus medius medial insertion but no tenderness over the lumbar spines and sacroiliac joints. There was no guarding or spasm in the lumbar musculature. Straight leg raising when lying in a supine position was 70° bilaterally with negative sciatic nerve root tension signs.
On neurological examination, Ms Hewat’s lower limbs reflexes were brisk and equal on both sides with normal power on both sides.
There was a slight decrease in sensation to light touch over the left lateral thigh and lateral left calf with normal sensation over the ankles and feet, but it was difficult to localise this to an appropriate spinal nerve root distribution.
There was no muscle wasting apparent with the circumferences of the lower thighs measured at 52 cm on both sides at 10cm above the superior patella pole and midcalf at 36 cm on both sides.
Thoracic spine
Ms Hewat did not complain of thoracic pain during the history taking part of the examination.
On palpation, there was no tenderness in the thoracic spine region and on testing range of movement flexion/extension was 80% of expected range as was side bending bilaterally and rotation was 50% of expected range bilaterally limited by low back pain. There were no signs of radiculopathy and no non-verifiable radicular complaints in the thoracic spine region.
Hips and pelvis
There was near normal range of movement of both hips with no tenderness on palpation. Mr Hewat did not complain of any current symptoms in the region of the left hip or in the pelvis other than occasionally pain radiating into her buttocks.
There was no tenderness on palpation of the pelvic bones except for some tenderness over the insertion of the left gluteus medius muscle. Sacroiliac joints were stable.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 110° normal | 110° normal |
| Extension | 10° normal (there was no flexion contracture) | 10° normal (there was no flexion contracture) |
| Adduction | 20° normal | 20° normal |
| Abduction | 50° normal | 40° normal |
| Internal Rotation | 30° normal | 30° normal |
| External Rotation | 40° normal | 40° normal |
Knees
There was a full pain free range of movement in both knees with flexion of 130° and extension of 0°. No ligament laxity was noted and there was no pain on palpation and no crepitus felt or heard. Ms Hewat did not complain of any knee pain during the course of the examination.
Ankles and feet
There was a full pain free range of movement of both ankles with no tenderness palpated. Ms Hewat did not complain of any pain in her ankle or foot during the course of the examination.
WHOLE PERSON IMPAIRMENT ASSESSMENT
Lumbar spine
Assessment of the spine requires consideration of Chapter 3 of the AMA4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111 of the Guidelines).
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see table 6.7 in the Guidelines). The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 6.138:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Due to dysmetria of lumbar spine movements and the presence of non-verifiable radicular complaints (radiating pain into the left buttock on occasions), a classification of DRE II is determined which is 5% WPI.
On the basis of the examination findings of Medical Assessor Moloney, the claimant does not qualify for a DRE category III assessment. There was no loss or asymmetry of reflexes, no positive sciatic nerve root tension signs, no signs of muscle atrophy or decreased limb circumference and no muscle weakness. While there was some sensory loss in the left leg, it did not conform to an appropriate spinal nerve root.
Both Dr Bentevoglio and Medical Assessor Gorman reduced the claimant’s impairment due to a pre-existing impairment. Clause 6.31 requires there to be “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”. If there is, then the value of it is deducted from the current impairment to get the impairment caused by the accident.
The claimant has had lower back pain in the past which required investigation. However, there is no evidence in the claimant’s history or her GP notes of any complaints of pain or loss of spinal movement at the time of the accident. While there is objective evidence of a pre-existing lumbar spine problem, there is no evidence of it being symptomatic and therefore there should be no deduction made.
Thoracic spine
The claimant did not complain of thoracic spine pain at the examination but there was pain on testing some movements. The Panel accepts the claimant did sustain an injury to her thoracic spine which in producing only mild symptoms on testing. The claimant is therefore assessed as having a DRE category I which corresponds to a WPI of 0% in this region of her spine.
Lower limbs
There is no separate injury recorded in the contemporaneous notes to the left leg, right leg, left foot, or left toes as a result of the subject accident. The claimant did complin of radiating pain and symptoms in her left lower limb in the immediate post-accident period however at the medical examination conducted by Medical Assessor Moloney, there was no abnormality and no impairment of function evident.
The Panel is therefore not satisfied that the claimant sustained a frank injury to the left or right lower limb or is currently experiencing any symptoms in her lower limbs by way of a referral from the claimant’s lumbar spine injury.
Left hip and pelvis
The Panel is satisfied the claimant sustained a soft tissue injury to her left hip however as all ranges of motion were normal when Ms Hewat was examine by Medical Assessor Moloney, there is no evidence of any resulting impairment and the claimant is assessed as having 0% WPI.
There is no evidence of an injury to the pelvis and no evidence on examination of any impairment in that part of Ms Hewat’s body.
CONCLUSION
When examined by Dr Patrick in March 2021, and Medical Assessor Gorman, the claimant walked with a limp. Dr Patrick recorded in March 2021 a diminished left ankle reflex at the time of his examination, with wasting of the claimant’s thigh and calf muscles on the left.
Medical Assessor Moloney found no wasting apparent at the time of his assessment with ankle reflexes brisk and equal. The claimant walked normally with no limp.
The Panel notes that cl 6.21 of the Guidelines says that “the evaluation [of WPI] should only consider the impairment as it is at the time of the assessment”. The fact that the claimant had no signs of radiculopathy when examined by Medical Assessor Moloney and fewer complaints three years after Dr Patrick’s examination suggests to the Panel that the claimant has continued to recover from her injuries. This is to be expected and the normal passage for soft tissue and aggravation injuries like those experienced by Ms Hewat.
The Panel has found the same degree of impairment as Medical Assessor Gorman and confirms that certificate. The Panel notes the certification with respect to “minor” injury has not been disturbed.
30 November 2017.
0
1
0