Hickey v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 19
•24 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hickey v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 19 |
| CLAIMANT: | Paul Hickey |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 24 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was a driver in a stationary car hit from behind; injuries reported to neck, spine, left shoulder and right knee; Held – original Medical Assessment Certificate (MAC) set aside; Review Panel issued a new MAC; claimant’s injuries were caused by the motor accident and give rise to a permanent impairment which is greater than 10%; neck (cervical spine), back (lumbar spine), left shoulder and right knee; claimant has a past history of chronic neck and low back pain prior to the subject accident caused at prior workplace accidents; the quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the neck, back and left shoulder. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of theMotor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Murray Hyde-Page dated 26 November 2021. 2. Certifies that the following injuries were caused by the motor accident and give rise to a permanent impairment which is greater than 10%: · neck (cervical spine); · back (lumbar spine); · left shoulder, and · right knee. |
STATEMENT OF REASONS
INTRODUCTION
On 26 October 2017 the claimant, Mr Paul Hickey, was driving his 1970 MGB. He was stationary in his car waiting to turn right at the intersection of Clarence Town Road and Butterwick Road Woodville NSW. His car was struck from behind on the right by a car travelling at speed as he started to turn. His car was pushed forward approximately 20 metres into the intersection.
The insurer admitted liability in a s 81 notice dated 16 January 2019[1] .
[1] Insurer bundle AD 3 , R 2.
In an application dated 23 September 2020, the claimant sought an assessment of permanent impairment. As part of that claim, he sought damages for non-economic loss on the basis he has a whole person impairment (WPI) of more than 10%.
Medical Assessor Murray Hyde-Page initially determined the dispute by issuing a certificate dated 26 November 2021 finding that Mr Hickey had a WPI of not greater than 10%. Mr Hickey has lodged an application for review of that certificate with the Personal Injury Commission (Commission).
A delegate of the President of the Commission determined there was reasonable cause to suspect an error in the certificate of Medical Assessor Murray Hyde-Page dated 26 November 2021[2]. The President has now convened this Panel to review that certificate.
LEGISLATIVE BACKGROUND
[2] Claimant’s bundle, AD 2 pp 3-4.
General
In this review, Mr Hickey’s claim and his entitlements to compensation are governed by the Motor Accident Compensation Act 1999 (the MAC Act).
The assessment of damages for non-economic loss are provided for in Part 5.3 of the MAC Act. The 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 subject accident.
If there is a dispute about the degree of a claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment, a further medical assessment and the review of medical assessments by a Review Panel.
Permanent impairment assessment
Sub-section 133(2) of the MAC Act requires the assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines). The relevant version of the Guidelines in this case is Version 1 which apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.
Permanent impairment is to be assessed in accordance with the Guidelines which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
In a case involving a pre-existing impairment clause 1.31 of the Guidelines provides that the value of a pre-existing impairment must be calculated and subtracted from the current WPI value, only where there is “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.
In this review, the relevant chapters of AMA 4 Guides include chapter three the assessment of the: cervicothoracic spine, lumbosacral spine, upper limbs and lower limbs.
The assessments of the relevant injuries sustained in the accident are referred to briefly below.
Upper extremity- Spinal impairment
Assessment of the spine required consideration of Chapter 3 of AMA 4. Only the diagnostic related estimate method of assessment is allowed.
The spine is divided into three regions:
(a) the cervicothoracic;
(b) the thoracolumbar, and
(c) the lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment.
There are eight diagnostic related categories and a number of indicia provided. The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
DRE II requires:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in table 6.8 as:
(i) symptoms (shooting pain, burning sensation, tingling), 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 III requires radiculopathy which is defined in clause 1.138 of the Guidelines as:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
(1.138.1) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.2) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.3) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(1.138.4) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(1.138.3) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Shoulder impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3 of the AMA 4 Guides. The upper extremity is divided into regions, the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) internal, and
(f) external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4.
Lower extremity - knee impairment
The assessment of lower extremity impairment, specifically the knee, is governed by Chapter 3 of the AMA 4 Guides in accordance with Table 41 on page 78 of AMA 4.
ASSESSMENT UNDER REVIEW
Medical Assessor Hyde-Page examined the claimant on 26 November 2021 and issued his certificate dated the same day.
He was asked to assess the following injuries:
· neck – soft tissue injuries, disc injuries;
· back – soft tissue injuries, disc injuries;
· right knee – ligament and meniscus tears, arthritis, aggravation of arthritis, and
· left shoulder – soft tissue injuries, ligament injuries.
Medical Assessor Hyde-Page found that although Paul Hickey clearly has evidence of ongoing chronic complaints affecting his cervical spine, lumbar spine and left shoulder, he appears to have suffered aggravation of these conditions from the rear-end motor vehicle accident on the 26 October 2017.
Medical Assessor Hyde-Page found that in the claimant’s cervical spine there was evidence of dysmetria and reduced range of movement but not radiculopathy. He assessed the cervical spine at 5% WPI. In the lumbar spine he found pain and muscle guarding and reduced movement. There was no evidence of radiculopathy in the claimant’s lower limbs. He assessed DRE category II which gave 5% WPI. Regarding the left shoulder, he assessed that injury at 7% WPI. Regarding the right knee Medical Assessor Hyde-Page found that on that day’s examination the right knee was completely normal. He assessed the right knee at 0% WPI.
Medical Assessor Hyde-Page found that there is accurate information and data to state that the claimant already had DRE Category II cervical spine injury or complaint and DRE Category II lumbar spine injury or complaint prior to the motor vehicle accident. The claimant now presents with DRE Category II cervical spine injury or complaint and DRE Category II lumbar spine injury or complaint. Medical Assessor Hyde-Page made a 100% deduction for these pre-existent conditions. He found the left shoulder to have a 7% WPI with a one-tenth deduction for Mr Hickey’s left shoulder impairment which he rounded to 6%. He also found the left shoulder injury to be pre-existing.
Medical Assessor Hyde-Page found a total 6% WPI. This was based upon 0 % WPI for pre-existing impairment for the cervical spine, lumbar spine and right knee and 6% WPI for the left shoulder.
SUBMISSIONS
Claimant’s submissions
The claimant lodged preliminary submissions in support of the application for review dated 17 December 2021.[3] The claimant submits that:
· Medical Assessor Hyde-Page should have awarded him greater than 10% WPI;
· there is no evidence to conclude that the claimant also suffered from DRE Category II impairment in respect of the low back before this accident;
· the Medical Assessor should have found that prior to this accident the claimant fell within DRE Category I and therefore found the claimant had 5% WPI in respect of the back as a result of this accident;
· the claimant accepts that his neck is in DRE Category II and that he has pre-existing neck injuries;
· the Medical Assessor should have found that the claimant’s neck fell into DRE Category I prior to this accident and therefore should have found he had 5% WPI as a result of this accident;
· the claimant has medial compartment osteoarthritic changes measuring 2mm and patellofemoral compartmental degenerative changes measuring 2mm. On the table at page 83 of AMA 4 a 2mm cartilage interval in respect of the knee is 8% WPI. If the claimant was found to have had 8% WPI by the Medical Assessor he would in turn have had greater than 10% WPI, and
· regarding the left shoulder the claimant makes no complaint of 6% whole person impairment finding by the Medical Assessor and the claimant accepts this.
[3] Claimant’s bundle, AD 2 Number 1 pp 1-2.
Insurer’s submissions
In submissions dated 15 February 2021[4] the insurer disputes that the pain reportedly experienced by the claimant in his back, neck and left shoulder is casually related to the subject accident. The insurer attributable this pain to his two prior work accidents in 1988 (lumbar spine) and 2009 (cervical spine and left arm).The insurer submits that the claimant did not sustain any injury as a result of the subject accident and that the claimant’s alleged injuries arising from the subject accident are only minor soft tissue injuries and do not exceed the 10% WPI threshold.
[4] Insurer bundle AD 3, R 1 pp2-6 .
The insurer’s submissions then gave a summary and overview of the claimant’s treating medical history. This overview included summaries of the medical reports from Dr Regnis , Dr Ghabrial and the MRI scan on 21 August 2018. The insurer’s submissions referred to the report of Dr Harrington, orthopaedic surgeon who diagnosed the claimant with an aggravation injury to his lumbar spine, his cervical spine and a soft tissue injury to his right knee. He attributed the claimant’s current presentation to his pre-existing conditions and considered that any aggravation from the subject accident had now ceased. The insurer’s submissions also refer to the report of Dr Vickery, psychiatrist who did not consider that the claimant had any psychiatric diagnosis as a result of the subject accident.
In conclusion, the insurer submitted that, based on the treating medical records and the qualified medical evidence, the claimant’s alleged injuries to his back, neck, left shoulder and right knee as well as alleged psychiatric injury are not causally related to the subject accident. The claimant’s alleged injuries arising from the subject accident are only minor soft tissue injuries and do not exceed the 10% WPI threshold.
The insurer made further supplementary submissions dated 17 January 2022 [5] in reply to the claimant’s submissions.
[5] Insurer further bundle AD 9, R 12 pp 47-51 .
In respect of ground one concerning the pre-existing lumbar spine injury, the insurer refers to the examination by Medical Assessor Hyde-Page where he reported that “In his lumbar spine he has muscle guarding and stiffness but no radiculopathy.” The insurer then submits that Medical Assessor Hyde-Page accurately concluded that the claimant “actually already had DRE Category II cervical and lumbar spine injuries that result in a 100% deduction” and therefore, did not fall into error. Medical Assessor Hyde-Page assessed the claimant’s lumbar spine injury as already falling into DRE Category II prior to the subject accident and consequently resulted in a 100% deduction.
In respect of ground two concerning the cervical spine injury, the insurer submits that the Medical Assessor has not erred in his finding of no cervical spine WPI as the claimant had a pre-existing condition that was symptomatic and therefore does not satisfy the requirements for DRE Category II neck impairment. Medical Assessor Hyde-Page has come to a different conclusion to Dr Russo, over 5.5 years later, is entirely appropriate and not surprising in light of the time that has elapsed.
In respect of ground three concerning the assessment of the claimant’s right knee, the insurer submits that that there is no contemporaneous complaint made by the claimant about any injury to this right knee in the subject accident. The first investigation of the right knee was not until 4 February 2020 (three years and four months post-accident). Medical Assessor Hyde-Page’s history of the claimant’s symptoms after the subject accident is consistent in noting there was no contemporaneous complaint of injury to the right knee in the subject accident (paragraph 9 page 3). Regardless of the Medical Assessor’s assessment of the right knee, there is no evidence that the right knee was causally related to the subject accident in any event. Medical Assessor Hyde-Page has carefully considered the claimant’s symptoms, both prior and subsequent to the subject accident, as well as his own examination of the claimant and accurately concluded that the claimant’s WPI results in an assessment of 0%.
The insurer concludes it submissions by submitting that the claimant is not demonstrated any error of Medical Assessor Hyde-Page. His assessment of the claimant was conducted in accordance with the Medical Assessment Guidelines, Permanent Impairment Guidelines and AMA 4. It is submitted that Medical Assessor Hyde-Page has provided adequate reasons and demonstrated a clear path of reasoning in his total WPI finding of 6%.
Panel deliberations
The Panel issued directions or met on 21 April, 10 May and 19 August 2022. The Panel issued directions for the filing of bundles of documents or issued directions for a medical examination of Mr Hickey.
REVIEW OF THE EVIDENCE
Claim form
In the Personal Injury Claim Form dated 4 May 2018[6], the claimant stated that he sustained the following injuries as a result of the subject accident: neck – upper; chest – right side and lower back. No injury to the left shoulder or right knee was noted.
[6] Insurer further bundle AD 9, R 3 pp 9-15.
Treating medical evidence
The Panel notes that the claimant’s solicitors and the insurer have included over 700 pages of medical reports and records, general practitioner (GP) notes and insurer medical records. The Panel reviewed and considered all of these records in its deliberations. The Panel but does not intend to summarise all of these records all but will briefly refer to some of the more salient records provided by the claimant and the insurer.
In a report dated 21 March 2016, Dr Marc Rosso, pain specialist, noted Mr Hickey’s left shoulder symptoms.[7] Dr Rosso noted that an X-ray of the left shoulder on 1 October 2015 is essentially normal. Dr Rosso also noted ultrasound of left shoulder 1 October 2015 shows a small tear of the subscapularis tendon, thinning of the supraspinatus tendon and a tear of the supraspinatus tendon attachment. There Is functional impingement of the subacromial bursa with abduction.
[7] Insurer bundle AD 3, R 4 pp 16-18.
In a Medical Certificate dated 11 May 2018 Dr Jeff Regnis, treating GP, certified that Mr Hickey’s diagnosis and injuries were soft tissue injuries to the cervical spine, right anterior chest and lumbar spine.[8] There was no record of any reported injury to the left shoulder or right knee.
[8] Insurer bundle AD 3, R 4 p 15.
There are numerous medical reports or certificates completed by Dr Regnis that refer to Mr Hickey having suffered a left supraspinatus tendon tear on 9 November 2015.[9] Dr Regnis also notes a workers compensation neck injury dated 28 July 2016.
[9] Claimant’s bundle, AD 2 pp 21-393.
Dr Ghabrial, treating orthopaedic surgeon, wrote in a report dated 4 July 2018[10] that he had treated the claimant for his prior back injury in 1986 and neck injury in 2009. Dr Ghabrial took a history of the subject accident as a result of which the claimant reported neck pain radiating to his arms and lower back pain radiating to his legs.
[10] Claimant’s bundle, AD 2, Number 4 p 18.
Medico-legal evidence
A report dated 25 September 2019 was prepared by Dr Chris Harrington, orthopaedic surgeon. Mr Hickey told Dr Harrington that the collision with the back of his MGB involved the other car travelling at approximately 100 kilometres per hour (km/h) . Dr Harrington’s opinion is that Mr Hickey’s spinal complaints would have precluded him from returning to the workforce, irrespective of the subject motor accident. Dr Harrington’s diagnosis is an aggravation injury to the lumbar spine, an aggravation injury to the cervical spine, and a soft tissue injury to his knee. His treatment since the accident is causally related to the aggravation injuries suffered in the subject motor vehicle accident. Dr Harrington’s opinion is that the current presentation is attributed to the pre-accident musculoskeletal complaints. The aggravation injuries causally related to the accident have now ceased.
Dr Harrington concluded his report by stating that: “I do not believe there is any permanent impairment caused by the motor vehicle accident. The clinical findings of his musculoskeletal system are due to the pre-accident injuries and complaints.”
In a report dated 20 May 2020, Dr Ghabrial, treating orthopaedic surgeon diagnosed the claimant with soft tissue injuries to his neck, back and left shoulder.[11] The claimant had developed post traumatic osteoarthritis in the right knee. He noted the claimant’s prior neck, back and left shoulder injuries but noted that the claimant’s symptoms remained quite severe after the subject accident. It his report Dr Ghabrial noted that he understood that the other vehicle was travelling over 100 km/h when it collided with Mr Hickey’s car.
[11] Claimant’s bundle, AD 2, Number 4 p 15.
In a supplementary report dated 20 May 2020, Dr Ghabrial assessed Mr Hickey with the following WPI. He found that the right knee had arthritic changes and assessed WPI at 12% without any deduction because there were no previous problems regarding right knee. He says the neck at 5% WPI with a 1% deduction for previous problems. He found the remaining 4% WPI to be attributable to the subject motor accident. Regarding the back he assessed the WPI at 5% with a 1% deduction for previous problems. He found the remaining 4% WPI to be attributable to the subject matter accident. Dr Ghabrial assessed both the neck and the back to be in DRE Category II. Regarding the left shoulder he assessed that that 7% WPI with a 1% deduction for previous problems. He found the remaining 6% WPI to be attributable to the subject matter accident. Combining all these values, Dr Ghabrial found the total WPI according to the combined values chart to be 23%.
In a report dated 29 June 2020, Dr Graham Vickery psychiatrist, reported that there was no apparent psychiatric impairment noted in the clinical examination.[12]
[12] Insurer bundle AD 3, R 11 p 38 .
Other assessments
There are a number of X-ray and MRI reports which are summarised or referred to in the re-examination report detailed below.
RE-EXAMINATION FINDINGS
Mr Hickey was examined by Medical Assessors Oates and Home on 30 November 2022.
PAST HISTORY
Mr Hickey states that he has a past history of Type II diabetes mellitus, managed with medication.
He has a past history of low back pain dating back to a workplace accident during the course of his work as a police officer in 1986. He recalls that he was wrestling a client at the time of the accident. He experienced low back pain, managed with analgesia and physical therapy. An injection to the low back in 1989 helped. He recalls that there were early symptoms of left leg pain but they resolved by 1995.
He recalls that he continued to experience intermittent low back pain present a few days per month, usually exacerbated by lifting, cold weather or other physical exertion. The pain would radiate across the lower back but not into the legs. He recalls no symptoms of lower limb paraesthesia or numbness prior to the subject accident. He consulted Prof Ghabrial, orthopaedic surgeon, in 1996. He advised conservative treatment of the L5/S1 disc protrusion.
He was discharged from the police force in 1989. He then worked as an administrator and manager at an accounting firm in the Maitland between 1995 and 1998. He then worked as a storeperson at TAFE between 1998 and 2016. He believes that he was retrenched due to his age.
He also recalls a history of neck pain dating back to 2011. He recalls that he injured this whilst working as a store person.
He did experience radiation of pain as far as the left elbow. He does not recall distal radiation of pain or upper limb paraesthesia prior to the subject accident.
He did undergo periodic physical therapy at Terrace Physiotherapy, which included passive treatment and the supervision of hydrotherapy exercise. The attendances continued periodically until the subject accident.
DETAILS OF SUBJECT ACCIDENT
On 26 October 2017, he was the seat-belted driver of a 1970 MG sedan waiting to turn right at the intersection of Clarence Town Road and Butterwick Road in Woodville. His vehicle was struck from behind by a car travelling at speed as he started to turn with impact to the right rear aspect of his vehicle. His car was pushed forward approximately 20 metres into the intersection. There was no secondary impact.
He recalls that his right knee struck the metal dash at the time of the accident.
He recalls the immediate onset of neck and back pain following the accident such that he experienced difficulty alighting from the vehicle. He alighted with assistance. Police and ambulance did not attend.
After exchanging details, he drove his car to the Maitland Police Station. He recalls that it took him two hours to lodge the incident report. He subsequently drove home.
He attended his GP the following day. He recalls early treatment with analgesia and physical therapy. He returned to Terrace Physiotherapy for treatment.
He described initial symptoms of neck, lower back, left shoulder and anterior right knee pain.
Following the accident, he attended Dr Ghabrial, his spinal surgeon. Conservative management was recommended. He has undergone periods of pool exercise.
Recently he has attended a further physiotherapist in Maitland for the supervision of pool exercises and home exercise.
He continues to take Ibuprofen 400mg nocte, plus i-ii during the day if required. He takes Lyrica 75mg to 150mg nocte to help the “nerve” pain in the back and left leg. He ceased Mobic due to gastrointestinal side effects.
CURRENT SYMPTOMS
There is frequent neck pain. The pain extends to his left and right arms. He reports paraesthesia extending to the ulnar three fingers of both hands. There is a feeling of weakness in his left hand.
He describes low back pain, increased in severity since the accident. He recalls new symptoms of radiating pain extending down the right lower limb to the right calf and into the lateral three toes of the right foot.
He describes fairly constant paraesthesia in the same territory.
At the left shoulder, he describes mild pain at rest but primarily pain associated with activity. There is restricted motion at the shoulder.
There is anterior knee pain associated with prolonged walking. He estimates a walking tolerance of 15 minutes. He uses a cane at times if he has to walk further. There is no swelling. There is no giving way. There is occasional clicking and catching. He avoids deep crouching. He avoids kneeling over his right knee. He can perform stair climbing with normal cadence.
There is marked sleep disruption. He is independent for activities of self-care. There is difficulty dressing in shirts with his left arm due to restricted left shoulder motion.
He is left hand dominant.
He lives with his wife. They have three non-dependent daughters.
At his home, he helps his wife with domestic chores. There is external help with heavier chores such as bathroom cleaning, mopping and vacuuming. He hangs shirts over hangers onto a rack. His garden is low maintenance. His wife assists with weeding.
Prior to the accident, he enjoyed collecting motor vehicles. He is also an office bearer at the British Car Club. He has an interest in local government.
Vocational rehabilitation
He last worked in 2016. He was hopeful of obtaining work as a caretaker at an agricultural college prior to the accident but these plans did not progress due to the car accident.
Examination
On examination, Mr Hickey is a 72-year-old, standing 175cm, weighing 86kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature without muscle spasm. Active cervical spine flexion is performed to a full range, extension one-fifth normal range, right and left lateral flexion are performed to one-quarter normal range, left rotation one-third normal range, right rotation half normal range. There is dysmetria. There is muscle guarding evident.
Upper extremities
Neurological examination of the upper extremities reveals normal myotomal power in all muscle groups. There is no muscle wasting. The circumference of the arms is 30cm on the right and 31cm on the left. The forearms are 28cm in circumference on each side. The deep tendon reflexes are symmetrically preserved. There is reduced sensibility elicited at the ulnar two digits of both hands. Provocation tests for ulnar neuropathy are negative.
Right shoulder
Examination of the right shoulder reveals no muscle wasting. Active motion is measured by goniometer methods as follows:
Shoulder Movements
Active ROM Measured
Right degrees (°)Flexion
160
Extension 50 Abduction 160 Adduction 40 External rotation 90 Internal Rotation 60
Left shoulder
At the left shoulder, motion is limited by local shoulder pain which radiates toward the neck. There is mild deltoid wasting. Active motion is measured by goniometer methods as follows:
Shoulder Movements
Active ROM Measured
Left degrees (°)Flexion
70
Extension 40 Abduction 90 Adduction 40 External Rotation 50 Internal Rotation 30
Lumbosacral spine
Examination of the lumbosacral spine reveals normal spinal curvature. There is no muscle spasm. Forward flexion is performed to half normal range, extension one-quarter normal range, right and left rotation are symmetrically performed to one-quarter normal range. There is no muscle guarding.
Straight leg raise is performed to 50° on the right and 70° on the left. Lasègue’s sign is positive on the right side.
Lower extremities
There is no lower limb wasting. The circumference of the thighs is 44cm on the right and 45cm on the left. The calves are measured at 33cm in circumference on both sides. There is reduced power of right ankle and hallux extension in the right lower extremity (L5). There is normal myotomal power in the left lower extremity.
There is reduced sensibility at the lateral border of the right foot and sole and to the lateral two toes of the right foot, conforming to an L5 or S1 dermatomal pattern.
The right ankle jerk is reduced in amplitude (S1).
Right knee
Examination of the right knee reveals no joint effusion. Active motion measured 0° extension to 110° flexion. Ligaments are stable in AP and mediolateral planes. There is no abnormal joint crepitus.
REVIEW OF DIAGNOSTIC IMAGING
MRI scans of cervical spine, 21 August 2018 demonstrate multi-level spondylotic changes between C3/4 and C6/7 associated with mild broad-based disc osteophyte complex at C3/4, C4/5, C5/6 and C6/7. There is no significant spinal stenosis. There is no cord compression. There is normal cord signal. There is uncovertebral and facet joint spurring from C3/4 to C6/7, more severe at C5/6 and C4/5 on the right side. In the thoracic spine, there is no abnormality. In the lumbar spine, there is mild disc desiccation without significant disc bulging, spinal canal or neural canal stenosis.
X-ray of right knee, 6 February 2020 reported to demonstrate mild osteophytic changes. The panel reviewed the imaging and found that the changes of osteoarthrosis are mild. The joint space compartments are maintained in weight bearing radiographs, measured as follows:
· medial compartment – 4mm;
· lateral compartment – 5mm
· patellofemoral compartment – 6mm.
DIAGNOSIS AND CAUSATION
Mr Hickey has a past history of chronic neck and low back pain prior to the subject accident.
He recalls pain radiating from his neck to his left shoulder but no specific local left shoulder pain prior to the accident. There had been imaging of the left shoulder with prior ultrasound images reportedly demonstrating a tear of the supraspinatus tendon attachment on ultrasound examination of 1 October 2015.
There is no record of the range of left shoulder motion in the medical file prior to the subject accident.
In the subject accident, his vehicle was struck from behind. He recalls a high speed impact with damage to the rear of the vehicle with increased pain in his neck and lower back aggravating the pre-existing conditions following the subject accident. He also developed left shoulder and right knee complaints.
There is early documentation of lower back pain radiating to the right leg recorded by Dr Ghabrial in July 2018. Back pain is recorded in the medical record, as well as a progression of symptoms at the left shoulder and ongoing complaints at the right knee.
Diagnoses related to the subject accident are as follows:
· Cervical spine soft tissue injury, aggravation of mild underlying multi-level degenerative change (cervical spondylosis).
· Lumbar spine: aggravation of lumbar spondylosis. Lumbar radiculopathy.
· Left shoulder: soft tissue injury, aggravation of underlying cuff pathology and bursitis.
· Right knee patellofemoral contusion. There was no finding of patellofemoral crepitus at this assessment. There are no findings of joint space narrowing on the most recent plan radiographs performed in February 2020.
PERMANENT IMPAIRMENT ASSESSMENT
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”The Panel finds that the impairment in this case meets the definition of permanency outlined above.
Cervicothoracic spine
The clinical presentation is consistent with a DRE Cervical Spine Category II impairment.
There is spinal dysmetria. There are non-verifiable radicular complaints in the upper extremities with bilateral paraesthesia in the ulnar three digits.
The objective clinical criteria required for a diagnosis of cervical radiculopathy in accordance with section 6.138 of the Guidelines are not met.
A 5% WPI rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 104.
The Panel considered a deduction for the pre-existing condition. A deduction for the pre-existing condition is considered in accordance with the methodology set out in sections 6.31 to 6.33 of the SIRA Guidelines as follows:
“The capacity of an 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’”.
The quality of information in the medical record is insufficient to determine an impairment rating for the pre-existing cervical spine condition above DRE Cervicothoracic Category I impairment, 0% WPI.
Lumbar spine
The clinical presentation at the time of the Panel assessment is consistent with a DRE Lumbosacral Spine Category III impairment rating.
The clinical findings required for a diagnosis of radiculopathy as set out in section 6.138 of the SIRA Guidelines, October 2021, page 112 are met. The relevant criteria are as follows:
· loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines);
· positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines);
· muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines);
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
· reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
In the current case, there is loss of the right ankle reflex (S1), there is a positive sciatic nerve root tension sign, there is muscle weakness in the right lower extremity (L5), there is reduced sensibility localised from appropriate spinal nerve root distribution (L5, S1).
A 10% WPI rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 102.
The Panel has also considered a deduction for the pre-existing impairment of the lumbosacral spine in accordance with the methodology set out in sections 6.31 to 6.33 of the SIRA Guidelines (see above).
The quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the lumbar spine beyond DRE Lumbosacral Spine Category I impairment.
Left shoulder
Impairment of the left shoulder is determined using range of motion methods, using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively, as set out in the table below.
Shoulder Movements Active ROM Measured
LEFT °
Upper Extremity Impairment
AMA Guides (4th Ed)
Flexion
70
7% (Fig 38, pg 43)
Extension 40 1% (Fig 38, pg 43) Abduction 90 4% (Fig 41, pg 44) Adduction 40 0% (Fig 41, pg 44) External Rotation 50 1% (Fig 44, pg 45) Internal Rotation 30 4% (Fig 44, pg 45) Total UE Impairment 17% UEI
The Panel found that there is mild constitutional stiffness in the contralateral non-injured right shoulder which attracts a 4% UEI rating using the same methodology.
The Panel considers that it is reasonable to consider and find that the range of motion on the injured side would be the same as that on the non-injured side if not for the subject accident.
The range of motion on the right side is used as a baseline for impairment of motion on the injured left side.
Subtracting 4 from 17, there is a 13% UEI rating of the left shoulder. Using Table 3, AMA 4, page 20, this converts to an 8% WPI rating.
The Panel has also considered a deduction for the pre-existing impairment of left shoulder in accordance with the methodology set out in sections 6.31 to 6.33 of the SIRA Guidelines (see above).
The quality of information in the medical files is insufficient to determine a pre-existing impairment rating for the left shoulder.
Right knee
There is a 0% WPI rating. There is no abnormal joint crepitus. Imaging does not demonstrate features of joint arthritis with joint cartilage interval narrowing as required in the Guidelines.
The range of active motion is within normal limits, measured at 0° extension to 110° flexion. There is normal stability at the knee.
A 0% WPI rating arises in accordance with the methodology set out in AMA 4, Chapter 3 and the SIRA Guidelines, sections 6.68 to 6.110.
Combined WPI rating
The impairment ratings are combined using the Combined Values Chart, AMA 4, page 322 to provide a total of 21% WPI rating as set out in the table below:
Body Part or System AMA Guides/ SIRA Guidelines References (chapter/ page/table) Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident Cervical spine AMA4 Chapter 3 pages 103, 104 YES 5% 0% 5% Lumbar spine AMA4
Chapter 3
pages 101, 102YES 10% 0% 10% Left shoulder
AMA4 Figures 38, 41, 44, AMA4,
pages 43, 44, 45
Guidelines
cls 6.51, 6.52YES 8% 0% 8% Right knee
Chapter 3, AMA 4,
pages 78, 83, 85
Guidelines
cls 6.68 to 6.110, SIRAYES 0% 0% 0% TOTAL 21%
CONCLUSION
The Panel is satisfied that the claimant has a WPI of greater than 10% as a result of the motor accident on 26 October 2017 determined as follows:
· cervical spine soft tissue injury, aggravation of mild underlying multi-level degenerative change (cervical spondylosis) - 5% WPI less 0% pre-existing impairment total WPI 5%;
· lumbar spine: aggravation of lumbar spondylosis. Lumbar radiculopathy - 10% WPI less 0% pre-existing impairment, total WPI 10%, and
· left shoulder: soft tissue injury, aggravation of underlying cuff pathology and bursitis - 8% WPI less 0% pre-existing impairment total WPI 8%.
The Panel is also satisfied that the right knee injury was caused by the motor accident and gives rise to a permanent impairment rating of 0%.
As the Panel has come to a decision that is different to Medical Assessor Murray Hyde-Page it follows that his certificate dated 26 November 2021 must be revoked.
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