Ince v AAI Limited t/as GIO
[2024] NSWPICMP 816
•3 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ince v AAI Limited t/as GIO [2024] NSWPICMP 816 |
| CLAIMANT: | Yasemin Ince |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; in May 2023 Medical Assessor (MA) Assem assessed 8% whole person impairment (WPI) (neck and right ankle) but did not assess right shoulder because it was not referred to in the application form; Claimant’s application for further assessment allowed; MA Assem assessed 2% WPI for right shoulder; claimant’s application for review of that assessment; no issue of causation raised by insurer, methodology of assessment issues concerning inconsistency and contralateral uninjured joint; Panel member re-examined claimant; diagnosis of shoulder impingement with bursitis; issue of variation between other examinations considered; no inconsistency found on examination; Panel satisfied range of motion method in Guidelines appropriate; impairment 11% UEI from which was deducted the 1% from the contralateral uninjured left shoulder; total UEI 10%; WPI of 6%; when combined with previous assessment, WPI greater than 10%; Held – certificate of MA Assem revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Assem dated 1 May 2024 and certifies that the degree of the claimant’s right shoulder impairment resulting from the injury caused by the accident is 6%. 2. Combines that 6% impairment with Medical Assessor Assem’s finding in his certificate of |
STATEMENT OF REASONS
INTRODUCTION
Yasmine Ince was involved in a motor accident on 27 April 2018. She was the seat belted driver of a car which was hit from behind and there was a secondary collision with the vehicle in front.
The claimant says she injured her neck, back, ankle and right shoulder in the accident and made a claim for statutory benefits and then damages against GIO, the third-party insurer of the vehicle that hit her. GIO has admitted liability for the claim[1].
[1] The liability notice is at page 112 of the claimant’s bundle.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and that dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 31 May 2023, Medical Assessor Assem determine the claimant had an 8% WPI on the basis of 5% for the cervical spine and 3% for the right ankle.
The claimant then lodged an application for further assessment seeking assessment of her right shoulder. On 1 May 2024 Medical Assessor Assem determined Ms Ince’s right shoulder injury resulted in a WPI of 2% which, when combined with the 8% already assessed meant the claimant’s WPI was 10% and not greater than 10%.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 1 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 2 July 2024 the President’s delegate convened this Review Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Ms Ince’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[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 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 4.12 of the MAI Act.
Dispute Resolution
Schedule 2(2)(a) of the MAI Act declares as a “medical assessment matter” a dispute about the degree of permanent impairment resulting from a motor accident.
Division 7.5 of the MAI Act provides for the assessment of medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem’s May 2023 assessment, further medical assessments such as Medical Assessor Assem’s April 2024 assessment and the review of medical assessments by this Panel[4].
[4] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Assem examined the claimant on 30 April 2024 and issued his certificate on 1 May 2024. He confirmed at [2] that he was asked to assess one injury only, that is the injury to the right shoulder. He notes at [3] he was undertaking a further assessment because he had not assessed a right shoulder injury before. He notes at [4] that the insurer concedes the claimant injured her right shoulder.
The claimant was 46 years of age and Medical Assessor Assem notes she was a disability support pensioner, and the pension was granted because Ms Ince had been diagnosed with fibromyalgia.
Ms Ince says she was stationary at traffic lights when she was hit from behind impacting the vehicle in front. She drove home after the accident but in the evening noticed bruising, experienced pins and needles on the left side of her face and developed pain in her neck, upper back and right ankle.
The claimant said she saw her doctor on 29 April 2018, was prescribed Targin and had her Cymbalta dosage was adjusted.
The Medical Assessor outlines the claimant’s treatment and details her current symptoms of pain and restriction of movement in her right shoulder.
Medical Assessor Assem put to the claimant that Dr Davis had documented a full range of motion while Dr Wallace had observed only a slight limitation. The claimant said she tried to lift her shoulders as much as possible but beyond a certain point it exacerbated the levels of her pain.
The claimant says she was taking Panadeine Forte, Lyrica, Cymbalta and Voltaren.
The claimant’s shoulder motion was measured. There was some limitation in the left (internal and external rotation) uninjured shoulder and variable loss of motion in the right shoulder. Medical Assessor Assem pointed out this inconsistency to the claimant and she said she had deteriorated in the three years since the earlier examinations.
Medical Assessor Assem accepted at [19] and [20] the right shoulder was injured in the accident and that it was a soft tissue injury causing supraspinatus tendinosis and subacromial bursitis.
When assessing impairment, he found that because of the inconsistency he could not use the range of motion method and he assessed WPI based on the analogous condition of mild crepitations in the right acromioclavicular joint.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the Medical Assessor’s determination of an analogous condition in the light of his finding that there was inconsistency on presentation to him.
The claimant says that Dr Wallace also identified inconsistency and used the contralateral uninjured shoulder in order to adjust the assessment and the claimant relied on this clause (6.51) in her submissions as did the insurer.
The claimant says the Medical Assessor did not explain why he did not apply cl 6.51 and that he denied Ms Melnichuk procedural fairness by not giving notice that he was going to apply cl 6.24 and then allowing the parties to provide submissions and an appropriate rating under tables 18 and 19.
The claimant says it was an error to use table 19 in any event because the Medical Assessor had earlier found no crepitation in the right shoulder joint, and it has never been the claimant’s case that there is shoulder joint crepitation. As table 19 is a table of impairments based on crepitations it should not have been used. The claimant says the Medical Assessor has failed to explain the analogous condition and why he chose mild and not “moderate” or “severe” crepitation if cl 6.24 did apply and joint crepitation was an analogous condition.
Insurer’s submissions
The insurer says at [4.1] that after testing the claimant’s right shoulder motion three times the Medical Assessor found there was inconsistency. The Medical Assessor therefore found, as recorded at [4.2] that, in accordance with cl 6.50(d) range of motion could not be used as a method of shoulder impairment assessment. He then in accordance with cl 6.50(e) used his discretion in considering evidence as to impairment and pursuant to cl 6.24 found an analogous condition.
The insurer disputes that its submissions supported the application of cl 6.51 noting that the whole of the submission said that “if … the use of a goniometer is clinically indicated” and that this was dependent on range of motion being an appropriate method of assessment.
The insurer says at [4.11] that if range of motion is found to be inconsistent, cl 6.51 cannot be applied as there must be a determined range of motion in both joints.
The insurer also says at [4.14] that the Medical Assessor was not saying the claimant had crepitation but that an analogous condition would be one producing crepitation in the right acromioclavicular joint.
The Panel notes the insurer’s concession at [1.4] of the submissions in reply to the application for further assessment that the claimant did injure her right shoulder in the accident. In those submissions the insurer referred to the claimant’s medico-legal expert Dr Davis who found on 9 March 2021 the claimant had a full range of motion in the shoulders and Dr Wallace who on 13 December 2021 found reduced range of motion in the left shoulder and found 2% impairment in the right.
Procedural matters
The Panel issues directions to the parties on 4 July 2024. The Panel noted it did not have the documents that were before Medical Assessor Assem and requested a bundle of documents from the claimant before 26 July 2024 and a bundle from the insurer by 13 August 2024.
The claimant provided her bundle on 26 July 2024 comprising 550 pages and the insurer on 30 July 2024 comprising 55 pages.
The Panel met on 2 September 2024 and reported to the parties the next day as follows:
(a) the Panel noted Medical Assessor Assem’s first assessment related to cervical spine and right lower limb injuries and that assessment has not been reviewed;
(b) the further assessment undertaken by Medical Assessor Assem concerns the claimant’s right shoulder;
(c) the Panel is proceeding on the basis it is reviewing only the right shoulder further assessment of Medical Assessor Assem, and
(d) the Panel will need to combine the 8% from the first assessment with any impairment resulting from our assessment.
The Panel noted the insurer conceded some form of injury to the right shoulder.
The Panel invited responses and informed the parties of the re-examination date.
On 18 September 2024 the Panel was advised the claimant had travelled to Turkey “due to a separate medical issue” and was unable to attend the appointment. The re-examination was rescheduled to 14 November 2024 and the parties were advised.
REVIEW OF THE EVIDENCE
Ms Ince has filed a bundle of over 550 pages. Many of the documents relate to matters not relevant to the issues the Panel has to decide. For example, there are submissions as to non-economic loss and a schedule of damages, liability letters and correspondence concerning particulars. In addition, there are a number of documents relevant to the claimant’s psychological injury.
While the Panel has reviewed all the documents, the Panel will only be referring in detail to those documents relevant to the matters we have to decide.
Claim form and claim documents
Ms Ince’s claim form was dated 11 July 2018[6]. She says the vehicle behind her tried to merge into the right lane but hit her vehicle pushing it forward. She says she sustained injuries to her neck, right shoulder, back, right ankle and “psychological injuries.” She denied any previous illnesses or injuries.
[6] Page 88 of the claimant’s bundle.
Dr Oner signed the medical certificate on 21 May 2018. He says the claimant had a neck injury, right shoulder injury, upper – lower back injury and right ankle injury and had developed psychological injuries.
Treating records and reports
The claimant has provided copies of the clinical records of City West Medical Centre. These comprise more than 350 pages with multiple copies of some documents and none of the documents in any logical order. There are no clinical notes documenting actual attendances at the medical practice. Only documents (test results, specialist reports and radiological reports) have been provided. The following summaries are taken from these documents.
(a)
Dr Dinc, chiropractor provided one-line reports dated 16 March 2016,
17 January 2017, 10 April 2017, 9 June 2017 and 28 March 2018 which confirm the claimant was having manual and physical therapy before the accident. The letters do not indicate which parts of the body were being treated;
(b)
Centrelink medical certificates dating back to 14 May 2013 have been completed by Dr Habiboglu. Conditions included on those certificates before the accident include depression, neck pain with headaches, abdominal surgery, pain in both hips and joints, chronic diarrhoea and migraine. In a certificate dated
17 April 2014 Dr Habiboglu refers to chronic neck and back pain;
(c) on 21 March 2019 Dr Habiboglu wrote to Centrelink[7] referring to the claimant’s morbid obesity, surgery and chronic diarrhoea; an uterovaginal prolapse causing urinary stress incontinence; her long history of chronic psychological issues, rheumatism, severe migraine headaches, lower back, neck, elbow and ankle pains. The Panel notes there is no mention of right shoulder pain or problems in this list;
(d) Multiple referrals were provided before the accident including to Dr Dowla, neurologist, on 9 June 2013 for recurrent headache and neck pain and again on 4 June 2014 for migraines. On 27 February 2018 the claimant was referred to Dr Portek, rheumatologist, for multiple joint pains and again on 5 March 2018, and
(e) There are many Kessler Psychological distress scale (K10) tests with results of between 26 (April 2010) and 37 (March 2012) and then generally in the late 20’s and early 30’s (up to June 2020) indicating the claimant was likely to have a moderate or severe psychological disorder.
[7] Pae 277 of the claimant’s bundle.
On 27 August 2014, Dr Dowla, neurologist, wrote to Dr Habiboglou about the claimant’s intermittent headache and left sided neck pain. Ms Ince reported symptoms for 20 years and these headaches lasted two to three days and could involve nausea, vomiting and photophobia. She also complained of vague dizziness and numbness in her face associated with headache and dizziness. He found normal nerve function but advised adjustments to her medications. On 4 December 2014 Dr Dowla reported that the claimant’s headaches had continued despite her medication and noted these tended to be “triggered by family problem and stress.” He adjusted her medication and suggested she see a social worker, psychologist and psychiatrist.
Dr Portek wrote to Dr Habiboglou both before and after the accident:
(a) on 8 March 2018 – he has a history of the claimant developing generalised aches and pains when she developed depression four years earlier. He noted the bone scan and takes a history of Ms Ince’s gastric sleeve surgery, weight gain, iron deficiency, gall bladder surgery complicated with diarrhoea. The claimant reported seeing a chiropractor (with little benefit) and was taking Panadol Osteo. There were no neurological signs in the lower limbs with tender trigger spots consistent with soft tissue rheumatism. He advised referral to a physiotherapist for stretching and strengthening exercises;
(b) on 30 May 2018 he said he had instructed the claimant to do abdominal bracing and flexion exercises;
(c) on 25 September 2018 he noted the Cymbalta medication had been of some benefit but the claimant had continued lower back pain and had continued to put on weight;
(d) on 24 October 2018 he noted the apophyseal joint injection in early October had been unsuccessful and she was having physiotherapy. She was advised to lose 15 – 20 kilos and he recommended referral to a dietician, and
(e) on 21 February 2019 the claimant reported having five weeks in Turkey and neural therapy while there. The claimant was taking Targin. He thought she required simple analgesics and had time to pursue physical therapy. He recommended an intensive physical therapy and weight reduction regime.
The Panel notes that Dr Portek does not refer to the motor accident in any of his reports.
After the car accident, Dr Oner referred the claimant for chiropractic treatment for cervical symptoms with whiplash, “referral to right shoulder” as well as lumbar sprain and right ankle sprain. Dr Dinc completed an Allied Health Recovery Request (AHRR) dated 27 June 2018 noting five treatments had already been provided and seeking up to 16 further sessions.
Dr Dinc completed a further AHRR on 10 September 2018 noting 14 sessions had been provided to date and seeking eight further sessions. The same injuries were the subject of this form.
Centrelink records have been provided with a list of medical certificate information.[8] On 27 February 2018, Dr Habiboglu was said to have issued a certificate nominating three conditions the third of which is bursitis, capsulitis and tendonitis. On 31 May 2018 the certificate included chronic pain, migraine and bursitis, capsulitis and tendonitis.
Radiology
[8] Page 521 of the claimant’s bundle.
Pre-accident
On 27 October 2015 the claimant had a full spine X-ray due to a history of “Chronic neck pain with bilateral hip pain”. There were no fractures reported, disc height was preserved but there was facet joint degeneration at T11 and L3 and mild facet joint at C4 and T4.
Bone scans
On 1 February 2018 the claimant undertook a bone scan the report of which noted mild degenerative arthritis within both wrists and in the fingers of both hands as well as in the hips and both feet, bilateral plantar fasciitis and bilateral sacroiliitis.
A further bone scan of 12 May 2020 reported:
(a) minor bilateral trochanteric bursitis and mild degenerative arthritis in both hips;
(b) mild degenerative arthritis within both wrists, multiple fingers both hands, acromioclavicular joints, sacroiliac joints, ankles and first TMT joints;
(c) no active inflammatory arthritis, and
(d) minor left planer fasciitis.
Post-accident
A CT scan of the cervical spine on 8 May 2018 found no evidence of a fracture but mild spinal stenosis at C3-4. The CT scan of the lumbar spine from the same day reports “essentially normal unenhanced CT scan of the lumbar spine”. There was no fracture no evidence of the herniation of any disc and no epidural haematoma to suggest an acute injury.
An ultrasound dated 11 May 2018 found normal biceps, subscapularis, infraspinatus and teres minor tendons but some tendinosis and no tear in the supraspinatus tendon and evidence of bursitis. An ultrasound suggested tendinosis in the right common extensor tendon at the right elbow.
On 2 October 2018 the claimant had a CT guided facet joint injection in the left side of L5.
An MRI of the brain done on 29 May 2019 was reported as normal.
On 30 January 2020 the claimant had an ultrasound guided injection into the left trochanteric bursa due to bilateral hip pain. On 4 February 2020, Ms Ince had the right trochanteric bursa also injected.
Medico-legal reports
Dr Rastogi, psychiatrist, provided a report to the claimant’s solicitor dated 21 July 2020. It is not clear precisely what documents Dr Rastogi had as only two (the decisions of Medical Assessors Cameron and Reutens) are referred to.
Dr Rastogi has an incorrect history of the claimant being in receipt of a disability support pension since August 2019 and she cites the wrong date of the accident at page 2. Dr Rastogi has a history of a rear end collision and the claimant’s car hitting the car in front but that no airbags deployed. She says Ms Ince’s rear window was smashed.
She has a history of investigations and treatment for pins and needles on the left side of her face, ongoing neck, lower back, right ankle and shoulder pain.
Dr Rastogi has a history of depression over the years for which she has been treated. The claimant refused to provide details of the emergence of her depression. Dr Rastogi also had a history of the claimant’s pre-accident medical issues and refers to hr leading a reclusive lifestyle.
Dr Rastogi diagnosed post-traumatic stress disorder caused by the accident and with a poor prognosis. She noted no vocational capacity before the accident.
Dr Rastogi diagnosed the claimant with a current 17% WPI and a pre-accident WPI of 5% to arrive at an accident related impairment of 12%.
Dr Davis, occupational physician, provided a report to the claimant’s solicitor dated
9 March 2021. He too had the medical assessments of Medical Assessor Cameron and Reutens plus the report of Dr Rastogi, the Centrelink file and Dr Oner’s clinical notes. He has a history of the fibromyalgia, depression, migraine, gastro-intestinal symptoms and neck pain before the accident.
Dr Davis has a history of an impact at 80 kms with “significant spinal jarring”. Dr Davis reports constant neck pain at a high level since the accident, pain between the shoulders, right shoulder pain and reduced range of motion. He has no history of right ankle pain or symptoms.
There was asymmetry of motion in the neck, thoracic spine. There was a full range of shoulder motion and no neurological findings in the upper limb. There was a full range of hip and knee motion, some loss of movement in the right ankle and no lower limb neurological findings.
He diagnosed “mechanical trauma” to the cervical and thoracic spine and soft tissue injury to the right ankle. He did not diagnose a shoulder injury.
His prognosis was that with increasing degenerative changes her pain and impairment would increase.
Dr Davis assessed WPI at 5% for the cervical spine (less one tenth for pre-existing impairment), 5% for the thoracic spine and 2% for calf wasting and 3% for right ankle extension to arrive at 15% WPI.
Dr Wallace wrote a report dated 13 December 2021 after examining the claimant on 7 December 2021.
He notes the claimant came to Australia from Turkey in 1996 and received the Newstart Allowance then a Disability Pension in 2018 due to fibromyalgia.
He notes the date of the accident was 27 April 2018 and that the claimant was stopped at a red traffic light and was hit from the rear by a car that did not stop, and her car was pushed into the vehicle in front.
Ms Ince said she experienced pain in her neck, right shoulder and right ankle and saw her doctor two days later and was referred for physiotherapy and chiropractic treatment. She had a number of injections in the right shoulder an, right elbow, facet joints and left hip.
The claimant had been seeing Dr Portek, rheumatologist, for some years and had seen a chiropractor since 2014 and had been investigated before the accident for neck and hip pain.
Ms Ince complained of neck pain radiating to the right shoulder and she complained of weakness in the right arm and stiffness in her cervical spine. The claimant complained of lower back pain radiating to the paralumbar region. She had aching in the right ankle.
There was restriction of motion in the neck but no neurological findings. Her shoulder motion was restricted the right more so than the left. There was some limitation of lower back movement but normal neurological examination of the lower limbs. There was a good range of motion of both ankles.
Dr Wallace diagnosed a musculoligamentous strain to the neck and lower back, a rotator cuff strain to the right shoulder and ligamentous strain to the right ankles.
He found 5% for a neck impairment, 2% for right shoulder impairment and no impairment to the ankle or lumbar spine.
Other assessments
Medical Assessor Cameron examined the claimant on 17 January 2020 and issued his certificate and reasons on 27 January 2020.
He was asked to resolve a dispute about whether the claimant had minor injuries (now termed threshold injuries). He was asked to assess injuries to the cervical spine, thoracic spine, lumbar spine, right ankle and the right shoulder.
Medical Assessor Cameron notes the claimant’s pre-accident history and her current symptoms of neck and back pain with pain at the right shoulder and right ankle. She reported a steroid injection to the right shoulder had not helped.
He examined the claimant, recorded her shoulder motion and reports inconsistency which the claimant explained was due to pain.
He found all injuries were minor.
Medical Assessor Reutens issued a certificate on 17 March 2020 in relation to her assessment of the claimant’s psychological injuries. She diagnosed the exacerbation of a pre-existing persistent depressive disorder and anxious distress which was not a minor (now threshold) injury. The claimant referred to her pre-accident conditions including previous depression having seen a psychologist for many years. The claimant reported to the Medical Assessor immediate pain in her right shoulder, seatbelt area bruising, right ankle pain and pins and needles on the left side of her face. The claimant also reported neck and back pain.
Medical Assessor Barrett issued a certificate on 14 February 2022 as to the whole person impairment resulting from the claimant’s psychiatric injuries. She diagnosed a specific phobia car travel and assessed a 2% WPI. She also expressed the view that the exacerbation of the persistent depressive disorder has resolved.
Medical Assessor Assem’s original assessment occurred on 31 May 2023. He did not examine or assess the claimant’s right shoulder because it was not included in the documentation and therefore in his view not referred for assessment. He assessed 5% for the neck due to the presence of consistent asymmetry of movement (dysmetria) hence a DRE II impairment. In the thoracic spine there was no impairment due to normal movement, an absence of guarding, non-verifiable radicular symptoms or radiculopathy. The right ankle was assessed at 3% due to a restriction of motion.
RE-EXAMINATION FINDINGS
Medical Assessor Couch examined the claimant on behalf of the Panel on
14 November 2024 in the Commission’s medical suites. The Medical Assessor’s re-examination findings are reproduced below.
General remarks
Ms Ince was assessed over a period of one hour in the presence of a Turkish interpreter.
Ms Ince appeared to understand most things well and spontaneously answered in English at times. She did however use the interpreter for more complicated questions and responses.
Relevant Past Medical History and Social History
Ms Ince said that she emigrated to Australia in 1996 at the age of 17 years, having previously lived in Istanbul. She came with her brother and sister – her brother remains in Australia but her sister has returned to Turkey. She still has her mother living in a different city in Turkey.
Soon after arriving in Australia, she married a Turkish Australian. They had two sons, now aged 27 and 17 years and eventually separated in 2015. She currently lives with her two sons in a rented house in Auburn. Her older son works as an NBN technician. He is about to get married and will move out. Ms Ince plans soon to move to a two-bedroom unit in Guildford. Her 17-year-old son is about to leave school.
Ms Ince said that she was mainly a housewife while she was married. Her husband worked in a kebab shop. She was asked about the fact that she had commenced receiving the Centrelink Disability Support Pension (DSP) before the subject accident. She said this was because of a combination of problems, including depression, soft tissue rheumatism, fibromyalgia, chronic diarrhoea and migraine.
She indicated that she put these problems down to previous trauma but said this was not the result of marital problems or her marital breakdown, stating that she already had “other problems prior to the separation in 2015”. She also said that she tried attending English as a second language classes in about 2002 but never entered paid employment. She confirmed that she had previously attended Dr Portek, rheumatologist, for her fibromyalgia, but when asked, said that he had never treated her for any shoulder problems.
Before the accident, she described pain in the right hand. She mentioned carpal tunnel syndrome and also a right elbow condition. With regard to her neck, she reported “pain due to migraines – but after the accident it got really worse”. Among other aches and pains, she mentioned greater trochanteric bursitis treated with injections.
History of Accident and Subsequent Injuries and Treatment
Ms Ince confirmed the details of a rear-end crash on 27 April 2018. She was heading west on the Great Western Highway in Wentworthville and was stationary at traffic lights at the major intersection with Cumberland Highway. She was driving an older Subaru, which she thought was an Outback, although she could not remember the year it was made. She was wearing a seatbelt. Her older son was in the front seat passenger and her younger son was in the rear seat. She was in one of the right-hand lanes with cars in front of her. Another car apparently tried to suddenly change lanes to a right-turning lane but hit the rear of her car – mainly towards the right side. Ms Ince said that the driver of the other car was also Turkish and they were both going to the same funeral. She could not recall details of his car.
Ms Ince did not have any warning of the impending impact and did not know the exact speed of the other vehicle. She recalled a sudden crash and that she and her two sons were showered with glass from the shattered rear window of her car. Airbags did not activate. She recalled the damage to the car was to the rear and also the rear right corner/side. Her car was pushed into a car ahead but mainly received damage to the rear.
Ms Ince was asked what her immediate recollections were. She replied that she did not hear anything and that: “I was in shock”. She thought that her head had moved backwards and forwards and stated that the seatbelt had locked, stating” “that’s why I hurt my shoulder”. She recalled that she initially did not understand what was going on.
Police and ambulance attended. Her sons apparently were not significantly injured, although her younger son in the rear was upset. She recalled being assessed by ambulance officers (including examination) and was given some painkillers. She was apparently told to consult her doctor if symptoms became worse. She said that police allowed her to drive the 15 minutes to her home, but her car was deemed to be non-repairable. She explained that she did not have comprehensive insurance, and the other driver apparently did not have third party damage insurance and would not pay for any work on her car.
Ms Ince attended her usual family doctor, Dr Habiboglu, two days later. She recalled having bruising over the front of the right shoulder and across the chest from the seatbelt. She recalled having pain in the neck, right shoulder and right ankle in the first few days – she thought that she had probably hurt her ankle from pressure on the brake pedal.
Treatment for her painful right shoulder had included two injections – she said that these helped for a couple of weeks. She also mentioned other treatments which had not been helpful, including some injections around the right shoulder during a recent visit to Turkey.
Ms Ince also said that she had received physiotherapy, but this was limited – she explained that although five sessions over a certain period could be funded on GP referral from Medicare, after that she could not afford to pay for them. The physiotherapist had given her exercises and she continues to do exercises using a blue TheraBand – she said that she tried to do these every day. The physiotherapist has also applied “sports tape” over the right shoulder with temporary benefit, and there has also been some cupping.
Ms Ince was asked if she had been referred to any specialists in regard to her right shoulder and she said she had not. When asked about Dr Portek, rheumatologist, she replied “I’ve seen that doctor but not for my shoulder”.
Ms Ince denied any further accidents. She denied any symptoms in her left shoulder.
Current Symptoms
Ms Ince stated that her right shoulder had never returned to normal since the accident in 2018. She described pain over the right shoulder cowl – indicating with her left hand. She said that pain is mainly felt anteriorly, with no pain at the back of the shoulder. She is never completely pain-free but pain increases with activities – “like cooking… “.
She described elevating the right upper limb as the worst movement, flexing the left shoulder to demonstrate this. She cannot lie on her right side in bed and sleeps on her left side. She was asked if she ever rolls over onto her right side in her sleep and she said that she did not. (She said that she normally wakes a lot in the night because of various aches and pains).
Ms Ince added that she cannot push up with her right hand when getting out of bed and has to use her left. She cannot fasten her bra behind her back she has to fasten it at the front and, in fact, says that usually she does not wear a bra when at home.
Present Activities
As noted above, Ms Ince currently lives with her two sons in a house but plans to move to a smaller unit once her 27-year-old son leaves soon to get married. She described pain in the shoulder and difficulty preparing food in the kitchen. She was asked how she reached things on higher shelves/cupboards in the kitchen – she said that she keeps the things that she used frequently at a fairly low level and would call her son to reach for anything up high.
Ms Ince does drive a car. She was asked how she coped with car park entry and exit ticket machines. She said that she has to get very close to make it easier to reach with her right hand and that “sometimes if it’s far away I open the door and get out”. At home she does not vacuum or hang up the washing and her sons do this for her.
At this stage of the interview, she volunteered, “some doctors made me feel that I was wanting money – I was not working and expecting money … it’s not about you, but it upset me”.
Physical Examination
Ms Ince attended the examination promptly. She was wearing slacks, a short-sleeved top, bra and flat sneakers. She wore spectacles. She presented as a reasonably cheerful, co-operative, moderately obese middle-aged woman at a height of 163 cm and a weight of 100 kg (BMI 37).
She gave a clear history in a straightforward manner. She appeared to answer questions directly and specifically. There was no suggestion of exaggeration or dramatisation of her symptoms. She was fully co-operative through the examination. I encouraged her to do her best when moving her shoulders but said that she should not do anything that caused pain and that she should advise me if she experienced pain. Although it was clear she was in pain at the limits of right shoulder active range of movement, there was no suggestion of abnormal pain behaviours, inconsistency or self-limitation.
Posture and gait were generally within normal limits. Formal examination was restricted to the upper limbs. Because it was relevant to the shoulders, the trapezius muscles were palpated – they were slightly tender to palpation, more so on the right than the left, but there was no apparent guarding or spasm, which might secondarily restrict shoulder active range of motion.
In order to carefully palpate the trapezius and periscapular muscles, Ms Ince was asked to lie prone on the examination couch without a pillow. It was suggested that she elevate her arms and rest her forehead on her hands – she was noted to elevate the left upper limb fully but the right only to the range demonstrated later on formal examination. Also, when she climbed off the examination couch again, she was noted to carefully push herself up using the left hand only. This informal observation correlated to the restriction of movement demonstrated during formal range of motion testing.
Upper limbs
Ms Ince said that she is right-handed. Both upper arms measured 39 cm in girth, the right forearm 28 cm and the left 27.5 cm. The hands were clean and soft without calluses, consistent with the fairly limited physical activity which she described. Both upper limbs were neurologically normal, with intact and symmetrical tendon reflexes and normal sensation.
Power of all movements in the left shoulder was normal (5/5). In the right shoulder there was moderate weakness of abduction and external rotation (4/5) likely limited by the pain complained of by Ms Ince. There was no crepitus on movement palpable in either shoulder.
There was no detectable muscle wasting around either shoulder girdle. The left shoulder was not tender at all. She reported moderate tenderness to palpation over both the anterior and lateral aspects of the right glenohumeral joint.
I explained and demonstrated all movements to Ms Ince first and encouraged her to make a maximum effort. Active range of motion was carefully measured with a goniometer with repetition three times. While there was minor variation (of 10 degrees or less) on some movements, this was not clinically significant. I was satisfied that the best range of motion achievable by Ms Ince was as follows:
Shoulder Movement
Active range RIGHT
Active range LEFT
Flexion
100
170
Extension
30
50
Adduction
30
50
Abduction
100
170
Internal Rotation
80
80
External Rotation
90
90
Impingement signs were negative on the left but positive on the right.
There was an almost full, painless range of motion in the left shoulder (except that flexion was minimally less than full at 170 degrees – probably consistent with her body habitus).
There was consistent marked, painful restriction of active range of motion in the right shoulder. This restricted motion was convincingly painful – on the third repetition of right shoulder flexion (after previous attempts at 90 and 100 degrees) for example she grimaced but achieved 100 degrees. On the third repetition of right shoulder abduction when she reached a slightly better movement of 100 degrees (than two previous attempts at 90 degrees), she was in obvious pain and said: “sorry”. With all movements she appeared genuinely trying to achieve the best range of motion.
CONSIDERATION OF THE ISSUES BY THE PANEL
Causation
The insurer has not challenged Medical Assessor’s finding on causation of the right shoulder injury and has conceded the claimant sustained some form of injury to the right shoulder.
The Panel considers this an appropriate concession. The claimant’s right shoulder was investigated with an ultrasound on 11 May 2018 and Dr Oner’s medical certificate dated
21 May 2018, less than a month after the accident diagnosed a right shoulder injury and the claimant included a right shoulder injury in the claim form.Ms Ince described a significant rear-end crash in her older Subaru station wagon. The tailgate window was apparently broken with glass thrown over the occupants. Her car was subsequently not repairable. She described seatbelt bruising over the right shoulder.
The Panel is satisfied that this mechanism of injury could have caused a right shoulder injury and that the claimant did sustain an injury to her right shoulder in the accident due to the forces likely to be involved, the seat belt passed over her right shoulder and in particular the relatively contemporaneous complaints of right shoulder pain.
The claimant did have a pre-accident diagnosis of fibromyalgia and other arthritic or rheumatic conditions however the Panel has carefully considered the pre-accident records and cannot find any reference to right shoulder complaints before the accident. The Panel notes in particular, that a body scan undertaken in February 2018 did not report any signs of arthritis in the shoulder joints. A body scan in May 2020 did however report degenerative changes in the acromioclavicular joints which were now active.
Diagnosis
Examination showed consistent marked painful restriction of active range of motion with positive impingement signs. The May 2018 ultrasound indicated shoulder impingement with tendinosis and thickening of the subacromial bursa which suggested bursitis.
There is no updated radiology or updated treatment records to suggest any alternative diagnosis and it is the clinical judgment of the Medical Assessors that the appropriate diagnosis is of shoulder impingement with bursitis.
Shoulder impairment assessment principles
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The usual method of assessing shoulder impairment is in accordance with part 3.1d, the range of motion method. This method requires the measurement of six units of motion as follows:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA4.
The Guidelines notes the potential for difficulties with the range of motion method and says:
6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a) a goniometer should be used where clinically indicated
(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
When assessing impairment to an injured joint (such as the right shoulder), the other joint (the left shoulder) must also be considered. This is on the basis that both joints are likely to have the same range of motion and the current state of the injured joint but for the accident would be the same as the uninjured joint.
The use of the contralateral (and uninjured) joint is explained in the Guidelines as extracted below:
“6.51 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline, and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.
6.52 When using clause 6.51 (above), the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI...”
Is there inconsistency in shoulder motion?
The claimant’s range of motion has clearly varied in the six years since the accident as can be seen from attachment A to these reasons.
Medical Assessor Cameron found in January 2020 the claimant was inconsistent in her shoulder motion. The Panel notes he does not include in his decision the individual measurements (assuming three measurements were taken) or explain further what was inconsistent and how, but his range of recorded motion in the right shoulder is not too different from that of the Panel. His identical range of motion measurements for the left shoulder raise doubts for the Panel as to the accuracy of those measurements.
Dr Wallace for the insurer in December 2021 says in answer to question 9 posed to him that “her current condition is consistent with the alleged injury.” He does not offer any other comment or suggest that there was any inconsistency in the range of motion measured in the right shoulder. His measurements show a slightly greater range of motion than the Panel’s in the right shoulder and a slightly worse restriction in the left.
Medical Assessor Assem found inconsistency on the basis of a greater variation of right shoulder motion, and he obtained better range in flexion and abduction on the third attempt in those units of movement.
Ms Ince told Medical Assessor Couch that her shoulder has never been normal since the date of the accident. Dr Davis’ record of no restriction of movement in March 2021 (and restriction in both shoulders) cannot be reconciled in the clinical judgment of the Medical Assessors with this history from the claimant and the measurements recorded by other examiners all of whom, along with Medical Assessor Couch have found a restriction of movement in the right shoulder. The Panel gives little weight to Dr Davis’ report and has doubts about the accuracy of his clinical findings.
The variation between the examinations can be explained by the passage of time, Ms Ince’s fluctuating pain levels and greater treatment being provided at some times and not others. In the clinical judgment of the Medical Assessors this variation can also be accounted for depending on her level of activity in and around the home and the state of her fibromyalgia and the pain she is feeling in her body and other joints at the time as a result of that condition.
Medical Assessor Couch, on notice of the past variations and findings of inconsistency by other examiners measured the active range of motion three times in both shoulder joints. Medical Assessor Couch formed the view that the claimant was trying her best and that there was no inconsistency within the examination.
The Panel is satisfied that the claimant’s presentation at the re-examination with Medical Assessor Couch is consistent with the radiology and the diagnosis of shoulder impingement with bursitis.
The Panel is therefore satisfied that the range of motion method is an acceptable method of assessment.
The claimant’s loss of range of motion in the right shoulder produces an upper extremity impairment of 11% as follows.
Shoulder Motion
Normal
Active range RIGHT
Active range LEFT
Flexion
180
100 - 5% UEI
170 - 1% UEI
Extension
50
30 - 1% UEI
50 - Normal
Abduction
180
100 - 4% UEI
170 - 0% UEI
Adduction
50
30 - 1% UEI
50- Normal
Internal Rotation
90
80 - 0% UEI
80 - 0% UEI
External Rotation
90
90 - 0% UEI
90 - Normal
Total UEI
11% UEI
1% UEI
Should the contralateral uninjured shoulder be considered?
As the claimant has denied any injury to her left shoulder then her left shoulder should be considered a contralateral uninjured joint and its impairment rating should be taken into account in accordance with cl 6.51. The claimant is overweight, with arthritic changes reported in both joints in a bone scan in May 2020. It is reasonable to proceed on the basis that but for this accident the claimant’s right injured shoulder would have an impairment the same as, or similar to that in the left shoulder.
The claimant therefore has a total upper extremity impairment of right shoulder motion assessed at 10% based on the 11% assessed and less the impairment of the uninjured joint (1%). Using Table 3 from the AMA 4 Guides, this translates to a 6% WPI.
CONCLUSION
The Panel has found a 6% WPI for the claimant’s right shoulder injury. The Panel has come to a different conclusion to Medical Assessor Assem and must therefore revoke his certificate of 1 May 2024.
The 6% shoulder impairment must be combined with the 8% found by Medical Assessor Assem in 31 May 2023 for her other injuries in accordance with the Combined Values Chart on page 322 of AMA 4. This produced a final WPI of 14%.
ATTACHMENT A - COMPARATIVE SHOULDERS
| RIGHT Shoulder | MA Cameron 17 Jan 20[9] | Dr Davis 9 Mar 21[10] | Dr Wallace 13 Dec 21 | MA Assem 30 Apr 24 | Review Panel 14 Nov 24 |
| Flexion | 120 | 180 | 140 | 90, 125, 140 | 90, 100, 100 |
| Extension | 40 | 50 | 30 | 30 | 30, 20, 30 |
| Abduction | 120 | 180 | 140 | 90, 125, 125 | 90, 90, 100 |
| Adduction | 30 | 50 | 30 | 30, 10, 20 | 30 |
| Internal rotation | 70 | 90 | 80 | 80, 80, 20 | 80, 70, 80 |
| External rotation | 70 | 90 | 60 | 40, 60, 60 | 90, 80, 90 |
| UEI | 10% | 0% | 7% | 8%[11] | 11%[12] |
| LEFT Shoulder | MA Cameron 17 Jan 20 | Dr Davis 9 Mar 21 | Dr Wallace 13 Dec 21 | MA Assem 30 Apr 24 | Review Panel 14 Nov 24 |
| Flexion | 120 | 180 | 160 | 180 | 170 |
| Extension | 40 | 50 | 40 | 50 | 50 |
| Abduction | 120 | 180 | 170 | 180 | 60 |
| Adduction | 30 | 50 | 30 | 50 | 170 |
| Internal rotation | 70 | 90 | 80 | 80 | 80 |
| External rotation | 70 | 90 | 60 | 60 | 100 |
| UEI | 10% | 0% | 3% | 0% | 1% |
[9] Medical Assessor Cameron does not specify that a goniometer was used and refers to “observed” movements. He says there was inconsistency but does not record three measurements.
[10] Dr Davis does not record these measurements but says “there was a full range of movement demonstrated bilaterally.
[11] UEI calculated using the best range of motion achieved.
[12] UEI calculated using the best range of motion achieved
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