Insurance Australia Limited t/as NRMA Insurance Rima
[2022] NSWPICMP 409
•19 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance Rima [2022] NSWPICMP 409 |
| CLAIMANT: | Ali Rima |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Dr Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| DATE OF DECISION: | 19 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the 1999 Act; original Medical Assessor (Home) had assessed WPI at 12% due to injuries to shoulders (4% plus 4%) and knees (2% plus 2%); other injuries to be considered included cervical, thoracic and lumbar spine; issues concerning shoulder included the nature of the injury and the cause of any impairment and the cause of any knee impairment noting a delay in complaint and a constitutional maltracking patella; Held – neck and back assessed at diagnosis related estimate (DRE) I; shoulder impairment caused by inactivity and stiffness related to original neck injury; soft tissue injury to knees in the accident but any current issues five years post-accident due to constitutional issue and work and lifestyle matters. |
| DETERMINATIONS MADE: | The Review Panel: 1. Revokes the certificate of Medical Assessor Home dated 6 January 2022. 2. Certifies that the degree of Mr Rima’s permanent impairment resulting from the injuries caused by the motor accident on 22 August 2017 is not greater than 10%. |
STATEMENT OF REASONS
introduction
Mr Ali Rima (the claimant) was involved in a rear end collision on 22 August 2017. Police and ambulance did not attend, although Mr Rima’s car was towed from the scene and later written off.
Mr Rima made a claim for compensation against NRMA, the third-party insurer of the vehicle that ran into his vehicle.
A medical dispute has arisen in the claim as to whether Mr Rima is entitled to damages for non-economic loss and that dispute was referred to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) for assessment. Medical Assessor Harvey-Sutton assessed the claimant’s whole person impairment (WPI) at 11% on 13 December 2019 thereby entitling him to non-economic loss damages.
The insurer was disappointed with that result and applied for a further assessment of the claimant’s WPI. Due to the abolition of DRS, that assessment was dealt with by the Personal Injury Commission (the Commission) and the assessment was referred to Medical Assessor Home who, on 6 January 2022 assessed Mr Rima’s WPI at 12%.
The insurer was disappointed with that result and lodged an application for review with the Commission.
A delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Medical Assessor Home’s assessment and the President has convened this Panel.
Legislative Framework AND Case Law
Mr Rima’s accident occurred before 1 December 2017 therefore his claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are restricted by the provisions in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as at October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Medical Assessor Harvey-Sutton’s, further medical assessments such as Medical Assessor Home’s and the Review of medical assessments by this Review Panel[3] (the Panel).
[3] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Spine impairment assessment
Clause 1.111 of the Guidelines provides that the diagnosis-related estimate (DRE) method provided for in s 3.3 of the AMA 4 Guides is to be used when evaluating spinal impairment. The spine is divided into three regions (cervicothoracic, thoracolumbar and lumbosacral). Each injured region is assessed separately and the WPI for each combined.
A summary of the first three (and most common) DRE categories is provided at Table 7 in the Guidelines as follows:
(a) DRE I – back or neck pain or symptoms;
(b) DRE II – back or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion deficits (dysmetria), and
(c) DRE III – back or neck pain with radiculopathy.
Definitions of guarding, non-verifiable radicular complaint and dysmetria are found in Table 8 in the Guidelines.
According to cl 1.138 of the Guidelines, radiculopathy requires two or more of the following signs:
(a) loss or asymmetry of reflexes (see Table 8);
(b) positive sciatic nerve root tension signs (see Table 8);
(c) muscle atrophy and/or decreased limb circumference (see Table 8);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Shoulder impairment
Clause 1.50 of the Guidelines provides for the range of motion method of assessment as follows:
“1.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2 Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.
1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
1.50.4If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5If 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.”
There are six planes of motion – flexion, extension, abduction, adduction, internal and external rotation. The restriction of motion in each plane is measured and any loss of motion calculated as an upper extremity impairment UEI) and then the total converted to a WPI.
Lower limb impairment assessment
There are 13 methods of assessing impairment of the legs in the AMA 4 Guides and cl 1.69 provides that “In general, the method that most specifically addresses the impairment should be used”.
Causation
Clauses 1.5-1.7 of the Guidelines provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Assessment under Review
Medical Assessor Home saw the claimant on 21 December 2021 and issued his reasons on 6 January 2022. He was asked to assess the following injuries:
(a) cervical, thoracic and lumbar spine;
(b) right and left shoulder, and
(c) right and left knee.
Medical Assessor Home summarised the submissions and noted that he had considered the documents including the surveillance footage.
Medical Assessor Home took the following history:
(a) Mr Rima has no past medical history of relevance;
(b) the claimant worked as a panel beater starting up his own company which he closed a month after the accident. He now works for a firm undertaking minor smash repairs;
(c) his vehicle was struck from behind and he recalls hearing a bang and feeling a jolt. He further recalls being thrown back and forth in his seat and his knee striking the dashboard;
(d) he says felt immediate pain in both knees with later onset of neck and back pain and pain across the shoulder;
(e) “A few days later he attended Dr Cywinski in Australind with persisting pain in his neck, mid back, lower back and both knees. He also had pain from his neck into the shoulders”, and
(f) Mr Rima had physiotherapy for eight months, X-rays and MRI scans, analgesia and saw specialists, Dr Ireland (knees), Dr Hanna (neck and upper back), Dr Katzen (vertigo and tinnitus). Mr Rima says he is using anti-depressants and seeing a psychologist and takes Mobic and Panadol.
Mr Rima described to Medical Assessor Home:
(a) constant neck pain with restricted movement of his neck when it was severe;
(b) pain and tightness across the shoulders and his shoulders are getting stiffer due to inactivity;
(c) thoracic back pain equal on both sides present a few days a week;
(d) constant low back pain with intermittent radiation to the back and front of the thighs and into the lower abdomen;
(e) burning sensation in both feet at night and lack of sensation in the legs below the knees, and
(f) anterior knee pain with clicking and grading exacerbated by climbing stairs and crouching. He has had no instances of his knee giving way.
On examination he records:
(a) neck – no radicular signs although some symmetrical restriction of movement;
(b) thoracic – no muscle spasm, symmetrical restriction of movement;
(c) lower back – no muscle spasm, reduced movements which are symmetrical with no muscle guarding;
(d) upper arms – normal neurological examination – no muscle wasting, normal power and normal sensation with reflexes present and symmetrical;
(e) shoulders – some restriction of movements on both sides and neck pain when lifting the left shoulder;
(f) lower limbs – normal neurological examination, and
(g) right and left knee – no effusion, prominent joint crepitus, reduced flexion to 130 degrees.
Medical Assessor Home details the surveillance material and summarises the radiology.
Medical Assessor Home accepted the claimant’s history of immediate pain in the knees, neck and back pain and was satisfied the claimant sustained a whiplash injury to his neck, lower back and direct impact injury to both knees.
Medical Assessor Home notes no previous history of knee pain but impact with the dashboard, Assessor Home therefore considered the accident a more than contributory cause of the current complaints.
Medical Assessor Home considered that the claimant’s restricted shoulder motion was secondary to his neck injury as he did not accept there was a direct or specific injury to the shoulder.
He noted the range of motion was less than that recorded by Assessor Harvey-Sutton which may reflect the development of stiffness in the intervening two years, and he considered the surveillance was not of great significance.
He found the following impairments:
(a) Cervicothoracic – DRE I = 0%.
(b) Thoracolumbar – DRE I = 0%.
(c) Lumbosacral – DRE I = 0%.
(d) Shoulders – using the range of motion method:
(i)Right – 6% upper extremity impairment = 4%
(i)Left – 6% upper extremity impairment = 4%.
(e) Knees – using AMA 4 Table 62 footnote:
(i)Right – 2%
(i)Left – 2%.
directions and Submissions
The Panel issued submissions to the parties requesting a bundle of documents from each. The claimant complied and his bundle is identified as document AD1 in the Commission’s electronic file which includes over 200 pages.
The insurer also complied, and its bundle is identified as document AD2 in the Commission’s file and is also comprised of over 200 pages.
After the Panel’s first meeting, the Panel issued a report and directions document to the parties noting the following:
(a) the Panel would not be considering the claimant’s allegation of injuries and disabilities including vertigo and stomach/gastrointestinal issues which had not been considered by Medical Assessor Home;
(b) the insurer’s submissions in support of the application for review did not raise any issue with the assessment of the claimant’s thoracic and lumbar spine and that, subject to any submissions from the parties, the Panel did not intend to consider those injuries any further;
(c) whether there it was conceded that if the claimant’s knees were found to be injured in the accident that the WPI would be 2% for each (4% in total), and
(d) noting the length of the submissions made to the President’s delegate the Panel requested “succinct” (three to four pages) submissions from the insurer as to the body part to be assessed, the insurer’s proposed diagnosis, the insurer’s impairment assessment and any specific issues relevant to the diagnosis and impairment of that body part.
Insurer’s submissions
The insurer provided more succinct and direct submissions to the Panel in support of the review dated 24 June 2022. These submissions state:
(a) the Panel must assess all the claimant’s injuries afresh;
(b) the insurer would not concede any particular degree of WPI and it was a matter for the Panel to assess any impairment to the claimant’s knees;
(c) the insurer confirms its position that the claimant did not suffer any injuries to the thoracic spine, lumbar spine or both knees in the accident;
(d) the claimant has given incorrect histories and therefore any subjective complaints of pain and history must be verified by objective evidence;
(e) the claimant’s neck injury was a soft tissue injury which ought to have resolved by now and would attract a 0% WPI. There is an issue of causation noting that radiology did not disclose any evidence of injury to the cervical spine and that the claimant attended his general practitioner (GP) 55 times after the accident and there is no recorded complaint of neck pain in any of them;
(f) the claimant’s thoracic spine was not injured in the accident in accordance with the opinions of Medical Assessors Harvey-Sutton, Home and Dr Keller. There is no evidence of any bony injury on the radiology (although evidence of pre-existing Scheurman’s disease), the accident was minor and thoracic spine pain was not mentioned in his GP’s notes after the accident;
(g) the claimant’s lumbar spine was not injured based on the radiology and the report of Dr Hanna and that lumbar spine complaints do not feature in the 55 entries in the GP’s records after the accident;
(h) there is no basis for any referred pain to the shoulders because the claimant sustained a minor soft tissue injury to the neck which should have resolved. The claimant has had no imaging of either shoulder and Dr Hanna refers to the accident as “very trivial”. The insurer again refers to the 55 post accident attendances on his GP noting no complaints of shoulder pain, and
(i) in terms of the claimant’s knees, there are no acute features on the more contemporaneous radiology but degenerative changes and that the MRI undertaken 11 months after the accident does not provide any causal link to the accident. There were only four mentions of knee problems after the accident which is consistent with flare ups in degenerative knees. The diagnosis of patellar maltracking and chondromalacia is a constitutional condition and with three weeks between accident and first complaint of knee pain no causal connection.
Claimant’s submissions[5]
[5] The claimant’s submissions in support of the review are dated 3 March 2022 and are found at page 1 of the claimant’s bundle.
The claimant notes both Medical Assessor Home and Medical Assessor Harvey-Sutton found the claimant had a WPI of greater than 10%.
The claimant notes the two histories of immediate neck, back and knee pain and being taken home by a tow truck driver (recorded by Medical Assessor Home) and a 10-15 minute delay in the onset of neck, back and knee pain and going home with relatives (as recorded by Medical Assessor Harvey-Sutton) and suggests this is not significant or material.
Medical Assessor Home did engage with the report of Dr Keller and his diagnosis of a constitutional condition noting there was no evidence of previous knee problems and an entry on 11 September 2017 of complaints in both knees[6]. The claimant says while the insurer says there is no evidence of recorded complaints of knee pain in the three weeks after the accident, there is no evidence to rebut the claimant’s own evidence of symptoms in the three weeks and seeing his GP.
[6] The claimant’s submissions clearly refer to a handwritten entry on 11 September 2017 however the handwritten notes which the Panel has commences with a handwritten entry dated 15 September 2017.
Medical Assessor Home reviewed the radiology, and the claimant says MRIs are more sophisticated than X-rays or CT scans and therefore more likely to detect patellar chondropathy.
Medical Assessor Home found on examination neck pain causing limitation on shoulder movement and assessed the impairment associated with that.
The claimant says there is no delay in bilateral knee symptoms merely a delay in identifying the specific pathology to explain the “contemporaneous complaints” of knee pain after the accident. The claimant says there is no evidence to dispute the claimant’s allegation of striking his knees on the dashboard and says there is no evidence of previous problems or post-accident injuries to the knees. There is therefore no evidence of an intervening traumatic event to explain the development of patellar chondropathy.
The claimant argues that he was examined by Medical Assessor Home who found clinical signs of ongoing neck and shoulder symptoms. Dr Keller’s views that the claimant’s injuries should have resolved does not correspond to what Medical Assessor Home found, which is ongoing complaints.
The claimant was invited to provide additional and final submissions in answer to the Panel’s report and directions but did not. No further submissions were received after the insurer’s final submissions.
Review of the evidence
Previous assessment
Medical Assessor Harvey-Sutton undertook an assessment of the degree of Mr Rima’s WPI on 13 December 2019[7]. This Medical Assessor had a history of the claimant separating from his wife and closing his smash repair business six months after the accident and taking up a job as a mobile spray painter. The claimant denied any previous “aches or disabilities”.
[7] Her certificate dated 18 December 2019 is at page 51 of the insurer’s bundle of documents.
Mr Rima told the Medical Assessor about his accident saying he went forwards and backwards and felt no immediate pain but was “numb in his body”. He thought he had hit his knees on the dashboard because there was damage to it.
He says the pain came on about 10-15 minutes later, police and ambulance did not attend, a tow truck came, and he went home with relatives.
He said that while the lower back, neck and shoulder ridge pain came on 10-15 minutes after the accident, he had no pain in his knees initially and this came on steadily. He says he saw a GP a few days later.
Medical Assessor Harvey-Sutton reviewed the AllCare Carnes medical notes which record an attendance on 7 August 2017 (before the accident) with the next entry being 27 June 2018 for knee pain after the accident. Medical Assessor Harvey-Sutton also noted the records of Dr Cwyinski in Austral which commence on 15 September 2017. Mr Rima thought he had been there before that date.
The Medical Assessor notes the claimant’s treatment and referrals.
The claimant described pain in the back of his neck which comes and goes and radiates to his shoulders. He did not report any radicular complaints. He had a burning sensation in the mid-back and constant pain in his lower back with some radiation into the left thigh. He said his feet were numb, but the Medical Assessor could not ascertain any sensory deficit on examination. The claimant complained of pain in both knees particularly on stairs and reported hearing a grinding noise.
The claimant said he took Endone and sleeping tables at night and Mobic every day.
On examination of the neck there was no radiculopathy and no radicular signs. While there was restriction of movement, it was symmetrical. Shoulder movements were restricted in flexion and abduction but there was no wasting of muscles and neurological examination was normal.
There was no abnormality detected in the thoracic spine although there was tenderness over the mid thoracic area. On examination of the lumbar spine there was no radiculopathy or radicular signs although tenderness and symmetrical restriction of movement was present.
Medical Assessor Harvey-Sutton observed thickened skin on the claimant’s knees and Mr Rima said he worked from a kneeling position. Examination of the knees showed bilateral tenderness on compression of the kneecaps and “significant” crepitus. There was a reduction in range of motion (120 degrees in both knees whereas normal is 150).
Medical Assessor Harvey-Sutton expressed the view that “the severity of the crepitus and that he could get out of the car and walk and then the pain came on some 15 minutes later would indicate that the crepitus was pre-existing this accident and became symptomatic following the accident”. Medical Assessor Harvey-Sutton reviewed the radiology including X-rays undertaken on 11 September 2017 of the claimant’s cervical spine and both knees.
Medical Assessor Harvey-Sutton diagnosed a whiplash injury to the claimant’s neck and back and impact injuries to both knees and assessed WPI at 11% comprising:
(a) cervical and thoracic spine – 0%;
(b) lumbar spine – 5%;
(c) right upper limb - 1%;
(d) left upper limb – 1%;
(e) right lower limb - 2%, and
(f) left lower limb – 2%.
Claim form
In his claim form[8] dated 25 October 2017, the claimant notes there was a “great impact” from the other car. He notes a report to the police on 8 September 2017 and lists injuries to his neck, both shoulders, mid and lower back, both knees, hearing loss, ringing in his ears, migraines, nausea, vertigo and tingling in the right fingers and hand. He identifies his GP as Dr Cywinski.
[8] Page 89 of the insurer’s bundle of documents.
Dr Cywinski completed the medical certificate attached to the claim form[9] which is dated 24 November 2017. He diagnosed whiplash, hearing loss, injury to both knees, injury back, right hand tingling, PTSD, both ears ringing, vertigo and nausea. He says he examined the claimant on 22 August 2017, the day of the accident and said the claimant was unfit to work from that day to 22 September 2017.
[9] Page 98 of the insurer’s bundle of documents.
Imaging
The following imaging has been provided in the records:
(a) 11 September 2017 – X-rays of neck and both knees. In terms of the neck the vertebral alignment was said to be normal with normal disc heights and no bony abnormality. In terms of the knees the joint space was said to be normal and the articular surfaces smooth;
(b) 23 October 2017 – CT scan lumbar spine due to a clinical history of back pain. There were disc bulges from L2/3 to L5/S1 but no exit root nerve impingement however the L5/S1 bulge was said to contact the S1 nerve roots on both sides particularly on the left;
(c) 23 November 2017 – MRI lumbar spine – minimal lumbar disc bulges without significant neural impingement;
(d) 6 December 2017 – MRI cervical thoracic spine – previous Schuerman’s disease with annular tears and disc protrusions and mild cord compression but no underlying intermedullary signal;
(e) 20 December 2017 - CT both knees reported small joint effusion with mild lateral tracking of the patellae and minor early osteoarthritic changes;
(f) 5 July 2018 – MRI scan of left knee showed an intact menisci, cruciate and collateral ligaments, mild joint effusion and grade 3 (out of 4) patella chondropathy, predominantly involving the lateral facet, and
(g) 5 July 2018 – MRI scan of right knee showed identical findings.
General Practitioner notes
Allcare Carnes Hill Medical Centre (Allcare)
The Allcare notes[10] begin with an attendance in February 2013 for a spider bite. There is no suggestion of any relevant physical problems before August 2017 and the attendances relate to respiratory complaints, nasal symptoms and heart palpitations.
[10] Page 94 of the claimant’s bundle.
There is a series of blood tests (commencing at page 112 of the claimant’s bundles) requested in April 2017 but performed on 21 June 2017 where the history was given of “vertigo”. The corresponding note in the records dated 25 April 2017 records “Vertigo, nausea feeling”.
The motor vehicle accident is mentioned on 20 March 2019 in the context of knee pain where there was reported mild joint effusion and patellar chondropathy and chronic pain. It was noted the claimant was seeing Dr Ireland and was unable to climb stairs.
In April and May 2019 there were a couple of attendances at Allcare for right elbow pain in the context of his work duties and a Workcover medical certificate was given. The claimant also wore a brace and was prescribed physiotherapy. Mobic was prescribed on 29 April 2019 for this condition.
On 10 July 2019 the car accident was again referred to and the claimant was complaining of knee pain with difficulty on stairs and a further referral to Dr Ireland was given.
There were also complaints of stress, concerns over finances and difficulty sleeping with prescriptions of Melatonin in April 2019 and Temazepam on 1 May 2019 associated with his Workcover elbow pain.
Mobic and Temazepam were given in May 2020 due to stress and losing hours at work.
On 20 August 2020 is this entry
“Also asking if he can designate me as the NTD (Nominated Treating Doctor) for a car accident case he had a while ago. No mutual trust with his current NTD. Did not see him for more than a year had addiction with oxycontin post injury. Thought he was supposed to be referred to pain clinic but was not. Now taking Panadeine forte time to time and Mobic”.
A wrist injury at work was reported on 30 October 2020.
There is no mention of neck or back or shoulder pain in these records. The only accident-related complaints are the knee complaints.
First Care Medical Centre (First care)
The First care notes commence on 2003 with prescriptions for Brufen, Panadeine Forte in 2005 and references to a Workcover claim in June 2007 and May 2008. There are Workcover medical certificates (page 214) in relation to a work accident on 22 May 2008 due to “soft tissue injury chest, neck, right knee” which also developed into left clavicle pain. The claimant was certified unfit for work until 11 June 2008.
There are references in the notes to stress and insomnia and migraines before the car accident.
On 15 May 2019 there is an attendance for disturbed sleep pattern due to domestic stresses and the claimant sought a prescription for Temazepam. There are other attendances in December 2019, April and June 2020 and further prescriptions of Temazepam were given.
On 22 August 2020 there is a note by Dr Gouder of “more pains in his back and knees since the MVA” and Mobic was prescribed. This is the only mention of the car accident in these records. The Panel notes that there is no mention of the car accident at an attendance on 6 September 2017, two weeks after the accident.
In March, April, May 2021 and October 2021 there are multiple attendances for sleep issues due to stress and his wife’s health and Temazepam was prescribed.
Dr Cywinski
The medical certificate attached to the claim form suggests Dr Cywinski saw the claimant on the day of the accident.
Dr Cywinski’s records are handwritten[11]. There are multiple copies, but they appear to begin with an attendance on 15 September 2017 and end with a consultation on 29 January 2018.
[11] They commence at page 130 of the claimant’s bundle there is a single page commencing 18 December 2017 at p 149.
The notes included a referral for neck and knee x-rays which is not dated however the X-ray report is dated 11 September and addressed to Dr Cywinski. As there was no date earlier than 15 September in Dr Cywinski’s records the Panel interpreted this to mean either the radiologist was incorrect in the date of the report (which is unlikely) or that the claimant must have seen Dr Cywinski before 15 September 2017 complaining of neck and knee symptoms.
The Panel directed the parties to produce all of Dr Cywinski’s records and the claimant’s Medicare and Pharmaceutical Benefits Scheme (PBS) records. The Panel called for clarification from the parties and a further complete set of the notes were provided at AD7 in the Commission’s file and the Medicare and PBS records are AD8. As the Panel had been unable to decipher the handwritten notes the insurer obtained a transcript of the notes which was provided to the Panel.
Dr Cywinski’s notes and the related documents reveal:
(a) a handwritten report addressed to the claimant’s solicitors which also appears in a typed format and is dated 1 May 2018 which indicates the claimant was seen on 22 August 2017. There is no corresponding Medicare entry for that date. The claimant last saw a doctor before the accident on 14 August 2017;
(b) there is no handwritten note regarding an attendance on Dr Cywinski on 4 September 2017 but there is a Medicare record of one occurring;
(c) the Medicare records then suggest the claimant saw Dr Volfneuk (First Care medical centre) on 6 September (no mention of the accident in those records on that date) and Dr Aspres (dermatologist) on 7 September (unrelated attendance);
(d) the X-rays of the claimant’s spine and knees took place on 11 September 2017 and were ordered by Dr Cywinski;
(e) there is a handwritten note in Dr Cywinski’s records dated 13 September 2017 (and a Medicare charge for it) which lists neck, head jolt, hearing loss, ringing in both ears, shoulders, mid and low back, both knees (hit) and clicking etc, tingling in right fingers and so on, and
(f) there are further handwritten notes for attendances on 15 and 18 September 2017 which correspond to Medicare entries.
Treating specialists
Dr Hanna (neurologist) has produced his records which include a letter dated 13 November 2017 to Dr Cywinski which includes the following:
(a) “he was very adamant that no injury occurred and he was able to get out of the car … and he went home feeling fine”;
(b) it was only later in the day that he developed neck, lower back, bilateral shoulder and knee joint pain;
(c) he had been investigated and no “sinister pathology was found”;
(d) his major problem was a headache in the occipital area radiating to the temples with pressure, throbbing and some nausea;
(e) he had lower back pain radiating to the buttocks and front of the thighs, and
(f) the examination was “unremarkable”.
Dr Hanna concluded:
“From the history I can conclude that Mr Rima was involved in a motor vehicle accident was very trivial and he probably had some cervical musculo-ligamental strain injury. His lumbosacral spine CT scan … revealed a couple of disc bulges with facet joint disease which is indicative of chronic pathology rather than acute”.
Dr Hanna requested blood tests and a whole spinal cord MRI followed by a review. There is no further report from Dr Hanna which the Panel assume suggests there was no review undertaken.
Dr Ireland, orthopaedic surgeon wrote a letter to Dr Cywinski on 24 May 2018[12]. He has a history of no pain at the time of the accident but the progressive onset of neck, back and knee pain. The knees were said to be “particularly sore as a result of striking the dashboard”, noting a broken plastic console where his knees had impacted under the steering column.
[12] Page 74 of the claimant’s bundle of documents.
The claimant reported some improvement, and the pain was not constant, but he was having difficulties with stairs and an inability to crouch. He complained of grinding, clicking and occasional burning with disturbs his sleep. The claimant said he took Endone and Oxycontin for his spinal and knee injuries.
Dr Ireland found marked patellofemoral crepitus, tender maximally round both knees but a good range of movement and stability.
In his second report dated 19 July 2018[13], Dr Ireland reviewed the MRI scans which showed “serious impaction injuries of both knees with chondral fissuring, blistering and subchondral oedema” and underlying mild patellofemoral dysplasia. He thought the problems were all related to the car accident and that over time the disease in his knees would progress and Mr Rima was advised to return if he had serious concerns.
[13] Page 75 of the claimant’s bundle of documents.
Claimant’s medico-legal reports and evidence
Dr Uthum Dias (occupational physician) provided a report to the claimant’s solicitor dated 30 January 2019[14]. He had a history of the claimant being a spray-painter and panel beater since he was 18 years of age. At the time of the accident, the claimant was working on a full-time basis in his own business doing the physical as well as administrative tasks. Dr Dias has a description of the job being a physical manual job which involved “prolonged walking, prolonged standing, bending and twisting of the low back, overhead work and heavy lifting of automotive components and bulk materials.”
[14] Page 46 of the claimant’s bundle of documents.
Mr Rima denied having any pre-existing injuries or conditions.
He takes a history of the claimant being hit from behind by a Ford Fiesta hatchback while he was slowing to make a right-hand turn. The airbags in his Nissan Coupe did not deploy, there was extensive damage to the rear of his car and it was towed away and written off.
Dr Dias has a history of injury to the neck, a jarring of his head and low back and that Mr Rima’s knees hit the dashboard. Dr Dias says that “Mr Rima continued” to experience pain, stiffness and discomfort in his neck, back and both knees in the days and weeks after the accident. This suggests that Dr Dias was told of the immediate onset of these symptoms.
Dr Dias has a history of the claimant going to see his GP (Dr Cywinski) on 4 September 2017 and that X-rays of the cervical spine and both knees were performed on 11 September with Mr Rima being told to take analgesics and have physiotherapy.
Dr Dias was told the claimant’s symptoms in his neck, back, knees and shoulders have continued along with intermittent symptoms of vertigo and tinnitus.
Dr Dias takes a history of the referral to Dr Ireland, Dr Hanna, Dr Katzen (ear nose and throat surgeon) and Dr Lalak (urologist) but that Mr Rima is not currently under the care of a treating specialist but that he sees a psychologist and his GP, Dr Cywinski on a weekly basis for his injuries.
Dr Dias records that the claimant struggled to work for about six months after the accident then stopped work and shut his business and was out of work for six months. He then tried to work as an employee but gave that up after three months before starting his current job as a mobile smash repairer doing very small spraypainting jobs.
Mr Rima complained to Dr Dias of:
(a) ongoing pain, stiffness and discomfort in his neck, thoracic and lumbar spine, right and left knees;
(b) ongoing tinnitus and vertigo;
(c) pain and discomfort radiates from the claimant’s neck to his right and left shoulder;
(d) he has pins and needles and numbness radiating down his left arm to his hand;
(e) there are pins and needles and numbness and a burning pain radiating down his left and right legs to his feet;
(f) the pain is on a scale of 8 out of 10, and affects his sleep at night;
(g) he struggles to walk for more than five minutes or stand for more than 10 minutes and sitting for more than 15 minutes becomes uncomfortable.;
(h) he drives with cushions for support;
(i) he has gained 15 kilograms in weight due to immobility, and
(j) his sex life has deteriorated significantly due to his physical and psychological injuries.
Dr Dias documents Mr Rima’s difficulties with domestic duties noting that he was the full-time carer for his ex-wife before the accident.
On examination of the neck, movements were reduced by pain and asymmetrical. While there was no spasm is the neck there was guarding. In the thoracic spine there was no guarding or spasm and a full range of motion with no sign of thoracic radiculopathy. The lumbar spine was examined and guarding noted but no spasm. Movements were restricted and asymmetrical. There were no signs of neurological injury to the neck or lower back.
There were restricted movements in the left and right shoulder in flexion and abduction but not the other planes.
On examination of the knees there was no swelling or effusion and flexion was reduced to 120 degrees in both knees.
Dr Dias diagnosed:
(a) chronic non-specific cervical spine pain with restricted shoulder movements and cervicogenic vertigo secondary to a Musculo-ligamentous strain;
(b) the loss of shoulder motion is related to the neck injury and not due to a frank or direct injury to the shoulders;
(c) persistent aggravation of thoracic spondylosis secondary to an acute strain;
(d) persistent aggravation of lumbar spondylosis with no verifiable radicular symptoms secondary to acute strain, and
(e) chronic right and left knee dysfunction secondary to acute soft tissue impaction injury.
Dr Dias found all these injuries caused by the accident on the basis that Mr Rima has experienced symptoms in his neck, back, shoulders and knees every day for the last 17 months and that he was asymptomatic in all these areas before the accident.
He found no assessable impairment in the thoracic spine but allocated category II to both the neck and the lower back which attracts 5% WPI for each of those body areas. The right shoulder was assessed with a WPI of 4% and the left at 2% for the restriction of motion and each of the claimant’s knees were assessed as having a 2% WPI. In total the claimant was assessed by Dr Dias as having a WPI of 20%.
Dr Canaris, psychiatrist, provided a report dated 4 March 2019[15]. He has a history of the impact from behind and that Mr Rima’s airbags did not go off but that the airbags of the other car did. Dr Canaris records that Mr Rima “had a lot of impact on the steering wheel under the steering wheel and the dashboard … there was no ambulances – I didn’t go to hospital … I was probably in shock – the pain started coming on a few days after.” A friend apparently drove him home and his car was towed. The claimant said he took a month off work but tried to keep his business open.
[15] Page 67 of the claimant’s bundle of documents.
The claimant complained of pain in both his knees his back and his neck which was “constant” and that he had “multiple tests” and there were “significant damages”. He referred to being “very, very restricted”. He blames the injuries he received on the failure of his business and says he “cannot squat, lift or bend” that he tried to work as a smash repairer but gave up after a month and now works full-time in another business.
The claimant said he was in the process of reconciling with his ex-wife at the time of the accident but that his libido had been affected because of the accident.
Dr Canaris documents significant impacts on the claimant’s life, suicidal ideation, failure to look after himself and his appearance, no longer going out, he is anxious and irritable and wakes from “night terrors”. He suffers from insomnia. He takes Voltaren and Endone. He said he tried sleeping pills but threw them away and refuses to take antidepressants.
Dr Canaris diagnosed major depressive disorder with features of posttraumatic anxiety, panic attacks and agoraphobia.
Insurer’s medico-legal reports and evidence
Dr Andrew Keller provided a report dated 26 February 2021 to the insurer. He has a history of the claimant’s work noting that in his panel beating business “he would lift on occasions up to 100kg”.
The claimant’s history of the accident is that he was hit from behind, airbags did not deploy but his car was written off. He was able to stand and walk at the scene and suffered “immediate pain in neck with no other injuries”. Mr Rima said he went home, rested and did not work and saw a doctor after two weeks and was referred for X-rays (neck and both knees).
The claimant also told Dr Keller that he remained off work for two to three months but was not certified unfit and he had physiotherapy after three months. The claimant said his business “collapsed” in 2018, his physical treatment stopped, and he started seeing a psychiatrist. In late 2018 he began working for Up2scratch working eight hours a day, five days a week lifting up to two kilograms and driving for up to four hours.
Mr Rima complained to Dr Keller of constant lower back pain at 8/10, intermittent neck pain at 9/10 and constant pain in both knees with clicking at 10/10.
On examination, Dr Keller found:
(a) full symmetrical motion cervical spine with no spasm and no reports of pain;
(b) there was some restricted motion of right shoulder in both joints but Dr Keller considered this was because of neck pain;
(c) there was full range of motion in the other joints of the upper arms;
(d) smooth kyphosis in the thoracic spine normal reflexes and no indication of abnormality with the lumbar spine, and
(e) there was small effusion and significant crepitus in the knees with a range of knee motion of 0-120 degrees flexion in both knees.
Dr Keller considered Mr Rima’s crepitus was consistent with patellar maltracking chondromalacia which he said was a constitutional condition. He noted the claimant did not report immediate knee pain and went home after the accident which was not consistent with significant trauma to the knees sustained in an accident. He found no assessable impairment.
Medical Assessor Keller found the claimant satisfied DRE category I in both the neck and the thoracolumbar spine which attracted a 0% WPI. He did not assess impairment of the shoulders. He suggested reports of pain of an intensity between 8 out of 10 and 10 out of 10 was not consistent with someone who was able to work full time.
There is a supplementary report from Dr Keller dated 30 April 2021[16] which reviews the surveillance footage stating, “this is not consistent with his claim that he has significant persisting pain in his neck, back and knees”.
[16] Page 110 of the insurer’s bundle.
AHC investigations were retained by the insurer to undertake surveillance on 22, 26, 27 and 30 October and 6 November 2020. There were 21.5 hours of surveillance conducted and 31 minutes of video footage was obtained. At page 77 is a reference to previous observations undertaken in 2018 but the film relating to that was not before the Panel. The Panel has viewed the film as part of its deliberations.
Re-examination findings
A medical re-examination of the claimant was carried out on 22 July 2022 by Medical Assessor Stubbs in the Commission’s rooms at Oxford Street. Medical Assessor Moloney attended by video conference.
History provided by Mr Rima
Mr Rima is now 41 years of age. He previously ran his own panel beating and spray-painting service but since the accident is employed doing touch up spray painting for a mobile service. He works 38 hours a week and says the work is fairly light. He separated from his wife two years after the motor vehicle accident and now lives in a single-story home with his mother. He is fully independent in activities of daily living but does employ a gardening service. His two children live nearby, and he visits them regularly.
Mr Rima reported no significant musculoskeletal impairments before the motor vehicle accident. He was physically active and played social sport with friends but not competitive sport nor did he have a gym membership or a regular physical exercise program.
In light of the issue of causation concerning abnormalities in his knees, Mr Rima was asked whether he suffered any previous injuries or symptoms or was aware of any clicking or crepitus in either knee. He denied any previous knee injury and said he had not noticed any clicking or crepitus before. He was not heavily built as a child and could not remember any childhood knee problems.
The motor vehicle accident occurred when he was rear-ended driving his Nissan 370Z Coupe on local roads traffic with moving slowly. He was able to get out of the vehicle and the damage was confined rear of his Nissan. There was no frontal impact. He exchanged details with the other driver and arranged for his vehicle to be towed. The vehicle was assessed as a write-off by the insurer for the sum insured of $27,000 but he made arrangements to keep the vehicle with the intention of repairing it himself, but later sold the vehicle as a wreck[17].
[17] The claimant has provided a copy of a letter from AAMI indicating that the sum of $24,916 was paid to Mr Rima being the value of the car ($26,166) less the salvage value ($1,250).
Mr Rima said he noticed immediate neck and back pain and thought that he had struck his knees on the dashboard. The Panel put to him that the records we had suggested he did not see his local doctor until three weeks after the accident. He believes he saw his GP within the first week. His initial complaints were of bruised and swollen knees which became quite painful overnight following the accident and he also suffered from posterior neck pain spreading into the scapular region on both sides. This was accompanied by headaches from the occipital to frontal and a tight feeling across the scalp. There was also what he described as some mild low back pain.
The panel put it to Mr Rima that contact of his knees on the dash was unlikely as the biomechanics of rear impact would tend to push him backwards into the seat and away from the dashboard. He was certain his knees hit the dashboard as there was a crack on the fascia of the steering mount.
Mr Rima said he required opiate analgesics for a period after the motor vehicle accident but felt he was becoming addicted to these. The Panel notes the PBS records corroborate this history. Mr Rima has since been able to wean himself off the opiates and now takes only Nurofen or paracetamol for pain and occasionally Voltaren. His knees remained troublesome, but he is able to climb stairs normally but finds going upstairs easier than going downstairs and either knee may occasionally buckle momentarily. He does not need to use a handrail or take the steps one at a time.
The surveillance footage was discussed with Mr Rima. He had seen this and noted that it really only showed him driving, walking, and shopping except for lifting what he said were light plastic outdoor chairs on one occasion. He did not think the surveillance footage contradicted his complaints.
His continuing symptoms include neck and back stiffness, and he finds it difficult to turn his head when reversing his vehicle. The shoulder pain he has is in the low neck spreading down to between the shoulder blades. The low back pain is in the small of the back spread into his buttocks and into the back of the thighs on both sides and about equally. He cannot identify any specific provoking factors for low back pain or anything he can do to relieve it. He says the neck pain is constant and is associated when holding any particular neck posture. There is tenderness in the neck which is aggravated by massage but diminished by local heat and analgesics. He reports some tingling in both hands from the palmar crease into the third, fourth and fifth fingers. If bad it spreads approximately into the whole forearm. This is most likely to trouble him at night but does not interfere with his work.
His consulted Dr John Ireland orthopaedic surgeon about his knees in 2019. Dr Ireland has told him that he may need surgery (the panel understands patella replacement) in the indefinite future.
He said he has had no further injuries and the social problems with his family have satisfactorily stabilised.
Clinical examination:
Mr Rima was able to dress and undress without assistance and climbed on and off the examination couch without assistance. He is 184cm tall and weighs 121kg underdressed. He can tip toe and heel toe walk and stand independently on one leg without requiring support. He can hop and squat to 90 degrees.
Cervical spine
When Mr Rima was requested to rotate his neck left and right, at first, he did not want to move his head at all. When it was pointed out to Mr Rima that the Panel has observed him moving his neck without apparent restriction during the history taking part of the examination, he then showed three-quarters of active range in all three planes of movement.
There was some accompanying tenderness to deep pressure in the right scapular, but no guarding or spasm was seen in conjunction with this. Brachial stretch test was performed and was negative on both sides. This is better than in previous examinations and, in the medical members of the Panel’s view, reflects the natural progression to resolution of soft tissue injuries in the cervical spine.
Neurological examination of the upper limbs was normal with brisk symmetrical reflexes and no sign of wasting with the right arm being measured 38.5cm compared to 38cm on the left and the forearm measured at 33.5cm compared to 33cm of left which reflects Mr Rima’s right-hand dominance. Brachial stretch test was negative as was Sperling’s compression test though this was uncomfortable on right rotation. Skin sensation was normal, and tests of peripheral nerve compression were also normal.
Thoracic spine
Although he did indicate neck pain and pain between his shoulders, Mr Rima did not describe or indicate thoracic spine pain. Medical Assessor Stubs examined Mr Rima’s thoracic spine and noted there was full and pain free movement and no evidence of any neurological or other abnormality.
Shoulders
The Panel recorded the following measurements on examination of Mr Rima’s shoulders. The range of motion was measured with a goniometer and repeated three times. The range of motion was very consistent within the confines of the examination and reproducible.
Shoulder movement
Right
Left
Flexion
140
140
Extension
40
40
Abduction
140
140
Adduction
50
50
External rotation
70
70
Internal rotation
70
70
Specific tests for shoulder impingement, instability and acromioclavicular joint injury were normal. There was no wasting of the shoulder girdle or deltoid musculature. There is no imaging available or reported to have been undertaken of the shoulders at any time since the accident.
All of these findings indicate to the medical members of the Panel that in their clinical judgment there was no frank or specific injury to the anatomy of either shoulder caused by Mr Rima’s motor accident and that there must be some other cause.
Other upper limb joints
These were normal and there was no wasting of the thenar or hypothenar musculature seen in either hand. Grip strength was measured at 5/5 on both the right and the left.
Lumbar spine
The medical members of the Panel did not find any evidence of loss of motor strength in the lower limbs which were measured at 5/5 on both the right and the left and by functional tests (ability to walk on tip toe for example). There was no evidence of significant muscle wasting in the lower limbs with measurements of 57.5cm in the right thigh and 57cm in the left thigh and 38cm in both calves. There were normal reflexes in the ankles and knees. Straight leg raising was 75 degrees on both the right and left and knee extension while sitting was uncompromised.
On examination there was no pain with guarding observed and all movements were full and equal. The medical members of the Panel could detect no abnormality in the lumbar spine after a full and complete examination.
Knees
Medical Assessor Stubbs did not detect any swelling within the joint or in the surrounding soft tissues around the knees and there were no bruises or other signs other than some thickening of the skin over the pre-patella bursa which could be suggestive of psoriasis but is consistent with work that involves kneeling (as reported by the claimant to Medical Assessor Harvey-Sutton).
The range of motion was -5 to 140 degrees in both knees.
Leg alignment shows a slight valgus in both knees. The patellofemoral joint has a soft crepitus in both knees through a full range of movement. There was no tenderness on patella compression.
The Panel observed however a lateral positioning of the tibial tubercle such that the angle of the patella tendon deviates by 23 degrees along the long axis of the lower limb on both sides. However, the patella does not sublux laterally in either knee.
In the light of the findings of Dr Keller in particular and because of the significant issue of causation in this matter, the Panel called for the films of the claimant’s knees and viewed the X-rays and MRI scans. These were viewed by the medical members of the Panel in the presence of Member Cassidy in the Commission’s rooms on 30 September 2022.
The knee X-rays of 11 September 2017 showed the anteroposterior (AP) view, a lateral view and a skyline view. The overall appearance of both knees in these X-rays was normal. The skyline view showed a large lateral facet and a minimal medial facet tibial realignment contact point and marginal osteophytes. The joint space however was well preserved in both knees.
The MRI of the knees taken on 5 July 2018 included a coronal scan (through the knee front to back) as well as T1 and T2 weighted images. There was mild reactive effusion evident. The tibial-femoral joint was well preserved on both sides with a normal healthy layer of cartilage on both sides. The anterior and posterior cruciate and collateral ligaments were normal.
The transverse views showed the patella-femoral joint. The patella is small with unifacetal lateral tracking. There are grade three fissures in the cartilage although overall the cartilage is well persevered. There was no evidence in these scans of post traumatic changes in the clinical view of the medical assessors.
The X-rays and MRI scans suggest to the medical members of the Panel that the claimant has tibial mal-tracking and patella-femoral hypoplasia which would cause crepitus and intermittent pain which will increase as the claimant ages and particularly if he increases in weight. The medical members of the Panel note this is a constitutional condition unrelated to trauma.
Hips and ankles and feet
An examination of these parts of Mr Rima’s body revealed no abnormality.
ASSESSMENT
Cervicothoracic spine
The Panel accepts Mr Rima sustained a soft tissue injury to his neck in the accident. Mr Rima attended upon his GP on 4 September 2017 and Dr Cywinski’s records, when read as a whole, suggest that the claimant made at that time complaints of neck pain diagnosed as whiplash.
Mr Rima has, since then complained of cervical spine symptoms with pain spreading between the shoulders. This would be expected in a rear impact motor vehicle accident even of mild severity and would be categorised as at least DRE I which attracts a WPI of 0%.
A finding of DRE II would require:
(a) Pain with guarding – Medical Assessors Stubbs and Moloney did not, on examination of Mr Rima, find any evidence of guarding.
(b) Non-uniform range of motion or dysmetria – Medical Assessors Stubbs and Moloney noted the claimant’s range of motion when not being formally examined (while taking the history for example) was greater than when being formally examined. When formally examined and when the inconsistency was put to him, Mr Rima then demonstrated restriction of motion which was symmetrical. The Panel is not therefore satisfied there was dysmetria present at the time of the examination.
(c) Non-verifiable radicular complaints defined in Table 1.8 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.
In Mr Rima’s case, while the Panel notes Mr Rima complained of some symptoms in his upper limbs, the Panel could not, after careful examination find any explanation for the occasional tingling down the digits on the right side and specifically there were no positive irritation signs on compression of the ulnar nerve at the elbow and Mr Rima’s symptoms did not correspond to a specific nerve root. The medical members of the Panel having viewed the X-rays of the claimant’s cervical spine ordered on 4 September and undertaken on 11 September 2017 could not detect any cause of the claimant’s intermittent symptoms.
It is the Panel’s view that Mr Rima does not therefore qualify as DRE category II.
For the claimant to qualify as DRE category III he would have to have two or more of the following signs of radiculopathy:
(a) loss or asymmetry of reflexes – all of Mr Rima’s reflexes were present and brisk;
(b) positive sciatic nerve root tensions signs – the claimant’s brachial stretch test was normal on both sides indicating negative nerve root tension signs both left and right;
(c) muscle atrophy and/or decreased limb circumference – while there was some difference between the right and left arm circumferences, it is the Panel’s clinical judgment that this is not because of any nerve damage or injury but because the claimant is right-handed;
(d) muscle weakness anatomically localised to appropriate nerve root distribution – Mr Rima did not demonstrate any muscle weakness, and
(e) reproducible sensory loss anatomically localised to an appropriate nerve root distribution – while Mr Rima complained of altered sensation Medical Assessors Stubbs, as observed by Medical Assessor Moloney, could not reproduce this on testing.
Mr Rima does not therefore qualify as DRE category II or III and he has a 0% WPI for his cervical spine injury. While the Panel notes Dr Dias found Mr Rima was DRE category II when he examined the claimant attracting a 5% WPI, this was in an examination conducted more than three years ago and the claimant’s current presentation reflects an improvement in his condition, which is expected.
Thoracic spine
The claimant did not describe or point to any symptoms in the thoracic spine and an examination of his thoracic spine did not reveal any abnormality. The claimant either had no injury or has fully recovered from any injury in the thoracic spine and therefore there is no WPI evident.
Lumbar spine
The Panel accepts Mr Rima sustained a soft tissue injury to his lumbar spine in the accident. Mr Rima saw his GP on 4 September 2017 and when read as a whole the records of Dr Cywinski suggest Mr Rima made a complaint at that stage of low back pain. Mr Rima complained at the re-examination of lumbar symptoms namely pain with radiation into his buttocks and the back of his thighs.
In order for Mr Rima to qualify for a DRE category II impairment there would need to be:
(a) pain with guarding – while the claimant did complain of lower back pain, there was no guarding observed by the Panel during the course of the examination;
(b) non-uniform range of motion or dysmetria – there was no dysmetria. All movements of the lumbar spine were within normal range, and
(c) non-verifiable radicular complaints defined in Table 1.8 as:
(i)symptoms (shooting pain, burning sensation, tingling) and
(i)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.
In Mr Rima’s case, while the Panel notes Mr Rima complains of pain radiating into his buttocks and the back of his thighs this does not follow a specific nerve root and there was no loss of or diminished sensation complained of or loss of power or reflexes evident on examination.
Therefore, Mr Rima does not qualify as having a category II WPI and has a DRE category I impairment which attracts a 0% WPI. While the Panel notes both Dr Dias (in January 2019) and Medical Assessor Harvey-Sutton (in December 2019) found Mr Rima to have DRE category II (5% WPI), Medical Assessor Home did not (in January 2022). The Panel examined the claimant in July 2022, almost five years after the accident and also found the indicators for the higher category not present, which reflects the natural progression of injury towards recovery to be expected of a soft tissue injury.
Shoulders
The restriction of motion in the claimant’s shoulders corresponds to the following UEI.
Right
Impairment
Left
Impairment
Flexion
140
3
140
3
Extension
40
1
40
1
Abduction
140
2
140
2
Adduction
50
0
50
0
External rotation
70
0
70
0
Internal rotation
70
1
70
1
Total UEI
7 UEI
7 UEI
A 7% UEI translates to a 4% WPI. Therefore, according to the measurements undertaken by the Panel, the claimant’s total current shoulder WPI is 8%. The question then for the Panel is to consider is whether that impairment is an accident-related impairment.
On examination by the Panel there was symmetrical low - normal range of shoulder movement detected and no specific clinical indicators of an actual shoulder injury. Dr Dias, the claimant’s own expert was of the view there was no frank injury to the actual shoulders. The claimant has never had any radiology or ultrasound of either shoulder. In the Panel’s clinical judgment, any restriction of shoulder motion and therefore resultant impairment is not caused by any specific, frank or actual injury to the claimant’s shoulders.
Restriction of movement in the shoulders could, in the Panel’s view reflect neck pain radiating into the trapezius on both sides however on examination by the Panel, when the claimant moved his shoulders, this did not increase or even generate neck pain. This indicates to the medical members of the Panel that any current restriction of shoulder motion and therefore impairment of shoulder function is not related to the claimant’s neck injury.
There is no radiology or imaging of the claimant’s shoulders to shed further light on the cause of his symptoms.
The Panel notes it has not been taken to any pre-accident shoulder complaints.
On the basis of the whole of Dr Cywinski’s notes, the Panel accepts that the claimant has complained of shoulder symptoms on and after 4 September 2017 and that it is likely the claimant developed shoulder symptoms soon after the accident related to his neck injury. The claimant has said his shoulders have become stiff due to inactivity following the accident-related neck injury and this, in the Panel’s view is the most likely cause of his current shoulder impairment. While the claimant’s neck injury has continued to improve and continues to recover, the claimant has been left with a residual shoulder impairment.
Knees
The claimant’s tibial tubercle is externally rotated in both knees which is a constitutional condition, and which would lead to a lifetime of abnormal stresses on the patella-femoral joint.
The Panel also notes the claimant is a panel beater who told Medical Assessor Harvey-Sutton, Dr Keller and the Panel that his work involves kneeling, heavy lifting of up to 100kg, a lot of standing, bending and so on. In addition, the Panel notes that the claimant, at over 120kg is overweight which puts additional strain on his knee joints.
The Panel accepts that the claimant hit his knees on some part of the interior of the car sustaining a soft tissue injury. There is no evidence from Dr Cywinski of any laceration or bruise to the claimant’s knees at the time of his examination however the claimant must have reported knee symptoms on 4 September 2017 in order to be referred for X-rays of his knees on 11 September 2017.
The development of knee pain progressing until it prompted a visit to the GP two weeks after the accident suggests to the medical members of the Panel that the claimant’s soft tissue injury aggravated his pre-existing constitutional mal-tracking condition. If the claimant had sustained any more significant injury than that, then in the Panel’s view the claimant would have been in significant pain requiring more immediate attention.
The medical members of the Panel in their clinical judgment do not accept that five years after the accident the claimant’s complaints of knee symptoms and any associated impairment are related to the soft tissue injuries sustained in the accident. Any continued complaints are, in the Panel’s view caused by the claimant’s age, weight, his occupation and the malalignment of his tibia.
CONCLUSION
The claimant’s WPI is 8% made up of the following:
(a) cervicothoracic – DRE 1 = 0%;
(b) thoracolumbar – recovered;
(c) lumbosacral – DRE 1= 0%;
(d) left shoulder – 4% WPI;
(e) right shoulder – 4% WPI;
(f) left knee – 0%, and
(g) right knee – 0%.
It therefore follows that as the claimant’s WPI is not greater than 10% that the certificate of Medical Assessor Home must be revoked, and a fresh certificate issued.
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