Insurance Australia Limited t/as NRMA Insurance v Abraham

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Abraham [2024] NSWPICMP 322
CLAIMANT:	Rennay Georgina Abraham
INSURER:	Insurance issued by Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	22 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 20 September 2019; Medical Assessor (MA) Assem determined that the injuries referred by the Personal Injury Commission and caused by the accident gave rise to a whole person impairment (WPI) of 11%; the Medical Review Panel considered the issue of causation according to the Guidelines and determined the issue of WPI as determined on the clinical signs on examination found at the time of the assessment by the Review Panel; the Review Panel found permanent impairment to the right upper extremity and the cervical spine; the Review Panel certified that the injuries referred and caused by the accident equated to a total WPI of 13%; Held – the Certificate of MA Assem was revoked and a new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Assem dated 3 April 2023, and substitutes the determination by certifying that the injuries caused by the accident gave rise to a permanent impairment of 13%.

STATEMENT OF REASONS

INTRODUCTION

On 20 September 2019, Rennay Georgina Abraham (the claimant), was injured in a motor vehicle accident. Further details of the accident are set out below.
Ms Abraham has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Abraham under the MAI Act.
A medical dispute about the degree of Ms Abraham’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Mohammed Assem for assessment.
On 3 April 2023, Medical Assessor Assem determined that Ms Abraham did have a WPI of greater than 10%, namely 11% WPI.

REVIEW PROCEDURE

Ms Abraham sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 30 November 2023, the Review Panel informed the parties that it considered a re-examination of Ms Abraham was required. Arrangements were made for Mr Abraham to be re-examined by Medical Assessor Couch on 9 May 2024 in the Commission rooms.

LEGISLATIVE FRAMEWORK
General provisions

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

Ms Abraham’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Assem examined Ms Abraham on 29 March 2023, and issued a certificate under s 7.23 of the MAI Act.
Medical Assessor Assem was referred the following injuries for assessment:
(a)   lumbar spine – aggravation and acceleration of minor pre-existing back pain (subsequently further aggravated to the point of requiring surgery), L4-5 disc protrusion / herniation / impingement, musculoskeletal injury, radiculopathy, restricted in range of movement, pain;
(b)   cervical spine – multilevel disc protrusion/herniation/impingement, disc space narrowing, marked right C5/6 foraminal stenosis and impingement of C6 nerve roots, C7 fracture, aggravation of cervical spondylosis, radiculopathy, musculoskeletal injury, restricted range;
(c)   right shoulder/arm – musculoskeletal injury, restricted range of movement, pain in arm;
(d)   chest – musculoskeletal injury, restricted range of movement, pain;
(e)   right wrist – musculoskeletal injury, restricted range of movement, pain, and
(f)    right hand & fingers – fractured fourth metacarpal, musculoskeletal injury, restricted range of movement, loss of grip strength, pain.
At [3] and [4] in his reasons, Medical Assessor Assem considered both parties submissions.
He at [8] took a pre-accident history. He noted:
“Ms Abraham is a 54-year-old left hand dominant lady who previously worked as a pharmacy assistant. She commenced working at Woolworths as a store assistant in May 2019 employed on a casual basis, averaging 30-35 hours per week.
After the subject accident, she attempted to return to work but had difficulty coping due to severe pain in her chest and right hand. She was later noted to have an nondisplaced fracture to the metacarpal and remained unfit to work until January of 2020 when she was cleared to resume her pre-injury duties.
She also had a history of lower back discomfort that had occurred without any identifiable incident or injury. The pain would sometimes radiate to her leg. She managed her symptoms with simple analgesia but sometimes required short periods of time off work. She also had a history of depression. There were no other relevant medical or surgical conditions reported.”
Medical Assessor Assem took a history of the motor accident at [9] and a history of symptoms and treatment following the motor accident at [10]:
“On 20 September 2019, Ms Abraham was driving a 2018 model Honda Civic vehicle with her daughter as a front-seat passenger. They were travelling along Quakers Hill Road, Quakers Hill, heading toward Blacktown when a vehicle travelling in the opposite direction attempted to negotiate a right hand turn in their path, resulting in a head on collision. She states that most of the impact was in the right front corner of her vehicle.
She was wearing a seatbelt restraint. She reported that the airbag facility was deployed. I brought to her attention that the ambulance records indicated that the airbags were not deployed. She stated that she had difficulty recollecting events. She reported an injury to her right hand from the steering wheel and her chest from the seatbelt restraint. Her daughter sustained a fracture to the clavicle.”
Ms Abraham reported the following injuries and conditions sustained since the motor accident:
“In around December of 2020, she experienced back pain while washing her vehicle. She states that she was not performing anything strenuous. After resting for a short period, the pain became unbearable. She presented to Blacktown Hospital and Nepean Hospital several times for analgesia. Approximately three weeks later, the pain was radiating down her left leg.
A CT scan of the lumbar spine on 27 December 2020 showed a small to moderate L4-5 disc protrusion with mild narrowing of the bilateral recesses that may be impinging the traversing L5 nerve roots. She was referred to Dr Matthew Tait, Neurosurgeon, who arranged an L4-5 epidural block on 26 February that provided temporary relief. On 6 April 2021, Dr Tait proceeded to perform a left L4 nerve root surgical decompression that was successful in reducing the intensity of her symptoms.”
Medical Assessor Assem took a history of the current symptoms and proposed treatment at [12] and [13].
Ms Abraham reported intermittent neck discomfort radiating to her right shoulder, dorsal aspect of her right arm, sometimes right forearm and right third, fourth and fifth digits.
Ms Abraham considered her left shoulder to be normal.
She had difficulty clenching her fists due to pain involving the Distal Interphalangeal Joint (DIP) joints and experienced intermittent low back discomfort that sometimes radiated down the posterolateral aspect of her left leg. There were pins and needles involving the dorsal aspect of her left foot.
Ms Abraham had difficulty standing in a stationary position but no problems sitting or walking.
Ms Abraham was no longer taking analgesia or receiving any treatment for her physical injuries.
Medical Assessor Assem conducted a clinical examination. The results of this examination were set out in his reasons at [14]-[17]:
“14. General presentation
Ms Abraham had a depressed affect. She sat comfortably throughout the interview. She mobilised with a normal gait. She was advised at the time of examination not to engage in any manoeuvre beyond what she could tolerate or which may cause harm or injury. Her height was 156cm and she weighed 78kg.
15. Cervical spine (cervicothoracic)
She had a normal posture. There was no tenderness on palpation. There was no muscle guarding or spasm. Cervical flexion and extension were normal. Lateral flexion was normal on the left but slightly reduced on the right to three-quarters of normal range. Rotation was normal on the left but reduced on the right to two-thirds of normal range. I considered that there was asymmetry of movement and spinal dysmetria. Her upper limb reflexes were brisk and symmetrical. Power, tone and sensation were normal.
16. Lumbar spine (lumbosacral)
There was a 5cm fine, healed longitudinal surgical scar and tenderness on palpation. There was no muscle guarding or spasm. Lumbar movements were symmetrically reduced in flexion, extension, lateral flexion and rotation to half of normal range. She had no difficulty climbing on or off the examination couch. Active straight leg raising in the supine position was 50° on the right and 30° on the left. Neural tension signs were positive on the left. Her reflexes were normal. There was loss of sensation at the dorsal aspect of her left foot and slight weakness. There was no measurable difference in the circumference of her calves.
17. Upper extremity
There was no tenderness on palpating her shoulder. Her movements were limited by pain at remote locations. Shoulder flexion was limited by pain at the back of her left leg. Shoulder abduction was limited by back pain reported. Adduction was limited by neck pain and external rotation of her shoulder was limited by wrist pain.” Active range of motion was recorded in a table.
Medical Assessor Assem noted that Ms Abraham’s wrist movements were normal on the left. Right wrist movements were restricted in flexion to 50° and extension to 30°. Radial deviation was normal at 20° and ulnar deviation was normal at 30°. She had difficulty clenching her fist. The restrictions appeared to be at the metacarpophalangeal joint (MCP) joints of all of her fingers with flexion at 30° and extension to 0°. However, on repeated testing, she was able to obtain 70° of flexion at the MCP joint. She reported tenderness on applying pressure over the MCP joints.
At [19]-[20], Medical Assessor Assem provided a summary of the relevant radiological and medical imaging.
He set out his diagnosis, causation, and reasons at [21]:
“Ms Abraham was involved in a motor vehicle accident on 20 September 2019. The contemporaneous medical evidence supports a fracture to the right fourth metacarpal that was nondisplaced and managed conservatively. There was delayed union of the fracture as the healing was not progressing on 11 December 2019 and that may have contributed to some restriction in MCP movements noted at the time of my assessment.
She also sustained an injury to the chest wall that was documented in the ambulance record and the hospital records. Her chest symptoms have now subsided without any residual impairment or disability.
On 2 October 2019, she underwent a CT scan of the cervical spine for ongoing neck pain following the motor vehicle accident. Her neck symptoms are therefore causally related to the subject accident. She has chronic intermittent discomfort and stiffness with non-verifiable radicular symptoms involving her right arm.
She has a possible history of a right shoulder injury but most of her movements today were related to pain arising from the cervical spine. There were also some limitations from remote locations including lower back, left leg and right wrist that were anatomically untenable. In addition, the restrictions were inconsistent with what was documented by other medical examiners.”
Medical Assessor Assem concluded that the following injuries were caused by the motor accident:
(a) cervical spine – soft tissue injury with pain referred to the right shoulder and arm, and
(b) the right hand – undisplaced fracture of 4th metacarpophalangeal (mcp).
Medical Assessor Assem concluded that the following injury was not caused by the motor accident:
(a) there was no evidence that the motor vehicle accident aggravated her lower back symptoms. The onset of low back pain with radicular symptoms in the left leg appeared to be related to a specific incident that occurred while washing her vehicle in around December of 2020.
Medical Assessor Assem certified that the following injuries caused by the motor accident gave rise to a permanent impairment of 11%:
(a) cervical spine – soft tissue injury with pain referred to the right shoulder and arm, and
(b) the right hand – undisplaced fracture of 4th mcp.

SUBMISSIONS

Insurer’s submissions

The insurer provided written submissions dated 13 June 2023 in respect of the Review. The submissions are summarised below.
The insurer submitted that the amended certificate is affected by material errors and should be referred to a medical review panel for review pursuant to s 7.26 of the MAI Act on the following grounds:
(a)   the Medical Assessor failed to provide a clear path of reasoning relating to:
(i)the rounding of the percentage range of movement for the right shoulder;
(i)his assessment of the range of movement in the claimant's fist; and
(i)Medical Assessor Assem failed to specify whether the observations related to either the left or right fist. Furthermore, the Medical Assessor failed to specify the actual ranges of motion demonstrated by the Claimant on all of the tests conducted on her fist and did not provide reasons why these ranges were or were not accepted.
(i)his reference by analogy to mild crepitations of the AC joint in his assessment of whole person impairment for the right upper extremity.
(b)   The Medical Assessor failed to comply with clause 6.50(c) of the Motor Accident Guidelines in his assessment of WPI for the right upper extremity.
(c)   The Medical Assessor provided inconsistent reasoning for his findings of impairment relating to the cervical spine.
(i)The insurer submitted the reasoning provided by Medical Assessor Assem relating to non-verifiable radicular symptoms in the cervical spine is inconsistent with his recorded observations of spinal dysmetria. The Medical Assessor did not refer to any radicular symptoms in the cervical spine. Similarly, the Medical Assessor failed to refer to the spinal dysmetria he observed earlier in his examination.
(d)   The Medical Assessor failed to take into account a relevant consideration, namely pre-existing degenerative conditions, in accepting causation of the claimant's cervical spine symptoms.
(i)Medical Assessor Assem relied on the CT cervical spine scan dated 2 October 2019 in coming to his conclusion regarding causation of the Claimant's ongoing cervical spine symptoms. However, he failed to consider the degenerative disc disease evidenced in the CT cervical spine report dated 2 October 2019 and discussed its bearing on the claimant's ongoing symptoms in paragraph 21 of his Certificate.

Claimant’s submissions

Ms Abraham provided written submissions in reply dated 4 July 2023 in respect of the Review. The submissions are summarised below.
On 2 May 2023, the claimant filed submissions with the Commission relating to an obvious error. The error referred to by the claimant was merely a rounding error as Medical Assessor Assem erroneously rounded the claimant’s right upper extremity impairment (RUEI) from 2.5 to 2 instead of 3 as per the Guidelines.
In accordance with paragraph 77 of Procedural Direction PIC 7, the certificate was referred to Medical Assessor Assem to correct the obvious error and in accordance with paragraph 78, a replacement certificate was issued by Medical Assessor Assem and shared with the parties on 12 May 2023 with the corrected rounding of RUEI of 3 which resulted in a final whole person impairment of 11%.
Medical Assessor Assem’s certificate was shared with the parties on 3 April 2023 and the claimant submits the insurer is now alleging that there is a material error as it is dissatisfied with the outcome of the replacement certificate following the correction of an obvious error.
The claimant submitted that the insurer’s application was made substantially late, without an extension sought at the time of filing, nor explanation for the delay, nor compliance with any of the requirements under paragraphs 35 and 36 of Procedural Direction PIC7 having been satisfied.

Alleged error 1: clear path of reasoning

Ms Abraham submitted that Medical Assessor Assem was best placed to make the determination and provided a clear path of reasoning as to why the assessment was carried out by way of analogy to mild crepitations of the right acromioclavicular (AC) joint. This was recorded in the insurer’s submission at paragraph 13 where the insurer quoted Medical Assessor Assem setting out his actual pathway of reasoning, that is, that the reasons “[record] the steps that were in fact taken at arriving at that result”.
Medical Assessor Assem was best placed to perform the assessment given the plethora of evidence before him and the claimant submits there was no indication through the certificate that Medical Assessor was incorrect in a material respect.

Alleged error 2: compliance with clause 6.50(c) of the Motor Accident Guidelines

Ms Abraham submitted that clause 6.50 should be read as a whole and that clause 6.50(d) of the Motor Accident Guidelines stipulates that: “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)”.
Accordingly, as Medical Assessor Assem noted an inconsistency in range of motion, it was not a valid parameter for impairment evaluation and Medical Assessor Assem and the claimant reiterates that Medical Assessor Assem clearly set out in his certificate why range of motion was not used and how he assessed impairment instead.

Alleged error 3: inconsistent reasoning

Ms Abraham submitted there was no inconsistency and Medical Assessor Assem found the following [radicular] symptoms under the heading:
Current symptoms:
“Ms Abraham reports intermittent neck discomfort radiating to her right shoulder, dorsal aspect of her right arm, sometimes right forearm and right third, fourth and fifth digits. There was no associated paraesthesia or weakness. She considered that her left shoulder to be normal.”

Alleged error 4: failure to take into account a relevant consideration

The claimant submitted that Medical Assessor Assem took into account all the relevant considerations, completed a thorough assessment of all of the documents in the application and reply and specifically reproduced the subject report in his certificate. This is clear evidence that the information was considered by Medical Assessor Assem in his certificate.

MEDICAL EVIDENCE
Ambulance report dated 20 September 2019

An ambulance attended the scene of the accident, the following report was provided:
“CT 51 yr old female driver in low to medium speed MVA where a car turned in front of them. The collision speed was approx 30kph, nil airbags deployed, and a seatbelt was worn. O/A pt seated in the driver’s seat, front door open, pt c/o painful R hand / wrist and painful sternum. Pt able to self-extricate with assistance standing and then sits on stretcher. O/E nil deformity of obvious trauma to R hand / wrist and pt is moving the limb with caution. Pt c/o 8/10 sternal pain hat increases with movement / palpation. Pt cannulated and low dose of morphine given with good effect. Pt Tx to BDH for further Ix and Rx.”
In ‘secondary survey’, the ambulance electronic medical record further provided:
“Sternum pain described as aching denies radiation & aggravated by coughing & movement & palpation; Right Hand pain described as aching denies radiation & aggravated by coughing & movement & palpation; Right Wrist pain described as aching denies radiation & aggravated by coughing & movement & palpation; Pain Assessment Wong Baker Scale 8.”

Blacktown Hospital discharge summary

On Ms Abraham’s discharge summary, the section ‘progress in hospital’ contained the following:
“51 years old female presented to ED after a MVA
Xray of the chest, sternum and right wrist shows no acute changes”.

Dr Dryson, occupational physician, dated 5 April 2022.

Dr Evan Dryson examined Ms Abraham by video means on 5 April 2022. His report contained the following diagnosis:
“1.     Aggravation of cervical spondylosis with possible right C6 nerve root compression (radiculopathy);
2.      Fracture of right fourth metacarpal;
3.      Aggravation of low back pain and,
4.      Subsequent unrelated L4/5 disc protrusion proceeding to surgery with secondary perineural fibrosis.”

He further commented that:
“It is my opinion that the subject accident did cause aggravation of pre-existing cervical spondylosis with a possible right C6 radiculopathy. It did cause a fracture of the fourth metacarpal of the right hand which has subsequently healed but which does cause some residual symptoms. It did aggravate pre-existing low back pain but this has been subsequently overshadowed by the development of L5 radiculopathy, requiring L4/L5 discectomy.”

Application for Personal Injury Benefits (PIB) dated 9 October 2019

Ms Abraham filled in the PIB form, which contained her description of the injuries she received as result of the accident:
“…my right hand (ring finger) has a metacarpal fracture”.

Email from Carolyn Frewer, occupational therapist

Ms Frewer attended Auburn Hospital outpatient clinic with Ms Abraham on 27 November 2019, she noted:
“The doctor advised Rennay today:
·she can stop wearing the right-hand half-splint and support
·x-ray that was completed a few weeks ago shows union of fracture – no repeat X-ray requested today
·more physiotherapy treatment is required and the hospital doctor needs grip strength and range of movement measurements from the Blacktown Hospital Physiotherapist in the next 2 weeks
·return for a further Auburn Hospital doctor review (with above measurements) on 11/12/2019 at 11am; when direction will be given.
Rennay mentioned today still having some continuing pain over the 4th digit as well as 2nd and 3rd digits of the right hand, with restricted range of movement. The hospital doctor mentioned that he feels this is to do with the area being stiff and needing further movement/physiotherapy treatment. These symptoms will be reviewed again in 2 weeks with the physiotherapist input.”

Certificate of Capacity completed by Dr Lalji dated 8 October 2019

On 8 October 2019, Dr Lalji provided a diagnosis of “metacarpal fracture, right hand”.

Dr Tait, neurosurgeon, report dated 30 April 2021

Ms Abraham’s general practitioner (GP) made her a referral to Dr Matthew Tait (neurosurgeon) on 4 January 2021, following complaints of “lower back pain”.
On 6 April 2021, Dr Tait proceeded to perform a left L4 nerve root surgical decompression that was successful in reducing the intensity of her symptoms.
Dr Tait, in a report dated 30 April 2021 noted that the operation was complicated by inadvertent durotomy that was managed with flat bedrest. In his report dated 23 February 2021, he noted that she had a long history of back pain but over the last three months, she had been experiencing left-sided lower limb pain which radiates down the posterior aspect of the thigh, the lateral aspect of the calf and the dorsum of the foot consistent with L5 radiculopathy.

Medical certificate, 9 October 2019

The medical certificate provided by Auburn Hospital stated, “cannot use right hand for lifting”.

Chest X-Ray dated 20 September 2019

A chest X-ray performed at Blacktown Hospital reported:
“The heart size was normal. The lungs appear clear. No free abdominal gas was seen.”

Right wrist X-Ray dated 20 September 2019

Blacktown hospital conducted an x-ray of the right wrist:
“There is an undisplaced fracture at the head of the fourth metacarpal. No other fracture is identified.”

Sternum X-Ray dated 20 September 2019

Blacktown Hospital further performed a sternum X-ray:
“The lateral radiograph of the sternum shows no acute fracture. No definite bony injury can be seen. Bony alignment is within normal limits.”

Chest X-Ray dated 1 October 2019

A chest X-ray completed at Blacktown Hospital noted: “The heart size was normal. The lungs appear clear.”

Right hand X-Ray dated 1 October 2019

The right-hand X-ray, performed at Blacktown Hospital reported:
“A nondisplaced fracture through the base of the fourth metacarpal bone is suspected. Clinical correlation is required. The articular surfaces are intact. The alignment is maintained. No other fractures identified.”

CT chest dated 1 October 2019

The chest X-ray, performed at Blacktown Hospital reported:
“Conclusion: No evidence of rib fracture demonstrated especially on the left. The lung parenchyma is normal bilaterally. The previously demonstrated linear atelectasis at both lung bases have mostly re-expanded.”

CT cervical spine dated 2 October 2019

The CT scan, performed at Blacktown Hospital reported:
“Findings: There is moderate C5/6 and mild C6/7 degenerative disc disease. There is moderate narrowing of the right C4/5 intervertebral foramen. At C5/6, there is marked right foraminal stenosis suspicious for right C6 nerve root impingement. Alignment is within normal limits. No dislocation or fracture seen. No evidence of herniation or central canal stenosis or cord compression. Paravertebral soft tissues unremarkable. Lung apices clear. Conclusion: No fracture identified.”

Right hand X-Ray dated 11 December 2019

The right-hand X-ray, performed at Auburn Hospital reported:
“When compared with the prior study dated 6 November 2019, the oblique / spiral fracture through the shaft of the fourth metacarpal is poorly seen, compatible with the healing process. Alignment is near anatomic. Fracture callus evident compatible with the healing process.”

CT lumbar spine dated 27 December 2020

The CT, performed at Blacktown Hospital reported:
“Conclusion: Small to moderate sized L4-5 disc protrusion with mild narrowing of the bilateral lateral recesses may impinge upon the traversing bilateral L5 nerve roots. This could be further assessed with MRI. No fracture.”

Bone scan dated 10 February 2021

The bone scan was reported by Dr Ali Atabaki:
“Conclusion: Mild uptake at the right sacroiliac joint may represent mild (degenerative) sacroiliitis. No inflammatory component demonstrated in early phase images. No evidence of active facet arthropathy or marked degenerative arthropathy at the discovertebral joints of the lumbosacral spine. Moderate degenerative arthropathy noted at the right and to a mild extent left patellofemoral compartment.”

MRI Lumbar Spine dated 19 May 2021

Ms Abraham attended an MRI of the lumbar spine, which was reported by Dr Yang Sim:
“Conclusion: Recent left L4/L5 hemilaminectomy and discectomy noted. There is granulation tissue seen at the posterior surgical bed, extending towards the left epidural space at this level. This granulation tissue is surrounding and slightly distorting the descending left L5 nerve root and is likely causing a degree of nerve root entrapment. Possible element of early perineural fibrosis. I suspect this is the primary cause of ongoing left lower limb symptoms. No conjoined nerve roto identified at any level.”

THE REVIEW PANEL

At the first Panel meeting on 30 November 2024, the Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to the motor accident.

The Review Panel’s examination

Medical Assessor Couch conducted an examination of Ms Abraham on 18 April 2024, on behalf of the Review Panel.
Ms Abraham was examined in the presence of her husband, over a period of 90 minutes.

Past medical history and occupational history

Ms Abraham confirmed that she had started working for Woolworths in May 2019. She explained that she was part of a roving stocktaking/audit team and was employed on a casual basis, usually working 30-35 hours per week. She said that typically the team would visit each store about annually, although sometimes more often if the store seemed to be having stock keeping problems. Much of the work consisted of scanning and counting items on the supermarket shelves. She normally drove herself to the store in question.
She went on to explain that because of injury sustained in the accident on 20 September 2019, she was unable to work at all until January 2020. She said this was because of widespread pain including in her neck and chest, and also the fact that for some time her right hand was immobilised in a splint, and she could not use it much. From her description it seemed that she was still on somewhat restricted duties, and she submits a medical certificate from her GP every six months. She has apparently been certified unfit to work in freezers or cold rooms because this causes increased pain, particularly in her neck and back. Both Ms Abraham and her husband added the information that her boss had been extremely supportive in helping her to stay at work within her restrictions.
Prior to the subject accident, Ms Abraham said that she had had some low back pain, without an obvious injury or incident. She had consulted her GP but not seen any specialist for that. She said pain was fairly intermittent and she had just been advised to take simple analgesics such as Panadol. She denied any previous motor vehicle accidents or musculoskeletal symptoms in other body areas. Later in the assessment she also mentioned that she had been subject to depression at times in the past.

History of the motor accident

Ms Abraham said that at approximately 5.00pm on 20 September 2019, she was driving her 2014 Toyota Corolla with her daughter as a front seat passenger. She was wearing a seatbelt. She was crossing traffic lights on a green light in Quakers Hill in a 60kmph zone. She said that she would have been driving at less than the limit. A vehicle travelling in the opposite direction turned right into her path and struck the right front part of her car. She could not recall the car as having been pushed sideways. Her car was quite badly damaged and was not driveable, was towed away and subsequently written-off by the insurer.

History of symptoms and treatment following the motor accident

Ms Abraham recalled going forwards against the seatbelt and being out of breath from the pressure of the seatbelt – she said that later she developed bruising across her chest. She also thought she had struck her right shoulder on the inside of the car. Her right hand was very sore from impact with the steering wheel and subsequently developed persistent swelling. She was taken by ambulance to Blacktown Hospital Emergency Department. She recalled having an X-ray for her painful right hand and being told that she only had bruising.
The ambulance officer’s report estimated the collision speed as approximately 30kmph. Ms Abraham was complaining of pain in the right hand and wrist and sternum. The Blacktown Hospital documentation also described pain in the right hand and chest. Examination of the right upper limb described:
“…tenderness in the right wrist. No swelling. ROM limited due to pain, no neurovascular deficits.”
Tenderness was described over the chest wall, particularly over the sternum. There was no mention of other symptoms and no recorded examination of the shoulders or cervical spine. The hospital notes stated that Ms Abraham said that she was driving at 40-50kmph. The Review Panel also noted “neck, no abnormality detected.”
Ms Abraham returned to Blacktown Hospital Emergency Department on 1 October 2019 and was kept overnight. The discharge referral stated that she had been referred back by her GP for ongoing chest and right arm pain. She was also complaining of neck pain. Examination showed tenderness over the anterior chest and swelling over the dorsum of the right hand. X-rays showed an undisplaced fracture of the fourth metacarpal of the right hand. CT scan of the cervical spine was reported to show moderate degenerative disc disease at C5/6 and mild changes at C4/5 and C6/7, with moderate narrowing of the right C4/5 intervertebral foramen and more marked foraminal stenosis on the right at the C5/6 level. No fracture was seen. CT scan of the chest and upper abdomen was reported to show no evidence of rib fracture. The examiner noted that:
“…the previously demonstrated linear atelectasis at both lung bases have mostly re-expanded.”
(These changes of atelectasis could have been caused by her taking shallower than normal breaths, because of chest pain since the accident.)
Ms Abraham was discharged with analgesia, a splint to the right hand and for follow up at Auburn Hospital and physiotherapy.
Ms Abraham confirmed that her neck had been painful immediately after the accident. When I asked her about her right shoulder, she replied “I was just sore all over.”
The first entry seen from her usual GP, Dr Lalji, was dated 8 October 2019:
“RTA two weeks ago – injury RT arm – to see hand surgeon tomorrow – third party – also has high cholesterol and TG. Metacarpal fracture and soft tissue injury, third party form filled, see scan.”
At subsequent attendances with Dr Lalji in 2019 and 2020, there was mention of non-related issues. No mention was seen of either shoulder.
Medical Assessor Couch asked Ms Abraham why she was off work for a considerable period. She said this was because of pain in her neck, chest and hand and also the fact that she could not work with her right hand in a splint. An initial needs assessment report, dated 3 December 2019, from Carolyn Frewer, occupational therapist and rehabilitation consultant, addressed to NRMA Insurance, noted:
“She remained in bed for a few days due to pain, and approximately five days after, she returned to work to attempt a stock-take shift; however, she could only endure one hour due to increased right hand and chest pain. She subsequently returned to Blacktown Hospital due to right hand and neck pain, scans were completed and she was then diagnosed with a fractured right fourth metacarpal and chest bruising.”
She had subsequently seen a specialist at Auburn Hospital for her hand and had physiotherapy. At initial rehabilitation assessment on 22 November 2019, Ms Abraham was describing pain in the right hand. The Review Panel noted an examination by Ms Frewer:
·        “Neck and bilateral shoulder range of movement within normal limits.
·        Left (dominant) hand within normal limits.
·        Right hand limitation to second-fourth fingers – limited range of movement, limited ability to make a fist.
·        Lumbar flexion to reach feet in sitting.
·        Full squat.”
It was noted that her GP, Dr Lalji, currently certified her fit for suitable duties eight hours a day, three days per week but with a 1kg lifting restriction with the right hand. It was stated that no light/suitable duties were available at her workplace and that she was not to work until she had a certificate as fully fit.

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

Ms Abraham did not describe any further actual accidents but said that in December 2020 she noticed low back pain and pain in her left lower limb after washing her car. She was diagnosed with an L4/5 disc protrusion. She was treated by Dr Matthew Tait, neurosurgeon. An initial periradicular injection gave partial relief for 24 hours. Dr Tait proceeded to left L5 nerve root decompression at Nepean Private Hospital on 6 April 2021. This was complicated by an initial cerebrospinal fluid (CSF) leak which settled with bed rest. (Ms Abraham said that she had paid herself for this procedure, as she did not have private health insurance.) At follow up on 30 April 2021, Dr Tait recorded significant but incomplete improvement in her symptoms.

Current status

Medical Assessor Couch asked Ms Abraham what symptoms she still related to the accident in 2019. She complained of stiffness and pain in the neck, with radiation to the right shoulder and upper limb, right down to her hand, and pain in the right hand. She said that chest symptoms had resolved. She thought that her symptoms had been unchanged recently. She also mentioned anxiety, particularly while driving. She went on to describe current symptoms in more detail as follows:

Neck

Ms Abraham described pain, pointing to the back of her neck and more to the right side. She described a constant dull ache which becomes worse at times. She never had completely pain-free days. The pain was worse in the cold. She said that it did not vary very much at work and her neck did not feel better with activity/movement. Rotation is more difficult to the right and she needed to turn her whole trunk to look to the right. Medical Assessor Couch asked her if she had to look up much to high shelves or down to low ones at work; she said that she did not have to do this very much.
Neck pain radiated to the region of the right trapezius muscle and shoulder and down the extensor aspect of the right arm and forearm to the hand-mainly to the lateral three fingers. She had some tingling in the lateral fingers of the right hand.
She also complained of pain and restricted range of movement in the right shoulder – while describing this she demonstrated a full and free range of movement in the left shoulder. She could not lie on her right side in bed, although on questioning it seemed that right shoulder pain was not waking her from her sleep. She added the fact that she had always been a poor sleeper.
Ms Abraham went on to state that although she was in pain at work, she did not want to stop work and sit at home as she might get even worse there.

Right hand

She described pain in the region of the fourth metacarpal and said it is also painful to make a fist with her right hand.

Low back pain

Medical Assessor Couch also asked her about her low back. Ms Abraham did not think that the car crash had caused low back pain. She said that she still got some intermittent low back pain, but not every day, and that the left lower limb symptoms had resolved.

Current treatment

Ms Abraham took two Nurofen in the morning and sometimes two at night – she tried to avoid them during the day. She occasionally took Endone but tried to avoid this because of sedation.

Lifestyle factors

Ms Abraham said that she was trying to quit smoking but still smoked about five cigarettes a day. She only drank alcohol very occasionally.

Physical examination

Ms Abraham presented as a rather quiet, slightly overweight middle-aged woman, at height 162cm and weight 78kg. She appeared to be somewhat low in mood (her husband added that there was a past history of depression). She appeared to be of only average intelligence and was not particularly analytical of her symptoms. However her presentation appeared to be straightforward, she did not appear to exaggerate symptoms and, if anything, Medical Assessor Couch thought she might understate some of these. He noted that she became a little more animated in her responses as the assessment progressed. During the examination she was fully cooperative and showed good effort, with no evidence of self-limitation, abnormal pain behaviours or inconsistency.
She was wearing jeans, a loose top, socks and sneakers. Footwear was removed but examination was satisfactory with her other clothes on. She was able to sit during the interview, climb on and off the examination couch to lie supine, and sit up on the couch from the supine position.

Cervical spine

On examination, Medical Assessor Couch found there was a slight tendency to forward protrusion of the head and neck (“poke neck”). There was no report of tenderness to palpation over the posterior cervical spine, but the right trapezius muscle was tense and tender to palpation, whereas the left was soft and non-tender – thus there was muscle guarding. Cervical spine flexion was full, but extension was restricted to two-thirds of normal. There was also asymmetry of cervical spine rotation and lateral flexion – both were full to the left but lateral flexion was half to the right, and rotation was half to two-thirds of normal to the right. Symptoms described in the right upper limb were not typical of non-verifiable radicular complaints. As demonstrated below under “Upper extremities”, there were no objective signs of cervical radiculopathy. The positive signs found in the cervical spine were muscle guarding and dysmetria.

Lumbosacral spine

There was slight tenderness to palpation over the lumbar spine. There was no detectable muscle guarding. Flexion was within normal limits whereas extension was half of normal. Lateral flexion was full to the right but one-third of normal to the left. She was not describing non-verifiable radicular complaints in the lower limbs and examination of the lower extremities (see below) showed no objective signs of lumbosacral radiculopathy. Thus, the only positive sign in the lumbar spine was dysmetria.

Upper extremities

Her hands were clean and soft with no callouses. The right upper arm measured 33cm and the left (dominant in her case) measured 34cm. The right forearm measured 24cm, the left 23.5cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Sensation was normal in both upper limbs. Grip strength was normal on the left, but effort was reduced during grip strength testing on the right. Power of intrinsic muscles was normal bilaterally and there was no detectable weakness in either upper limb.
Examination of the shoulders showed tenderness over the tense right trapezius muscle, but not over the glenohumeral joint (shoulder joint proper) on the right. There was no tenderness on the left. Active range of movement (AROM) of each shoulder was measured carefully with a goniometer with repetition. The range was completely normal on the left apart from minimal restriction of flexion to 170 degrees, without any pain. On the right there was moderate restriction of AROM, with some improvement in flexion and abduction on repetitive testing. (On discussion, Ms Abraham thought that she had “warmed up” to some extent with repetition.)

Right Left

Flexion 100° - increasing to 140° 170°

Extension 30° - unchanged 50°

Abduction 110° - increasing to 120° 170°

Adduction 20° - unchanged 40°

External rotation 60° - unchanged 90°

Internal rotation 50° - unchanged 80°

Impingement signs were positive in the right shoulder and negative in the left.
There was tenderness to palpation over the dorsum of the right wrist, hand and fourth metacarpal joint. The left wrist showed an essentially full AROM whereas there was moderate restriction on the right, as tabulated. AROM was measured with a goniometer.

Right Left

Flexion 40° 60°

Extension 30° 50°

Ulnar deviation 30° 30°

Radial deviation 10° 20°

Lower extremities

Both calves measured equally in girth at 34cm. Knee jerks and ankle jerks were normal and symmetrical and both plantar responses flexor (normal). Straight-leg-raising was full and pain-free on the right at 60 degrees. On the left it was slightly restricted to 50 degrees with some tightness in the hamstrings, but no radicular pain reproduced. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal and symmetrical. Light touch was preserved bilaterally.
Of functional activities, Ms Abraham walked with a normal gait. She could take a few steps with weight on the balls of her feet and heels off the floor, and then walking on her heels with forefeet off the floor. She was able to squat halfway to the floor and then recover without needing hand support.

Conclusions following physical re-examination, consideration of the submissions and other materials
Cervical spine

The insurer submitted that the Medical Assessor failed to take into account the pre-existing degenerative conditions, in accepting causation of the claimant's cervical spine symptoms.
The insurer further submitted the reasoning provided by Medical Assessor Assem relating to non-verifiable radicular symptoms in the cervical spine was inconsistent with his recorded observations of spinal dysmetria.
The Review Panel considered the pre-accident history, the history of the motor accident and the relevant medical history, treatment, radiological imaging, and the results of the physical examination in order to address the matter of causation according to clause 6.6 of the Guidelines.
The Review Panel considered it significant that Ms Abraham was involved in a moderate severity frontal crash in which her five-year-old car was subsequently written-off. She was taken by ambulance to Blacktown Hospital and sent back there about two weeks later by her GP because of persistent symptoms.
The Review Panel further considered Ms Abraham’s presentation to Blacktown Hospital Emergency Department on 1 October 2019, where she was kept overnight. The discharge referral stated that she had been referred back by her GP for ongoing chest and right arm pain. She was also complaining of neck pain.
It was significant that the initial injuries documented included chest pain and seatbelt bruising, a fracture to the fourth metacarpal of the right hand (with probable related injury to the wrist), and a whiplash injury to the cervical spine. She reported that her airbag did not activate and there was a potential for direct injury to the right shoulder, either by being thrown forward against the seatbelt and/or striking the inside of the car – it is noted that the ongoing car which turned across her path hit the right front part of her vehicle. However, there was no contemporaneous documentation of injury to the right shoulder.
She was off work from her position doing stocktaking for Woolworths for three or four months (although she tried unsuccessfully to return to work a few days after the accident). She had since managed to return to work and sustain this, despite reported ongoing symptoms in the neck and right upper limb.
The consideration of whether or not there were clinical signs justifying a determination that there was WPI in accordance with the guidelines, the Review Panel must take into account the examination on the day and on this day, the examination of Ms Abraham observed by Medical Assessor Couch showed guarding and dysmetria in the cervical spine, classified as diagnosis-related estimate (DRE) Cervicothoracic Category II.
The Medical Assessor gave careful consideration to the Insurers submission at [47] above and paid particular attention as to whether or not his observations of spinal dysmetria were consistent, and was well satisfied that they were, as was the evidence of guarding.

Right upper extremity

The insurer further submitted that the Medical Assessors reference by analogy to mild crepitations of the AC joint in his assessment of whole person impairment for the right upper extremity is affected by material error:
(a) the Medical Assessor failed to comply with clause 6.50(c) of the Motor Accident Guidelines in his assessment of whole person impairment for the right upper extremity.
The Review Panel conducted a physical examination that showed restricted AROM of the right wrist, similar to that found by Medical Assessor Assem. Applying the tabulated range of movement above to Figures 26 and 29 of AMA 4 Guides, there is 10% upper extremity impairment for the right wrist and 2% for the left wrist (because left wrist flexion was slightly less than usual at 50 degrees. This gave a net right upper extremity impairment of 8%.
There was definite painful restriction of AROM in the right shoulder, with normal movement on the left (restriction on the right was rather less than found by Medical Assessor Assem and on this occasion, the left shoulder moved normally. It was noted that restriction of right shoulder flexion (140 degrees on best effort) was similar to the 150 degrees found by Dr Evan Dryson in his report of 5 April 2022. Abduction of 120 degrees was somewhat better than Dr Dryson’s measurement of 90 degrees.
Medical Assessor Couch concluded that the range of movement method could reasonably be used for assessing impairment of Ms Abraham’s right shoulder. Applying the tabulated range of movement above to Figures 38, 41 and 44 of AMA 4 Guides, there was 10% upper extremity impairment on the right and 1% on the left, leaving a net upper extremity impairment of 9%.
The above impairments for the right shoulder and right wrist would be combined to give 16% upper extremity impairment which converts to 10% WPI.
The Review Panel considered this issue as significant, noting that there was no definite evidence of direct injury to the right shoulder, whereas there was quite marked guarding and tenderness of the right trapezius muscle, it was considered safer to attribute restricted AROM in the right shoulder to the cervical spine injury (as per the Nguyen precedent).
Also, given that there was some variability in measured AROM, the Panel considered that it was preferable to assess impairment for the right shoulder by analogy. In this case, the Review Panel considered that the best analogy would be with mild crepitation of the glenohumeral joint. Referring to Tables 18 and 19 of AMA 4 Guides, mild crepitation of the glenohumeral joint gives 6% upper extremity impairment. Combining this with 8% upper extremity impairment for the wrist, there is 14% upper extremity impairment which in turn converts to 8% WPI.
Finally, 5% WPI for the cervical spine and 8% for the right upper extremity are combined to give a total of 13% WPI.

Determination

The Review Panel revokes the certificate of Medical Assessor Assem dated 3 April 2023, and substitutes the determination by certifying that the injuries caused by the accident gave rise to a permanent impairment of 13%.

Right	Left
Flexion	100° - increasing to 140°	170°
Extension	30° - unchanged	50°
Abduction	110° - increasing to 120°	170°
Adduction	20° - unchanged	40°
External rotation	60° - unchanged	90°
Internal rotation	50° - unchanged	80°

[2024] NSWPICMP 322

22 May 2024