Insurance Australia Limited t/as NRMA Insurance v Knezevic
[2023] NSWPICMP 265
•14 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Knezevic [2023] NSWPICMP 265 |
| CLAIMANT: | Srdan (Serge) Knezevic |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 14 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of whole person impairment (WPI); motor vehicle accident on 18 May 2017; Medical Assessor Rapaport assessed 13% WPI; injury to cervical spine; injury to both shoulders; Held – soft tissue injury to cervical spine assessed as diagnosis related estimate (DRE) Cervicothoracic Category I or 0% WPI; shoulder symptoms deemed resolved by physiotherapist as of July 2017; claimant returned to playing soccer; subsequent deterioration of shoulder symptoms in April 2019 not causally related to accident; soft tissue injury sustained to both shoulders caused by accident resolved with no assessable impairment. |
| DETERMINATIONS MADE: | Medical Assessment –Permanent Impairment Review Panel Certificate The Panel revokes the Certificate of Medical Assessor Adam Rapaport dated 8 July 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) of 0%: · cervical spine – soft tissue injury. · left shoulder – soft tissue injury (resolved), and · right shoulder – soft tissue injury (resolved). |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
On 18 May 2017, Srdan (Serge) Knezevic (the claimant) sustained injury in a rear end motor vehicle accident (the accident).
Insurance Australia Limited T/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
The medical dispute was referred to Medical Assessor Rapaport.
CERTIFICATE OF MEDICAL ASSESSOR RAPAPORT [2]
[2] AD2 p 12.
The following injuries were referred to Medical Assessor Rapaport for assessment:
· cervical spine – aggravation of degenerative changes;
· left shoulder – rotator cuff syndrome/radiation in the left shoulder, and
· right shoulder – rotator cuff syndrome due to accident/overuse.
Medical Assessor Rapaport noted Mr Knezevic had been actively involved in playing sport. He received physiotherapy treatment for right shoulder pain, diagnosed as bursitis in 2013. He had treatment for the right shoulder pain in May 2014 that was linked to increased training. In 2014 he slipped twisted his ankle and fractured the cuboid bone. In December 2015 Mr Knezevic had possible plantaris tendon strain while playing soccer. In August 2016 a soccer opponent collided heavily with Mr Knezevic impacting his right upper chest “winding him”. He had a suspected fractured upper right rib. In May 2017 Mr Knezevic required treatment for an Achilles tendon injury. It was also noted that doctors had documented a fall onto soft ground impacting both knees on 31 August 2020 and a further fall on 7 June 2021 resulting in painful swollen wrists. Medical Assessor Rapaport reported Mr Knezevic continued to play soccer in an over 35’s team.
Mr Knezevic complained of pain in the shoulders on activity, and of neck pain and stiffness only at extremes of neck rotation. He also had pins and needles in the left upper arm and in the fingers of the left hand, lasting for only brief periods of time.
On examination Medical Assessor Rapaport noted cervical rotation movements, lateral flexion to the left side and active next extension were all reduced by ¼. Neck flexion was reduced by ½. He found dysmetria in relation to asymmetrical cervical spine movements to be present. Sensory testing was normal, muscle strength was normal and arm circumferences were equivalent. Tendon reflexes were present, normal and symmetrical.
He noted there had been continuing and unabated presence of symptoms of cervical spine dysfunction over a five year period since the accident with asymmetrical neck movements and intermittent non verifiable radicular symptoms of pins and needles in the proximal left upper extremity and projecting distally down the arm. He assessed the claimant as DRE (Diagnosis -Related Estimates) cervical category II resulting in a 5% whole person impairment (WPI).
Medical Assessor Rapaport recorded range of shoulder movement as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 110° Extension 30° 30° Adduction 50° 50° Abduction 120° 100° Internal Rotation 20° 20° External Rotation 80° 80°
Medical Assessor Rapaport found restriction of movement of the left shoulder gave rise to 8% WPI and restriction of movement of the right shoulder to 7% WPI. He found there was a pre-existing right shoulder sub-deltoid bursitis prior to the accident but the accident aggravated and contributed to the advancement of degenerative changes in the right shoulder. Whilst the left shoulder had no pathology identified prior to the accident Medical Assessor Rapaport noted Mr Knezevic had sustained injuries on the sporting field similar to that which occurred to the contra-lateral right shoulder. He concluded the accident caused and contributed to worsening of the impairment in the left shoulder. He was satisfied causation was satisfied in respect of both shoulders but reduced the assessment of WPI by 50% to arrive at a 4% WPI for each shoulder.
Medical Assessor Rapaport concluded the following injuries were caused by the accident and gave rise to a WPI of 13%:
· soft tissue injury to the cervical spine with aggravation of previously undiagnosed multi-level cervical spondylosis and C 5/6 bilateral foraminal stenosis;
· onset of degenerative changes right shoulder, and
· onset of degenerative changes left shoulder.
Medical Assessor Rapaport concluded the following injuries were not caused by the accident:
· focal partial detachment of posterior glenoid labrum left shoulder;
· left long head of biceps tendinosis;
· acromio-clavicular degenerative changes left shoulder;
· rotator cuff injuries to right and left shoulder, and
· multilevel spondylosis of cervical spine with bilateral foraminal stenosis.
Medical Assessor Rapaport concluded the following injuries had resolved:
· soft tissue strain injury to cervical spine secondary to a whiplash acceleration-deceleration) injury, and
· the musculo-ligamentous cervical strain injury has resolved however the impact of the motor vehicle accident injury on the degenerative cervical spine with extensive spondylosis and bilateral foraminal stenosis at C5-6 is continuing.
REVIEW PROCEDURE
The insurer filed an application for review of the medical assessment of Medical Assessor Rapaport on 17 August 2022.
On 2 December 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[4]
[4] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[7]
MATERIAL BEFORE THE REVIEW PANEL
[7] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 1 February 2023 (the first Direction) which required each party to file an indexed, paginated bundle of documents upon they relied for the review.
In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 353 and marked AD2. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 27 and marked AD3.
Mr Knezevic is now 57 years of age and was 51 years of age at the date of accident on 18 May 2017.
Motor Accident Personal Injury Claim Form
In the form dated 25 May 2017 Mr Knezevic reported he sustained soft tissue/strain injuries to the neck, head, shoulders and left arm.[8]
[8] AD2 p 52.
On 31 May 2017 Dr Espinosa, general practitioner (GP) completed the medical certificate which accompanied the claim form.[9] She described the injuries as:
“Whiplash Grade II, referred arm pain both sides, pins & needles left arm, mild weakness Rt hand persistent”.
Treating medical records
Pre-accident treating records
[9] AD2 p 45.
The clinical records of St George Physiotherapy confirmed the claimant had pre-accident issues with his knees and right shoulder.
On 17 January 2013 an X-ray of both knees on a background of a medial ligament strain confirmed there were no significant knee joint effusions. There were bony spurs at the insertion of the quadriceps tendon to the patella. The medial tibiofemoral compartments were mildly narrow bilaterally. The patellofemoral joints bilaterally appeared normal. No loose bodies were seen.
The claimant also attended St George Physiotherapy on 29 January 2013 when he experienced a gradual onset of right shoulder pain.[10] He attended in respect of right shoulder pain on 30 May 2014, and on 13 June 2014.
[10] AD2 p 180.
The claimant next attended St George Physiotherapy on 15 December 2015 in relation to right calf pain injured playing soccer.
On 4 August 2016 Mr Knezevic saw Dr Espinosa with rib pain after getting struck in the upper chest playing soccer.
Post-accident treating records
The accident occurred on 18 May 2017.
On 19 May 2017 Mr Knezevic attended Dr Espinosa, of South Hurstville Family Practice.[11] She recorded he was hit from behind at high speed, the back of his car was crushed, and the front of the other vehicle crumpled. Dr Espinosa noted that in the accident, the claimant was thrust forward and hit the back of his head on the headrest. He had limited abduction in his neck, weak EPL (extensor pollicis longus muscle) on the left side with hyper-reflexia on that side but no abnormality detected with shoulder strength. Dr Espinosa diagnosed whiplash-associated disorder grade and referred Mr Knezevic to St George Physiotherapy.
[11] AD2 p 51.
On 24 May 2017 the St George Physiotherapy recorded the following history:
“6/7 ago hit from behind in MVA – car written off, headaches & L shoulder P +/- L arm pain when lying on LHS”.[12]
[12] AD2 p 164.
On 29 May 2017 Tim Foulcher of St George Physiotherapy reported after two sessions of physiotherapy Mr Knezevic had improved range of movement in rotation and lateral flexion, reduced frequency and intensity in left arm pins and needles and restoration of usual left arm tricep jerk. Treatment had consisted of soft tissue and joint mobilisation and dry needling to the upper cervical and cervico-thoracic areas.[13]
[13] AD2 p 194.
On 31 May 2017 Dr Espinosa reported Mr Knezevic had improved with physiotherapy, although she reported right grip weakness and restricted rotation to left and abduction bilaterally.
On 14 June 2017 Mr Foulcher reported Mr Knezevic was feeling better with no obvious weakness, no neck pain or headaches and only one minor episode of pins and needles in the past week.[14] He stated objective examination revealed:
· full ROM (range of motion) restored, mild pain with extension only;
· normal upper limb strength and reflexes, and
· mild unilateral pain at C3.
[14] AD2 p 83.
By 14 June 2017 Dr Espinosa reported the pins and needles had resolved but reported persistent weakness in the right hand and the right EPL.[15] Dr Espinosa reported Mr Knezevic could return to work without restrictions and cautiously return to soccer.
[15] AD2 p 52.
On 21 June 2017 the physiotherapist reported Mr Knezevic had played soccer on the weekend. It was reported “ongoing pain only mild morning stiffness … mild R sided CSp/shoulder pain”.[16]
[16] AD2 p 168.
On 12 July 2017 Tim Foulcher reported Mr Knezevic had had no neck pain or stiffness over the past two weeks. He considered no further treatment was required and cleared Mr Knezevic for a full return to sport without restriction.[17]
[17] AD2 p 80.
On 22 January 2018 the records of St George Physiotherapy record a one week history of elbow pain worsening in the last three days on the background of a car accident causing pain in the left arm.[18] On 7 March 2018 it was reported 1/10 elbow and left knee symptoms including quad tightness. He attended for treatment for the right elbow on 14 March 2018 and on several occasions thereafter.
[18] AD2 p 170.
On 27 April 2018 Mr Knezevic saw his GP for pain in the right knee after playing soccer.[19]
[19] AD2 p 95.
On 21 July 2018 Mr Knezevic attended remedial massage for his legs, his calves and the upper back. The background was recorded as “plays soccer, travelling in 3 weeks’ time back to Croatia, sales job”. Things to work on were described as “ITB issues, posture, R shoulder – ROM extended arms above head, R neck rotation, PECS – extremely tight, Traps”.[20]
[20] AD2 p 177.
On 4 April 2019 Mr Knezevic sought review by Dr Beshara GP of South Hurstville Family Practice in respect of ongoing left arm paraesthesia, which was triggered by immobility, or it he slept on his shoulder, and whiplash with possible radiculopathy. Dr Beshara referred the claimant for an MRI of the cervical spine and left shoulder.
On 4 April 2019 Dr Beshara referred to litigation arising out of the accident noted the claimant required a doctor’s review and imaging as appropriate.[21] He reported ongoing left arm paraesthesia, full active range of motion, nil cervical spine tenderness, headaches, left arm paraesthesia triggered by immobility or if he sleeps on his shoulder. On examination Dr Beshara reported:
“NVID
Full passive ROM
Active ROM to 90 degrees
Weakness on supraspinatus and subscapularis tensing
Sensation +++
DPP++
Median/ulna/radial nerve intact.”
[21] AD2 p 99.
Dr Beshara suggested cervical radiculopathy and rotator cuff tendinosis. On 24 April 2019 Dr Beshara referred to chronic neck pain and adhesive capsulitis on the left side.[22]
[22] AD2 p 100.
On 17 January 2020 Dr Beshara reported Mr Knezevic needed an MRI for insurance purposes. He reported left arm paraesthesia and referred the claimant for an MR of the cervical spine and both shoulders.[23]
[23] AD2 p 123.
Records of Formation Physio Hurstville document attendances on Paul Bellamy, physiotherapist in respect of knee pain after playing soccer on 9 September 2020, on 17 September 2020, on 23 September 2020, on 30 September 2020, on 7 October 2010, on 21 October 2010 and on 4 November 2010.
On 16 June 2022 Mr Knezevic consulted Mr Bellamy in respect of pain in his right shoulder for the last five days.[24] He thought it may have been the result of playing tennis which he had been playing twice a week since November. Further attendances in respect of the right shoulder and neck were on 24 June 2022, 1 July 2022, and 19 August 2020 when he reported his neck and shoulder pain had been going well but he had noticed some tingling down through the right elbow and forearm.
Radiological investigations
[24] AD2 p 350.
MRI cervical spine, 11 April 2019[25] – the report concludes:
“Multilevel spondylotic changes most evident at the C5/6 level where there is bilateral neural foraminal stenosis.”
[25] AD2 p 147.
MRI left shoulder, 11 April 2019[26] – the report concludes:
“1. Subtle AC joint degeneration.
2. Mild rotator interval and intra-articular segment LHB tendinosis.
3. Focal partial detachment of the posterior glenoid labrum as detailed.
4. Features which could reflect a stage 3 (thawing) adhesive capsulitis in the appropriate clinical circumstance.”
[26] AD2 p 148.
MRI left shoulder, 21 January 2020[27] – the report concludes:
“1. Proximal long head of biceps tendinopathy and probable interstitial tearing.
2. Subtle labral tearing superiorly and posterosuperiorly consistent with a type 2B SLAP tear.
3. Mild acromioclavicular joint arthropathy.
4. Overall, morphology is similar to the previous MRI from April 2019.”
[27] AD2 p 153.
MRI cervical spine, 21 January 2020[28] – the report concludes:
“1. Morphology is similar to previous, with moderate to marked bilateral foraminal stenoses at C5-C6.
2. Posterior disc herniations and associated spurring at C5.5 and C5-C6 mildly indent and abut the cervical cord respectively, without abnormal cord signal to suggest the presence of myelomalacia.”
[28] AD2 p 155.
MRI left elbow, 22 January 2020[29] – the report contains the following comment:
“1. The appearance could best be explained by a median neuropathy at the mid-distal forearm without a nerve compressive lesion identified.
2. Small uncomplicated anconeus epitrochlearis.”
Medico-legal reports
Dr Tim Anderson, occupational physician
[29] AD2 p 157.
Dr Anderson provided a report dated 31 May 2019 after assessing the claimant on 21 May 2019.[30] He reported complaints of pain in the neck with radiation into the left arm and occasional pins and needles radiating down the left arm.
[30] AD2 p 227.
Dr Anderson reported neck pain radiating down into the upper thoracic spine and out through the para-cervical musculature towards the left shoulder complex. Forward flexion was about normal, extension and lateral flexion to each side were reduced to one third of the range and rotation movements were a little better than two thirds of the range.
Dr Anderson reported a normal range of movement of the elbows, wrists, hands and all digits. He recorded the following shoulder movements:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 90° Extension 50° 40° Adduction 50° 40° Abduction 180° 90° Internal Rotation 80° 60° External Rotation 80° 60°
Dr Anderson reported sensation to pinprick was slightly altered in the right hand and arm in a distribution which suggested minor involvement of the C7 and C8 nerve roots. Reflexes were normal and easy to demonstrate at the elbows (C5 and C7) and the at the wrists (C6).
Dr Anderson concluded the injuries were consistent with the description of the accident. He recommended Mr Knezevic undergo MRI scan investigation of the cervical spine and the left shoulder complex. He found Mr Knezevic had continuing dysfunction in the cervical spine placing him in the DRE Cervicothoracic category II with a 5% WPI. He assessed an 8% WPI from the restriction of movement of the left shoulder.
Dr Anderson provided a supplementary report dated 20 February 2020[31] following a review of the MRI scans undergone by the claimant.
[31] AD2 p 243.
Dr Anderson noted the MRI of the left shoulder disclosed an underlying pathology and recommended referral to a shoulder surgeon to address the SLAP tear.
Report of Dr Matthew Giblin, orthopaedic specialist
Dr Giblin assessed the claimant and provided a report dated 3 February 2020.[32]
[32] AD3 p 10.
Dr Giblin reported Mr Knezevic had problems with his neck and left shoulder. Craning activities such as writing or reading aggravated him or if he was on his laptop for any extended period. His left arm affected him with work above shoulder level. He was continuing to wake up at night with pain. Pins are needles were present and he had trouble lying on his left shoulder. Mr Knezevic was still not playing soccer.
Dr Giblin concluded Mr Knezevic was suffering from left rotator cuff problems. He noted the pins and needles in the left forearm seemed to be from above the elbow down to the fingers, yet the lesion seen on the scan was mid forearm so Dr Giblin though it was unlikely to be the cause of the pins and needles. He thought the pins and needles may be related to a brachial neuritis associated with the brachial plexus and the rotator cuff symptoms. The restriction of his right shoulder was due to the Nguyen principle.
Dr Giblin assessed the claimant has DRE cervical category II resulting in a 5% WPI for the cervical spine. He assessed the right shoulder as giving rise to a 1% WPI, and the left shoulder as giving rise to an 8% WPI, resulting in a total 14% WPI.
Report of Dr Machart, orthopaedic specialist
Dr Machart provided a report dated 16 March 2021.[33] Mr Knezevic reported the following current symptoms:
· neck pain and stiffness;
· stiffness in shoulders, left worse than right;
· pins and needles down left arm, glove distribution, intermittent, and
· headaches.
[33] AD2 p 221.
He concluded Mr Knezevic has sustained a soft tissue injury to the cervical muscles. There was little evidence of structural trauma. Dr Machart’s assessment was based on the mechanism of injury, and symptoms having developed in the cervical spine one day later, and shoulders two days later.
Dr Machart did not diagnose concurrent shoulder injury indicating it was unlikely given the mechanism of injury, and in relation to the onset of symptoms.
Dr Machart felt the symptoms were not entirely anatomically consistent for example, the glove distribution numbness and pins and needles in the left hand.
Dr Machart did not believe the soft tissue whiplash type injury would still be symptomatic four years post-accident and concluded the severity of the claimant’s symptoms were not confirmed by objectively based diagnostic features of pathology related to the accident.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“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.”
In Norrington v QBE Insurance (Australia) Ltd[34] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[34] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[35] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[35] [2016] NSWCA 229, McGiffen.
More recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[36] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
SUBMISSIONS
Insurer’s submissions
[36] [2021] NSWSC 804, Kinchela.
The insurer provided submissions in reply to the application for permanent impairment and further submissions in support of the application for review.[37] The insurer disputes the findings as to causation and notes:
[37] AD2 pp 1 and 9.
· pre-accident the claimant received physiotherapy treatment for right shoulder pain diagnosed as bursitis in January 2012;
· an X-ray and ultrasound of the right shoulder dated 17 October 2017 revealed subdeltoid bursal thickening in keeping with bursitis;
· pre accident the claimant had treatment for right shoulder pain in May 2014 linked to increasing soccer training;
· following the accident an ambulance did not attend and nor did the claimant attend hospital, the claimant saw his GP the following day in relation to neck complaints. She noted shoulder strength was normal and did not record any findings in either shoulder of dislocation, subluxation, bruising, swelling or signs of injury or any visible stiffness or failure of normal shoulder function;
· the claimant attended physiotherapy between 24 May 2017 and 12 July 2017 when no reference was made to a right shoulder injury, and he was ultimately discharged to a full return to sport;
· the claimant did not report any symptoms or undergo any treatment for the right shoulder following the accident;
· the final discharge records from the physiotherapist in July 2017 noted a full range of movements in the shoulders;
· between 14 June 2017 and 27 April 2018 there are no references to the accident, or the injuries sustained in the clinical notes of South Hurstville Family Practice;
· on 27 April 2018 the claimant reported pain in the right knee after playing soccer;
· on 4 April 2019 the claimant saw Dr Beshara for ongoing left arm paraesthesia, which was triggered by immobility or if he slept on his shoulder, whiplash with possible radiculopathy; Dr Beshara referred the claimant for an MRI of the cervical spine and left shoulder;
· in 2020 there was a single reference to the accident related injuries;
· other than physiotherapy for a few months after the accident the claimant had not had any significant treatment for the accident related injuries, and
· there was no radiological investigation of the right shoulder post-dating the accident. The MRI of the left shoulder dated 11 April 2019 nearly two years post-accident reported subtle AC (acromioclavicular) joint degeneration, tendinosis in the long head of biceps, an injury to the superior labrum of the glenoid with partial detachment.
Claimant’s submissions
The claimant provided submissions dated 9 November 2022 in response to the review application.[38] Whilst these submissions address the question to be determined by the President’s delegate the following salient points are notable:
· the Personal Injury Claim Form included a report of injury to the “neck, head, shoulders, left arm” and a pain diagram indicated both shoulders;
· the diagram in the claim form certificate clearly indicates both left and right shoulders;
· the initial physiotherapy notes include a pain diagram showing left shoulder pain and on page 2 of those records a pain diagram indicates bilateral shoulder pain;
· an Allied Health Recovery Request dated 19 June 2017 recorded “neck/shoulder pain”, and
· Dr Anderson considered that the left arm impairment was due to the accident.
[38] AD3 p 1.
The claimant considers Medical Assessor Rapaport made an error in applying the Guidelines. The claimant notes that under the Guidelines “if there is no objective evidence of the pre-existing symptomatic impairment, then its possible presence should be ignored”. The claimant notes there was no evidence of a pre-existing symptomatic impairment and there should have been no deduction from the assessable shoulder impairments.
EXAMINATION
Mr Knezevic attended the medical suite at the Commission rooms on 30 May 2023. He was examined by Medical Assessor Rosenthal and Medical Assessor Assem.
Personal history
Srdan (aka Serge) Knezevic, aged 57-year-old right hand dominant man. At the time of the accident, he had lived alone for a while, but he has a partner who lives in Serbia who would spend six months of the year with him. Due to the Covid pandemic restrictions starting in early 2020, she has not been able to visit Australia.
Mr Knezevic has been taking care of his elderly parents, performing domestic chores, food preparation, and staying with them for most of the week due to their deteriorating health.
He holds an Economics bachelor’s degree and a master’s degree in Public Policy from Sydney University (obtained in 2007). At the time of the accident, he was working three days a week as a sales manager. He did not lose any time off work due to the injuries he sustained in the accident as his duties were relatively sedentary in nature.
Mr Knezevic has been actively involved in sports, playing soccer at community club level, tennis socially, and regularly attending the gym. He was one of the oldest players in a 35+ Earlwood team covering both defensive and offensive midfield positions. His team is aware that since the accident he is not to head the ball.
Pre-accident medical history
The clinical records from St George Physiotherapy indicate he had pre-existing issues with his knees and right shoulder.
An ultrasound of the right shoulder on 17 January 2013 showed subdeltoid bursitis with impingement, but no rotator cuff tear, fracture or subluxation. X-rays of the shoulder and both knees were also done the same day.
He received physiotherapy for right shoulder pain in January 2013, due to gym activities.
He attended St George Physiotherapy again on 29 January 2013, 30 May 2014, and 13 June 2014 for right shoulder pain. He states that his symptoms resolved after participating in strengthening exercises prescribed by his treating physiotherapist.
He fractured the cuboid bone of his right foot while training for the soccer season in 2014 and missed the season. He was in a moon boot for three months.
On 15 December 2015, he sought treatment for right calf pain from an injury sustained while playing soccer. It was possibly a plantaris tendon strain.
On 4 August 2016, he had rib pain after a soccer accident, which resulted in a suspected fractured upper right rib with no associated pulmonary complications. He reported he made a full recovery from this injury.
In May 2017, he required treatment for an Achilles tendon injury with a recovery period of more than six weeks.
Two different doctors documented falls impacting both knees on 31 August 2020 and both hands on 7 June 2021 while playing soccer.
Dr Espinosa's medical records (19 May 2017) list recurrent tonsillitis, an appendectomy in 2012, and a cuboid fracture of the right foot in 2014.
History of injury
On 15 May 2017, Mr Knezevic was driving his Honda-CR-V along Southern Cross Drive in heavy traffic to attend a course in personal training. While stationary, he was rear-ended by a Toyota Corolla. Both vehicles were towed away and written off for insurance purposes. Following the accident, Mr Knezevic felt quite shaken but did not immediately experience pain. No ambulance was dispatched to the scene, and he did not attend a hospital.
On 19 May 2017, Mr Knezevic presented to his usual GP, Dr Espinosa, complaining of pain that had developed in the left neck region radiating to the left shoulder. Dr Espinosa found limitation of neck movement to the left affecting the cervical spine but noted that neck forward flexion and extension were ‘still good’. She also found Mr Knezevic's reflexes in the upper limbs to be hyperreflexic.
Dr Espinosa wrote a letter of referral to St. George Physiotherapy, where Mr Knezevic underwent at least seven sessions of physiotherapy, with the initial session commencing on 24 May 2017.
On 14 June 2017, the treating physiotherapist, Mr Tim Foulcher, noted that Mr Knezevic was feeling much better, with no neck pain, a full range of neck movements with only mild pain with extension. He cleared Mr Knezevic for a return to soccer.
The final session of physiotherapy treatment was on 12 July 2017, where Mr Foulcher reported Mr Knezevic was fit for a full return to sport without restrictions and did not anticipate any further treatment would be required. Despite his apprehension, Mr Knezevic returned to playing soccer with his club towards the end of the 2017 soccer season.
The final discharge record from his physiotherapist and GP in July 2017 indicated that the claimant’s neck symptoms had totally resolved. No physical therapy had been administered for right or left shoulder joint symptoms and range of motion of the shoulders was normal. When this was brought to his attention, Mr Knezevic stated that he may have experienced pain radiating to his shoulders but agreed he did not require any treatment. He also reported that he experienced ‘pins and needles’ radiating down his left arm.
In 2018, Mr Knezevic fell forwards while playing soccer. He experienced pain in his right knee and both wrists. He denied any shoulder discomfort. He received a further course of physiotherapy treatment and remedial massage for the soccer injuries. He stated that his neck and shoulder injuries from the accident never really recovered even though he was able to play competitive soccer for participants that were over 45 years of age. However, he avoided hitting the ball with his head.
Mr Knezevic did not receive any further treatment for the injuries he sustained in the accident apart from remedial massage to his neck and shoulders. His symptoms were worse when performed keyboard activities for long periods. It was brought to his attention that Dr Beshara documented paraesthesia involving his left arm triggered by immobility or sleeping on his shoulder. Mr Knezevic stated that the paraesthesia was always there even though it was not documented by his treating doctor or physiotherapist. At that time, he was unable to lift his left shoulder above 90 degrees. He was suspected of having adhesive capsulitis. He underwent an MRI scan of his left shoulder on 11 April 2019 that revealed proximal long head of biceps tendinopathy and probable interstitial tearing, subtle labral tearing superiorly and posterosuperiorly consistent with a type 2B SLAP tear and mild acromioclavicular joint arthropathy.
Mr Knezevic later suffered football injury falls that were documented by medical practitioners in the Medical Centre where he normally attended. One episode documented by Dr Andrew Beshara on 31 August 2020 referred to a fall by Mr Knezevic onto soft ground causing injuries to his knee. Another injury documented by Dr Fiona Elliott on 7 June 2021 referred to a fall onto outstretched hands causing bruising and swelling to his wrists.
Present symptoms
Mr Knezevic reported constant neck pain and stiffness associated with a crunching sensation with cervical rotation. He experiences numb sensation involving his left arm below the elbow in a global distribution. He clarified that the initial injury was to his left shoulder, but he is now developing pain in his right shoulder that he attributes to compensatory overuse.
He has resumed full time work as a sales representative with Outseer. He is currently playing soccer for Earlwood soccer club. He also does his usual domestic chores including the care of his elderly parents. He has difficulty vacuuming and with overhead activities. His last intake of simple analgesia was a couple of weeks ago.
Examination
Mr Knezevic appeared well and in no apparent distress. He was cooperative during the examination. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury. His height was 178cm and he weighed 73kg.
Cervical spine (cervicothoracic) and head
He had a normal posture. There was no tenderness, muscle guarding or spasm. Cervical rotation was symmetrically reduced to ¾ normal range. Cervical flexion and extension were symmetrically reduced to ¾ of normal range and lateral flexion was symmetrically reduced to ¾ of normal range.
Neurological tests
There was no measurable difference in the circumference of his upper arms or forearms.
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal
Sensation
There was no obvious alteration in normal sensation.
Muscle power
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL T1 5/5 NORMAL NORMAL
Upper extremity
There were no scars or deformities. There was no muscle wasting evident. There was no measurable difference in the circumference of his upper arms or forearms. Active range of motion was limited by shoulder pain. There was very slight crepitus over the left shoulder. Strength of the rotator cuff muscles was normal.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
130°, 120°
130°, 130°
Extension 30°, 40° 40°, 45° Adduction 60°, 60° 60°, 60° Abduction 120°, 100° 120°, 110° Internal Rotation 50°, 20° 40°, 30° External Rotation 80°, 90° 80°, 90°
The variability in his shoulder movements were brought to his attention. He states that it is better after ‘loosening up’. He also reported that it varies depending on the weather conditions and his activities.
DIAGNOSIS AND CAUSATION
The Panel recognizes Mr Knezevic's pre-existing condition of his right shoulder, which appears to have satisfactorily resolved prior to the accident.
In consideration of the comprehensive evidence presented, it was noted that Mr Knezevic initially presented with pain radiating from the neck to his left shoulder post-accident. However, records indicate that his left shoulder symptoms were effectively managed and deemed resolved as of July 2017, as documented by his treating physiotherapist who noted a normal range of shoulder movement at that time.
The subsequent deterioration of his left shoulder symptoms in April 2019, presenting as adhesive capsulitis, is not easily explained by the available medical evidence. This condition led to an initial imaging study of his left shoulder. Although the Panel did identify certain restrictions in shoulder motion during the examination due to shoulder pain, these findings were variable upon repeated testing and did not consistently align with the assessments of other medical practitioners who had previously examined Mr Knezevic.
In light of this, the Panel did not identify a direct causal relationship between the restrictions in shoulder motion observed during the examination or the pathology identified in the imaging studies, and the accident.
The Panel accepts Mr Knezevic sustained minor soft tissue injury to both shoulders as a result of the accident having regard to the reference to both shoulders in the Personal Injury Claim Form and the clinical records of Dr Espinosa and Mr Foulcher of St George Physiotherapy.
However, the Panel notes the treatment furnished by Mr Foulcher focused on the cervical spine and by 21 June 2017 Mr Foulcher reported Mr Knezevic had played soccer on the weekend and had mild morning stiffness and mild right sided cervical spine/shoulder pain. On 12 July 2017 Mr Foulcher reported no neck pain or stiffness over the preceding two weeks. He considered no further treatment was required and cleared Mr Knezevic for a full return to sport without hesitation.
The Panel finds the subsequent shoulder complaints which arose in 2019 and the underlying pathology disclosed on MRI scans were not causally related to the accident having regard to the lack of complaint between July 2017 and April 2019 and the claimant’s active lifestyle including his participation in soccer. The Panel is not satisfied there is any evidence to demonstrate that the accident materially contributed to the current shoulder complaints.
The Panel finds the soft tissue injury to both shoulders caused by the accident was short lived and had resolved by 12 July 2017.
The Panel finds the following injuries were caused by the accident but have now resolved:
· left shoulder – soft tissue injury (resolved), and
· right shoulder – soft tissue injury (resolved).
The Panel accepts the diagnosis of a soft tissue injury to the cervical spine in relation to the accident.
The Panel finds the following injury was caused by the accident:
· cervical spine – soft tissue injury.
ASSESSMENT OF PERMANENT IMPAIRMENT
Cervicothoracic spine
Based on objective clinical examination findings, there was a symmetrical reduction in cervical spine motion, without evidence of muscle guarding or spasm. Mr Knezevic reported diffuse symptoms involving his left arm that did not correspond to a distinct dermatomal pattern. His clinical presentation is consistent with a DRE Cervicothoracic Category I, correlating to a 0% WPI (AMA 4, 3/104).
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