Insurance Australia Limited t/as NRMA Insurance v Miller

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Miller [2024] NSWPICMP 365
CLAIMANT:	Colin Miller
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	6 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in motor accident in July 2011; claimant’s whole person impairment (WPI) assessed at 14% by Medical Assessor (MA) Home; insurer’s application for review; claimant alleged injury to neck, lower back, left lower limb (fractured fibula and knee including total knee replacement), right knee, ankle and subtalar joint, right shoulder and scarring; no concession by claimant as to recovery or absence of impairment of any injuries; no concession as to causation of any injury by insurer; Held – contemporaneous records satisfied Panel that the claimant injured his lower back, left leg and right shoulder; Panel not satisfied claimant injured neck due to absence of complaints until 2019 and normal examination in 2015; Panel not satisfied right knee, right ankle or foot injuries were caused by the accident as they were not mentioned until 2016 and 2019; lumbar and cervical impairment assessed at DRE category I – 0%; Panel found the left knee injury had led to a meniscal tear and that the arthritis in the claimant’s knee had developed as a result of this not being treated and that the right knee replacement was related to the injury caused by the accident; the claimant had a good result which led to a 15% WPI; right shoulder impairment was assessed at 8% and 0% was allowed for scarring; total WPI 22%; certificate revoked; no matter of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Home dated 13 October 2023. 2. Certifies that the degree of Colin Miller’s permanent impairment resulting from the injuries caused by the motor accident on 19 July 2011 is greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Colin Miller was involved in a motor accident on 19 July 2011. The claimant was on his way to work early in the morning. His windscreen wipers had stuck, and he pulled over to the side of the road and got out to free them up. A car travelling in the same direction hit Mr Miller’s vehicle in foggy conditions and the claimant was knocked to the ground.
Mr Miller says he was injured in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that hit him.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with the claim and, on 16 March 2018, the claimant was assessed by Medical Assessor Gehr. On 3 November 2018 a review panel determined the claimant had a WPI of 5%. The assessment and the review were undertaken by Medical Assessors engaged by the Medical Assessment Service (MAS) which was a unit of the State Insurance Regulatory Authority (SIRA) at the time.
The claimant sought a further assessment of WPI. As MAS was abolished upon the creation of the Personal Injury Commission (the Commission), the further assessment was undertaken by a Medical Assessor engaged by the Commission.
Medical Assessor Home determined on 13 October 2023 that Mr Miller had a WPI of 14%. The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 19 December 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 21 December 2023 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Mr Miller’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.

Dispute Resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Gehr, further medical assessments such as Medical Assessor Home’s and the review of medical assessments by this Review Panel.[3]
[3] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter is relevant.

ASSESSMENT UNDER REVIEW

Medical Assessor Home examined the claimant on 13 October 2023 and issued his certificate on 20 October 2023.
The Medical Assessor identifies at [2] the areas of the claimant’s body referred for assessment as follows:
(a)    spine – cervical spondylosis and aggravation of lumbar degenerative changes;
(b)    left lower limb – knee (chondromalacia patella, medical meniscus tear) and fractured fibula;
(c)    right knee, ankle and subtalar joint;
(d)    right shoulder (bursal fluid, tendinosis and impingement), and
(e)    scarring.
Medical Assessor Home records at [8] a past history of right shoulder surgery in 2006 resulting in no pain but mild stiffness but no other previous history.
The claimant was at the time of the accident a slaughterman at the Tamworth abattoir.
The claimant gave a history of the accident which occurred on 19 July 2011 when he had got out of his car to free up frozen windscreen wipers. A vehicle behind his collided with Mr Miller’s vehicle and Mr Miller was knocked over the bonnet of his vehicle.
The claimant reported gong to hospital with pain and swelling of his leg, being sent home and, when pain persisted, radiographs revealed a fractured left fibula and small flake fracture of the left ankle.
The claimant is reported at [11] as having current symptoms of constant neck pain, right shoulder pain and stiffness which has progressed over time, constant low back pain, residual stiffness in the left knee and constant pain in the right knee, intermittent mild pain in the right ankle, no problems in the left ankle or foot and mild restriction of motion in the left shoulder.
The claimant was, at the time of assessment 68 years of age.
Medical Assessor Home diagnosed at [20]:
(a)    a soft tissue injury to the lumbar spine with chronic pain aggravating underlying degenerative change;
(b)    patellofemoral chondral damage with crepitus;
(c)    fracture left fibula, and
(d)    right shoulder soft tissue injuries,
Medical Assessor Home found the cervical spine spondylosis, left knee meniscus tear, right knee, right ankle and subtalar joint and scarring was not caused by the accident.
Medical Assessor Home’s impairment assessment was14% based on:
(a)    lumbar spine          5%;
(b)    left knee                 2%;
(c)    right shoulder         7%, and
(d)    left ankle                0%.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer takes issue in its submissions only with Medical Assessor Home’s assessment of the lumbar spine. He had allowed 5% on the basis there was dysmetria (asymmetrical range of motion) in the plane of movement where flexion was half normal and there was no extension.
The insurer noted that the previous Review Panel found no dysmetria and Medical Assessor Gehr, Dr Keller and Dr Dixon all had not found dysmetria.
The insurer quoted the Guidelines which says, “to qualify as true non-uniform loss of motion, the finding must be reproducible and consistent …”. The insurer says there has been no finding of dysmetria in the past and therefore the finding by Medical Assessor Home was inconsistent.
The insurer also notes Medical Assessor Home referred to body landmarks when recording his measurements which is not permitted.

Claimant’s submissions

The claimant refers to evidence documenting a lumbar spine injury in particular the 2014 claim form, a Workcover certificate of capacity dated 2018, a presentation at emergency in July 2011 referring to right hip and lower back pain, the claimant’s statement of 13 December 2012. The claimant says there was sufficient evidence for the Assessor to find an injury to the back with associated impairment.
The claimant says the Medical Assessor has documented his finding and identified the methodology and there is no error.

Procedural matters

First directions

On 12 January 2024, the Review Panel issued directions to the parties seeking bundles of documents relevant to this review. The Panel also said at [14]:
“The Panel draws the attention of the parties to section 42 of the Personal Injury Commission Act (the PIC Act) which states the guiding principle of the Commission is to ‘facilitate the just, quick and cost-effective resolution of the real issues in the proceedings’ and that the parties to the proceedings have a duty to help the Commission achieve that.”
The Panel directed the parties to confer with a view to attempting to narrow the issues in dispute.

First preliminary conference and further directions

The Review Panel met on 22 February 2024 to discuss the claimant’s injuries and the issues in dispute as well as consider the documentation and whether any additional documentation was necessary. The Panel reported to the parties on 23 February 2023.
The Review Panel noted that no communication had been received from either party as to whether a conference had taken place between them and if so the result of that conference. The Panel made further specific requests for the parties to consider in an attempt to narrow the issues.
The Review Panel directed the insurer to provide an indexed and paginated joint bundle of documents.

Parties’ responses

The claimant responded as follows:
(a)    he wanted all of the injuries he said he sustained in the accident to be reassessed;
(b)    he accepted the finding of impairment in the right shoulder but not the impairment assessed in respect of the left knee, and
(c)    he alleged a left ankle injury and asked for that to be assessed.
The insurer responded stating that causation was in issue in respect of all injuries and that the insurer did not agree that the claimant sustained any form of injury to the lumbar spine, left leg and right shoulder.

Second preliminary conference and further directions

The Review Panel met again on 2 April 2024 and reported to the parties on 3 April 2024. The Panel notes that according to the responses from the parties, the Panel will undertake a fresh assessment of all of the injuries nominated by the claimant as follows:
(a)    neck – cervical spondylosis;
(b)    lower back – aggravation of lumbar degenerative changes;
(c)    left lower limb – ankle and knee and fractured fibula, tear of medial meniscus and chondromalacia patella;
(d)    right knee and ankle and subtalar joint;
(e)    right shoulder bursal fluid, tendinosis and impingement, and
(f)    scarring.
The Panel confirmed receipt of the joint bundle comprising 516 pages and confirmed it would be considering “these documents and not others.”
The Panel advised the parties about the re-examination on 15 May 2024.
On 10 April 2024 the Panel received correspondence from the claimant confirming the list of injuries was correct. The Panel has had no further correspondence from the insurer.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claim form[5] was signed and dated 16 October 2014.
[5] Page 5 of the joint bundle.
The claimant says he injured his left leg, left ankle, right shoulder, left knee, hips and back. He says his right shoulder is painful, his left knee becomes swollen if used a lot, his left ankle cracks, his left leg is painful if it is used a lot and he has continual backache and his hips are stiff.
He disclosed a 2006 right shoulder operation and a related workers compensation claim.
Dr Diebold completed the medical certificate which is dated 31 October 2014. He diagnosed:
(a)    left fibular fracture;
(b)    possible avulsion fracture of the left ankle;
(c)    right shoulder rotator cuff syndrome, and
(d)    left medial meniscus tear.
The Panel notes Dr Diebold did not include in that list neck or back injuries.

Statements

The claimant provided a statement dated 13 December 2012.[6] The claimant says he worked in the Tamworth city abattoirs for 16 years, then did contract fencing and he has worked for Cargill meats for 13 years.
[6] Page 31 of the joint bundle.
He says before the accident he was fit and well.
He provides great detail about the events leading up to the accident and the accident itself.
At [73] and [74] the claimant said his lower back had been a problem since the date of the accident but that he first mentioned it to the physiotherapist two weeks ago (that is the end of November 2011).
The claimant provided another statement dated 27 December 2017.[7] He says he cannot read and relies on his partner Debbie. He updates his treatment noting he is no longer having physiotherapy but is undertaking home based exercises using therabands and light weights.
[7] Page 50 of the joint bundle
Mr Miller gives details of the light duties he has been given which involves washing the heads of cattle.
He said before the accident he used to do “home kills” for locals earning $200 a time.
Mr Miller provides details of the domestic assistance provided for him and home maintenance issues he faces due to his injuries.
He says in respect of his symptoms:
(a)    his neck is stiff and painful all the time and he has pins and needles in his hands and headaches;
(b)    back – he can lean forwards but not back and gets pain across his lower back and hips with cramps in his hamstrings;
(c)    left knee is swollen and particularly when at work and it always aches. He has difficulty going up stairs or slopes;
(d)    left ankle – this also swells at night and is painful with a blanket over it, and
(e)    right shoulder – aches all the time and has limited movement.
Mr Miller says his back and right shoulder injuries are the worst.
The claimant’s statement of 2 February 2022[8] provides details about the claimant’s work and work duties and time off work. The statement also provides an update on the treatment the claimant has had.
[8] Page 27 of the joint bundle.
At [14] of that statement, he identifies his symptoms as follows:
(a)    neck is like it was in 2017, stiff and painful all the time;
(b)    back same as in 2017 but cramps across the lower back and hips;
(c)    left knee total knee replacement on 27 March 2019;
(d)    left ankle swells and locks up as it is stiff;
(e)    right shoulder is stiff and painful;
(f)    scarring of the left knee following surgery, and
(g)    after the surgery he used his right knee more and his right knee is causing most of his pain.
There is a statement from the claimant’s partner primarily in support of the domestic assistance claim[9].
[9] Page 54 of the joint bundle.
Documents have also been provided by the workers compensation insurer in relation to the claimant’s right shoulder injury on 8 May 2006. The claimant had a rotator cuff tear which was repaired arthroscopically in May 2006 and after which he developed an infection. A report from Dr Lennox, nine weeks after the surgery noted there had been a large full thickness tear there was some impingement and limited movement.

Treating medical records and reports

The hospital emergency department triage notes from 19 July 2011 note left leg issues, no midline cervical tenderness and scratches to right elbow. No paraesthesia was recorded in the upper or lower limbs. The notes also record there was no head injury and no loss of consciousness.
The hospital emergency department triage notes from 20 July 2011 state that Mr Miller was unable to weight bear, pedal pulses were present, the lower left leg was swollen and painful. There were also complaints of a painful right hip and lower back pain.
A letter from Dr Beattie (hospital registrar) to Dr Diebold was written on 21 July 2021 confirming a left leg fracture.[10]
[10] Page 133 of the joint bundle.
Dr Snyman, orthopaedic surgeon, wrote to the claimant’s general practitioner (GP) on 21 July 2011.[11] He had seen the claimant in emergency. He wrote:
“He has a graze on his leg from the direct blow. His calf is swollen but there is no evidence of compartment syndrome. The fracture is a mid-shaft fibular fracture, which has not disturbed the knee or the ankle. He does have some numbness around the second toe which could be the result of some paraesthesia of his peroneal nerve but it does not match the nerve dermatome exactly.”
[11] Page 180 of the joint bundle.
Records from Peel Health Care start with an attendance on 1 September 2010 for a right foot problem. The next attendance at that medical practice was on 27 July 2011. The claimant’s left lower limb injuries were noted and the claimant was complaining about pain in the right elbow.
On 3 August 2011 the claimant reported his right shoulder was aching as was his left knee and the ankle was not improving. There were two more attendances in August with lower limb symptoms only. On 21 September 2011 the claimant reported to Dr Diebold that he was feeling better and walking OK and was keen to return to work.
The claimant next attended Dr Diebold with right shoulder complaints on 26 October 2011 and then again on 9 November 2011 when a referral was given to Dr Hutabarat, orthopaedic surgeon. Dr Hutabarat saw the claimant in respect of the right shoulder on 15 November 2021. He noted the claimant had a good result from the pre-accident right shoulder surgery. He considered the rotator cuff was intact but that there was an impingement syndrome, and a cortico-steroid injection was given and he advised continuing light duties and physiotherapy.
The claimant had right rotator cuff surgery in February 2012 paid for by the workers compensation insurer. A week after the right shoulder arthroscopy and subacromial space debridement Dr Hutabarat noted the claimant had good range of motion with no pain relief.
Dr Snyman wrote to Dr Diebold on 5 June 2012. He had a history of the left fibula fracture and the right rotator cuff tear and says, “during the whole period he has been troubled by his left knee”. Symptoms were reported as an ache with recurrent swelling on activity. Dr Snyman thought he had “painful scarring of his fat pad” and injected local anaesthetic into the Hoffa’s fat pad.
Dr Diebold records on 6 June 2012 that the claimant had a good response to Dr Snyman’s left knee injection. The claimant reported that since the shoulder surgery he had paraesthesia in his right hand and wrist and he was waking with a closed and numb hand. On examination he was unable to grip fully with his right hand.
On review on 26 June 2012, Dr Snyman records that the claimant’s knee had improved.

Dr Diebold’s records then have entries relevant to the development of right nerve conduction studies and carpal tunnel syndrome.
On 9 August 2012 the claimant was seen by Dr Myers, hand surgeon for a second opinion concerning right hand numbness and pins and needles. The claimant was having difficulty holding (and was dropping) smaller objects. Dr Myers considered the claimant had underlying carpal tunnel compression of the median nerve on the right had side which was work related.
There is an operation report confirming the claimant had right carpal tunnel release on 7 September 2012 and a report from Dr Myers documenting significant symptoms in the left which was also considered to be work related but surgery was deferred until the right side had settled down after surgery.
The GP notes include references to right shoulder pain in October 2012 and February 2023, the left shoulder injury in May 2024 and then the attendance on 16 October 2014 when the claimant sought a medical certificate in support of his motor accident claim.
There are no attendances on Dr Diebold in 2015 but several attendances in March and April 2016 when the claimant injured his right leg at work. The claimant had attended the emergency department in Tamworth hospital on 10 April 2016 having been kicked in the right leg by a cow. He referred to the right knee on the lateral side. It is recorded that there was pain to the knee joint and limited range of movement. There is a history of previous right knee injury. Degenerative disease but no fracture was seen in the radiology.
There are no GP attendances in 2017.
Mr Miller attended on Dr Diebold on 13 March 2018 having been hit in the back of the head by a chain jarring his head backwards. The claimant had pain in the back of his head and his right upper back and had paraesthesia in his finger tips. All movements were greatly reduced in the neck and he was tender in the right trapezius and cervical spine. Dr Diebold records “neck injury following MVA several years ago.” A CT scan was done and on 14 March 2018 Dr Diebold noted the claimant was much better and had full range of motion in his neck.
Dr Sharp, orthopaedic surgeon saw the claimant on 14 September 2018. He had seen the contemporaneous imaging studies and reported that, “from that time on, Colin has had ongoing pain and disability with the left knee” and notes the range of motion had decreased in his left knee. His greatest concern at that time was the left knee, and this was interrupting Mr Miller’s sleep.
Dr Sharp suspected a medical meniscus tear originally undisplaced which was now displaced. He wanted a comparison scan done and was to see the claimant afterwards.
On 11 October 2018, Dr Sharp reports to the claimant’s GP:
“I saw Colin in my rooms today. Colin has returned with his MRI scan. We have looked further into the problems affecting Colin's left knee. Colin's MRI scan shows that he's essentially down to bare bone in the medial compartment of his left knee. This is associated with a medial meniscal tear. The medial meniscal tear has caused the damage to Colin's medial compartment. This tear [was] present back in 2012 when my old colleague Dr Rupert Snyman investigated Colin's left knee. He chose not to do anything about it at the time and unfortunately that has led to the arthritis in Colin's medial compartment of his knee. If something had been done about it back then, then there's a possibility that Colin's knee would not have arthritis. The MRI from 2012 shows that there is no arthritis at that point.”
On 17 December 2018 Dr Sharp writes again to the GP noting the claimant was finding it more and more difficult to do his work without pain relief and his employer had said as much and Mr Miller was given two weeks leave then dismissed. Dr Sharp asked the workers compensation insurer to pay for the knee replacement surgery. The correspondence about this was sent to NRMA.
The surgery was done on 27 March 2019 at a private hospital in Tamworth.
On 9 May 2019 the claimant saw Dr Sharp for his six week check-up and he was doing well but his right ankle had been playing up and he never had problems with it before.
Mr Miller attended on Dr Diebold on 14 June 2019 noting he had been medically retired and recorded a number of issues, the left knee reconstruction and various shoulder surgeries. He also records “Pain in neck down to shoulders” and “lower back pain since MVA getting worse.” Dr Diebold also notes the 2012 right carpal tunnel surgery and that “still drops things from hand at times.”
On 19 September 2019, Dr Sharp writes to the GP noting “Colin seems to have made a full recovery after his left total knee replacement.”
Dr Sharp saw the claimant again on 28 October 2019 following a CT scan of Mr Miller’s neck. He has a history of the car accident in 2011 and a second injury when he was hit in the back of the head at work in 2016. This injury “drove him down into the ground” He said, “both of these injuries are sufficient to have caused the damage to Colin’s spine.” And he noted considerable damage and degenerative changes affecting the spine with narrowing of his spinal canal to an almost dangerous level.
Dr Sharp referred the claimant to Professor Ghabrial for bilateral weakness and numbness affective both arms.

Radiology

Knees and legs

17 August 2011 – ultrasound left calf.
29 August 2011 – left knee pain and tenderness behind the knee after motor vehicle accident – osteoarthritic changes affective the patellar femoral and tibiofemoral joints which evidence of chondrocalcinosis, normal alignment no significant joint space narrowing and now significant soft tissue swelling.
On 10 November 2017, the claimant had an X-ray of his left knee which showed:
(a)    no joint effusion;
(b)    no loose bodies
(c)    normal alignment of the patella femoral joint with early degenerative changes but no narrowing of the joint space, and
(d)    tibiofemoral degenerative changes with slight narrowing of the medical joint space
An MRI left knee was done on 9 May 2012 due to “chronic prepatellar pain since MVA” showing a probable meniscus cyst and medial meniscus tear, sprain in medial collateral ligament, early signal changes in articular cartilage.
On 10 November 2015 the claimant had an X-ray of the left knee and again on 2 October 2018. The MRI of the left knee done at the same time showed tricompartmental osteoarthritis which had progressed, cruciate ligament degeneration which had progressed and medial meniscus is further degenerate with “macerated appearance.”
Further X-rays were done on 18 March 2019, 28 March 2019 and 14 June 2019 the latter two showing the left knee with the total knee replacement in place.
On 21 May 2021 Mr Miller had an X-ray of his right knee due to progressive pain and swelling. There was malalignment at the femoral tibia joint. Large osteophytes and one or too loose bodies.

Shoulders

Mr Miller had an MRI of the right shoulder on 18 October 2011 showing the previous surgery and regrowth spurring of the acromion. There was a large amount of bursal fluid, tendinosis and a labral tear.
On 22 October 2012 the claimant had an MRI of his right shoulder and on 4 July 2014 an MRI of his left shoulder.

Spine

The claimant’s first spinal imaging was done on 13 March 2018 which was a CT scan of the cervical spine and head after the claimant was hit in the head at work by a chain.
An X-ray of the cervical spine was performed on 17 October 2019.
The Panel has not been provided with copies of any lumbar spine radiology or reports.

Medico-legal reports

Dr Hopcroft, general surgeon examined the claimant on 22 October 2014 after the claimant’s left shoulder injury at work. Dr Hopcroft noted the claimant worked up to the day of his surgery with ongoing pain and restriction. When considering the claimant’s past medical history Dr Hopcroft refers to the car accident and an injury to the claimant’s left lower leg and right shoulder. Dr Hopcroft has no history of any neck or lower back injury.
Dr Keller, occupational physician provided a report to the insurer dated 27 March 2015. He noted the claimant was a slaughterman working full time eight hours a day five days a week standing all day on a slaughter line.
Dr Keller has a consistent history noting the claimant was standing on the running board of his vehicle and was thrown onto the other vehicle on impact.
Dr Keller records a history of the claimant experiencing immediate right shoulder and left leg symptoms but that four months after the accident the claimant developed worsening right shoulder pain and swelling treated by Dr Hutabarat. The claimant was certified fit for work in February 2012.
Dr Keller records:
“Mr Miller reports that since this time, the consequences of the motor vehicle accident have effeively resolved. He has no work restrictions from his left ankle, left fibula or right shoulder althought he does get ongoing symptoms …”
Dr Keller notes 2012 right carpal tunnel release, the ruptured right biceps tendon repair in June 2014, left shoulder arthroscopy for rotator cuff repair in August 2014 and a return to work in February 2015.
Dr Keller has a report from the claimant of “intermittent pain in the left knee and left ankle” associated with swelling. There was constant shoulder pain and stiffness in both shoulders and intermittent numbness in the left palm.
On examination the neck was normal, the right and left shoulders had a full range of motion. Lumbar spine was normal.
Both knees showed no deformity or swelling but small effusions and range of motion in both sides was 0-135 degrees with no instability and no tenderness.
Range of motion in the ankles was normal.
Dr Keller diagnosed a fractures left fibula, two small avulsion fractures in the left ankle and an aggravation of a pre-existing right shoulder injury resulting in infection requiring surgery.
He noted the claimant was not having any treatment, had no work restrictions and there was no permanent impairment caused by the injuries.
Dr Hopcroft re-examined the claimant on 28 July 2015 and reported to the claimant’s solicitors.
Dr Hopcroft has a history of the car accident noting that the claimant anticipated the approaching vehicle and attempted to hold himself in but that the insured vehicle hit the back taillight and ran alongside the vehicle striking him.
The claimant said he had immediate lower back pain and lack of sensation in his left leg. He developed worsening left leg pain and right shoulder pain after returning home and he had pain in the left hip.
Dr Hopcroft records that due to concern over worsening shoulder pain the claimant had an MRI on 21 October 2011 and then treatment.
Dr Hopcroft had a history of the carpal tunnel surgery and that this did not affect the paraesthesia in his hand which actually got worse, and he had similar symptoms in his left hand.
The claimant complained of ongoing stiffness in the cervical spine, decreased strength in the right forearm but full range of motion in the right and left shoulder. He had “occasional swelling in his left knee joint” and some occasional pain in the ankle joint.
On examination there was full range of motion in the shoulders but significant restriction of cervical spine motion, all ligaments were stable in the left knee with no effusion and some minor patellofemoral crepitation. The left ankle motion was full.
Dr Hopcroft said the claimant had sustained an injury aggravating his pre-existing right shoulder condition, an aggravation of pre-existent cervical spondylosis and had developed “a significant or ongoing radiculopathy.” Dr Hopcroft also expressed the view the claimant had developed chondromalacia patellae of the left knee.
He assessed WPI at 7% noting 5% for the neck (diagnostic related estimate (DRE) II) and 2% for the left knee on the basis of the chondromalacia patella.
Dr Hopcroft provided another report dated 21 June 2016 noting that the claimant had “ongoing significant neck pain” radiating into the right scapula with increasing paraesthesia in to both arms. The claimant also complained of low back pain radiating into the left thigh and calf and ongoing pain the left knee.
Neck movements were restricted and range of motion in the shoulders were restricted to 90 degrees (from 180) in abduction and flexion). The lumbar spine motion were mildly restricted and there was marked pain in the medial joint line of his left knee and flexion was reduced to 90 degrees.
Dr Hopcroft assessed WPI at 22% on the basis of 5% for the neck and 5% for the back, 4% due to restricted left knee movement and 2% for the chondromalacia patellae.
Dr Hopcroft provided a third report dated 9 November 2017. He has a history of the claimant continuing to work at the abattoir washing the heads of slaughtered animals and cutting of ear tags. He describes the job as follows:
“The patient performs this manoevre on about 850 animals per day, and this patient often has to crouch to get down on his knees or work in a forward bent position and with parrticularly big carcases reaching above shoulder level.”
Dr Hopcroft records that due to the claimant using his left shoulder more he has developed significant problems with the left shoulder.
Pain was reported in the left knee and ankle and that he is usually limping by the end of the day. Swelling in the left knee was reported.
Examination findings were similar, restricted range of motion in the neck and both shoulders and lumbar spine. There were “gross palpable osteoarthritic changes along the medial joint line of the left knee with tenderness at the joint line.” Dr Hopcroft noted the development of early genu deformity on the left side “suggesting collapse of the medical joint space.” There was osteoarthritis developing in the right knee.
Whole person impairment was assessed at 31%, 5% for each of the neck and the lower back, 8% impairment to each of the right and left shoulders, 8% for the left knee loss of motion and 2% for the chondromalacia.
Dr Hopcroft provided a fourth report dated 17 March 2021. The claimant had continued neck restriction of motion and weakness in the right arm, marked restriction of movement in both shoulder, low back pain with numbness and paraesthesia down both legs into his feet and toes. While there was some pain in the right knee, the claimant had a good result from his left knee replacement. WPI was assessed at 36% primarily due to 15% for the left knee replacement.
A separate assessment of WPI was done by Dr Hopcroft without a further report dated 11 May 2022. WPI remained at 36%.
Dr Dixon, orthopaedic surgeon provided a report to the claimant’s lawyers dated 28 March 2022. He has a consistent history of the accident and early treatment.
Dr Dixon noted that his ongoing problems after the accident were a stiff neck and pain in his lower back and hips. Dr Dixon has a history of the left knee problems and knee replacement and that because the claimant was over using his left knee his right knee became symptomatic.
The claimant reported pain and stiffness in his neck and right shoulder, right elbow with pain at the olecranon with intermittent paraesthesia in the thumb, index and middle fingers. The claimant also reported pain in his lower back with stiffness but no sciatica, paraesthesia in the toes on the right and pain and stiffness in the left knee.
The examination was conducted by “zoom”.
Dr Dixon diagnosed a whiplash injury to the neck, right shoulder injury with post traumatic stiffness, right elbow pain, low back strain, right knee injury due to favouring his left knee, post traumatic stiffness of the right ankle and hindfoot.
While he notes injuries have stabilised, he does not offer an impairment assessment noting that the claimant’s injuries appear to have deteriorated since the Review Panel’s certificate.
Dr Keller re-examined the claimant and wrote a report to the insurer dated 22 April 2022. He noted the following history since 2015:
(a)    April 2016 injury when kicked by a cow but no time off work;
(b)    March 2016 right knee effusion and osteoarthritis with medial meniscus tear;
(c)    10 November 2017 X-ray medical osteoarthritis and MRI in October 2018 – moderate to marked osteoarthritis;
(d)    the claimant was terminated from employment in December 2018 and medically retired due to left knee and both shoulders, and
(e)    27 March 2019 left total knee replacement with a good result.
The claimant was currently taking high blood pressure medication, an antidepressant, Panadeine Forte when necessary and paracetamol daily.
The claimant reported intermittent lower back pain, pain in both shoulders every day, neck pain and constant right knee pain.
On examination there was:
(a)    full range of symmetrical motion in the neck, no carpal tunnel symptoms and no neurological abnormality;
(b)    restrictions of right and left shoulder motion;
(c)    full range of symmetrical range of motion in the lumbar and thoracic spine and no neurological symptoms in the lower limbs, and
(d)    right knee flexion reduced to 90 degrees and left 0-120.
Dr Keller said in answer to question 5 about causation:
“Mr Miller’s current neck, back, shoulders and bilateral knee pain relates to age-related degenerative or arthritic changes and is not attributable to the subject motor vehicle accident claim.”
Dr Keller referred to the report of Dr Hopcroft and noted his findings in relation to WPI. He expressed the view that “it is not my opinion that these assessable impairment relates in any way to the subject accident.”
Dr Dixon provided a second report dated 11 December 2023. Again, the examination occurred by zoom.
Dr Dixon notes the claimant’s current treatment includes Panadol Osteo, a home passed exercise program, Endep at night for sedation and anti-depressant and high blood pressure medication.
Currently the claimant complained of pain and stiffness in his neck, pain and stiffness in his right shoulder, elbow pain, radicular complaints of occipital headaches and intermittent paraesthesia. He said he had a good result from the knee replacement but his right knee has been giving way and he is waiting a right knee replacement. The claimant was said to have continued low back pain with lumbar stiffness and no sciatica although radicular complaints of paraesthesia in four toes on the left and right. There was continued pain and stiffness in the left knee and right ankle.
Dr Dixon includes a WPI assessment of 29%

Other assessments

Medical Assessor Gehr examined the claimant on 9 March 2018 and issued his certificate on 16 March 2018.[12] He lists the injuries to be assessed as cervical and lumbar spine, left knee and ankle and the right shoulder.
[12] Page 515 of the joint bundle.
The claimant gave a history of no previous problems with those parts of his body before the accident. Medical Assessor Gehr reviewed the reports from Drs Keller and Hopcroft of right shoulder arthroscopic surgery in December 2012 and June 2014, right carpal tunnel release in September 2012 and left shoulder arthroscopy for rotator cuff repair. He also noted left knee surgery.
The claimant said he was no longer working in the abattoir but was working as a labourer.
Medical Assessor Gehr has a history of initial treatment and discharge at Tamworth Hospital and readmission the following day where investigations revealed avulsion fractures of the left lateral malleolus and fracture of the left mid fibula.
The claimant gave a history of recurring left knee problems saying that it never really settled down after the accident.
The claimant told Medical Assessor Gehr he struck his right shoulder when he hit the ground. He had a left shoulder operation in August 2014 which was a workers compensation matter and his left shoulder was not injured in the accident.
The claimant complained of mid lumbar back pain which came on a few months “later” and neck stiffness.
The claimant developed carpal tunnel issues in the right wrist which was not motor accident related but was work related.
The claimant reported that all his symptoms have deteriorated in the six and a half years since the accident.

The clinical examination revealed:
(a)    neck – some guarding and dysmetria but no signs of radiculopathy;
(b)    lower back – no guarding or dysmetria normal range of motion and no signs of radiculopathy;
(c)    left shoulder – wasting of supraspinatus and infraspinatus muscles with reduced range of motion and positive impingement;
(d)    right shoulder – marked wasting, tenderness, reduction of motion worse than the left;
(e)    both knees – had reduced range of motion in both knees, palpable osteophytes in the right and left knees, no crepitus and no leg length discrepancy, and
(f)    both ankles were normal.
Medical Assessor Gehr found no contemporaneous evidence to link the claimant’s neck or back problems to the accident. He noted the ankle injuries had recovered, the left shoulder was, on the claimant’s evidence not caused by the accident and that the claimant’s left knee chondromalacia patella and tear of the medical meniscus was caused by the accident as was the right shoulder injury.
He assessed WPI at 4% for the left knee and 1% for the right shoulder.
A Review Panel comprising Medical Assessors Lahz, McGrath and Cameron undertook a reassessment on 2 November 2018. After a thorough review of the medical evidence) that Panel decided:
(a)    the contemporaneous records supported injuries to the right shoulder, left ankle and left knee;
(b)    there was no evidence of any injuries to the neck and lower back due to the absence of complaint (in any event they were 0% WPI), and
(c)    the right shoulder impairment was 14% upper extremity impairment (UEI) but the Panel noted there was full movement found by Drs Keller and Hopcroft in 2015. The left shoulder could not be a baselines because it was now injured. The Panel considered the right shoulder would not have been normal before the accident.
Whole person impairment was assessed at 5%, 3% for the shoulder (8% minus 5%), 2% for the left knee (soft tissue injury) and 0% for the left ankle (as there was an identical impairment in the uninjured right ankle).

RE-EXAMINATION FINDINGS

Mr Miller attended the re-examination on 15 May 2024 in the company of his defacto partner, Ms Deb Butler.
He was assessed by Medical Assessor Stubbs and Medical Assessor Oates for the Medical Review Panel at the Commission’s Medical Suites as arranged.

History

Pre-accident medical history and relevant personal details

In 2006, Mr Miller ruptured his right biceps tendon which was surgically repaired under workers compensation by Dr Lennox. He made a good recovery from surgery and was not left with any problems. He thinks he returned to normal duties after about six weeks on light duties. He returned to work as a roving slaughterman at the Tamworth Abattoir where he had worked for 40 years at the same site under various employers.
He has had no other medical conditions, no other surgery and no regular medications before the subject accident.
He lives with his partner in a one-storey house belonging to her. He would normally do the outdoor maintenance and his partner looked after the inside housework.

History of the motor accident

Mr Miller said on 19 July 2011 shortly before 6.00am on a foggy winter’s morning, he had got out of his vehicle on the way to work to free up the windscreen wipers which had frozen to the windscreen. He was aware that another vehicle was coming from behind him on his side of the road in the gloom at speed. He tried to stand as close to his vehicle as possible but despite this, the small sedan hit the back of his vehicle, hitting him on the left side of his body, pushing him to the left and causing him to roll over the vehicle which hit him, and he then landed on the road. A bystander arrived and advised him to get off the road as quickly as he could scramble.
Ambulance and police attended, and he was taken to Tamworth Base Hospital. He was aware of right shoulder pain and left leg pain, with swelling in the leg between the knee and ankle. He was assessed. They saw that he could walk on the leg, so he was sent home.
He went back to the hospital the next day with severe pain and swelling and bruising of the entire left leg. He had X-rays which showed a fracture of the mid-shaft of the left fibula. There was also a small flake avulsion fracture of the left ankle, and he had abrasions to the left leg, left arm and left flank.
The left ankle condition was managed in a Cam walker boot for about six weeks.

Progress

He continued to have left knee swelling after the accident and he had further X-rays of the knee. Mr Miller returned to work but found he was dropping the knife from his dominant right hand. He was sent to orthopaedic surgeon, Dr Hutabarat, and he had arthroscopic surgery to the right shoulder in early 2012 at Brisbane Waters Private Hospital, paid for by the workers compensation insurer. After this, he did two weeks of light duties and then gradually returned to normal duties. The surgery was complicated by infection, and he required a secondary washout and debridement surgery. He was left with restricted range of movement in the shoulder and was still dropping the knife at work.
He continued to drop the knife and had a nerve conduction study in July 2012 showing bilateral carpal tunnel syndrome. He had a right-sided carpal tunnel decompression surgery but he was still dropping the knife, so he had surgery for right biceps tendon repair and this did improve the range of movement of the shoulder.
He was sent to Dr Tame, pain management specialist, and had radiofrequency neurotomies to the cervical and lumbar spines which were symptomatic, but there was no benefit.
He had continuing problems and deterioration in the left knee and in 2012 had MRI scans ordered by Dr Snyman, who recommended conservative treatment.
His knee continued to cause him problems with pain particularly after a long day at work. He took pain killers and put up with it. He was noticed hobbling at work by the abattoir’s occupational health nurse. Mr Miller was sent for a fitness for work medical examination, which he said he failed because of his knee, and he was eventually terminated from his employment in December 2018.
Mr Miller was referred to Dr Sharp, orthopaedic surgeon, Tamworth after this. He had further imaging showing advancing osteoarthritis of the left knee, with bone-on-bone arthritis developing. He was recommended to have a left knee replacement operation, and this was undertaken by Dr Sharp at Tamara Hospital in Tamworth on 22 March 2019. He made a good recovery from his left knee replacement.
At review after the left total knee replacement, Dr Sharp asked the claimant why his right knee was painful, as it was not injured, but he believes it was from increased physical stress on the right knee from long-term limping on the painful left knee. Dr Sharp investigated the right knee and suggested a right total knee replacement, but the insurer has declined liability. He had no further treatment and Dr Sharp has since passed away.
Mr Miller reports continued pain in the lower back and had radiofrequency procedures with Dr Tame in July 2020 and injections into the cervical spine at various levels between C2 and C4. He did not continue with any further pain management as he found none of the treatment alleviated his symptoms.

Subsequent injury

Mr Miller had a work-related injury to the left shoulder when he attempted to throw a piece of meat into a tub to his left side and felt sudden onset of left shoulder pain.
He had investigations showing a tear of the rotator cuff, which was surgically repaired by Dr Hutabarat at Brisbane Waters Private Hospital under workers compensation.

Current symptoms

Mr Miller says he can manage his own personal care but cannot mow the lawn or wash the truck. He cannot go fishing, as he has difficulty casting the rod because of low back pain and right shoulder pain. He has some right knee pain at the medial joint line but no left knee pain since the successful knee replacement.
His left ankle is good. His right ankle swells at times.
He does not have any neck symptoms unless he bends his head strongly to the right.

Current and proposed treatment

He takes Panadol Osteo, two tablets three times a day, for shoulder and right knee pain. He is also on medication for high blood pressure and high cholesterol.

Examination

General presentation

Mr Miller is right-handed for writing but is basically ambidextrous otherwise. His height was 183cm and his weight, 98kg.

Cervical spine (cervicothoracic)

Flexion and extension of the neck were full range. Rotation was full bilaterally. Lateral flexion was full to the left and three-quarters to the right with the claimant complaining of right basal neck discomfort which limited the evaluation of his right range of motion.
Upper limb reflexes were of low amplitude and symmetrical, power and sensation were normal and his grip was strong bilaterally. The upper arm girth was measured at right 33.5cm and left 32.5cm, at 10cm above the elbow crease. Forearm girth was measured at right 31.5cm, left 30.5cm at 10cm below the elbow crease. This is consistent with stated right-hand dominance.
There were no signs of nerve root tension or impingement.

Right shoulder

There was a 12.5cm scar over the right shoulder with evidence of a distal clavicle excision having been performed.
There was right long head of biceps rupture visible with a ‘Popeye’ muscle. There was wasting of the right supraspinatus and right infraspinatus bellies. There was glenohumeral joint crepitus present but no deltoid wasting.

Left shoulder

There were arthroscopic portals about the left shoulder and evidence of a left long head of biceps rupture with a Popeye muscle but no joint crepitus.
Active range of movement was measured using a goniometer.

Shoulder motion (normal in brackets)

Active ROM measured right

Active ROM measured left

Flexion (180)

110°

160°

Extension (50)

30°

50°

Abduction (180)

90°

140°

Adduction (90)

40°

40°

Internal rotation (50)

40°

60°

External rotation (50)

50°

50°

Lumbar spine (lumbosacral)

There was no guarding. There were no non-verifiable radicular complaints.
Flexion and extension were three-quarters of normal. Lateral flexion was full bilaterally. Rotation in the thoracic and lumbar spines was full bilaterally. There was no dysmetria.
Squatting was limited to less than one-half because of right knee discomfort.
Reflexes were brisk and symmetrical. Plantar responses were both flexor (normal). Slump test was negative bilaterally. Supine straight leg raising showed negative sciatic stretch test bilaterally.
Power and sensation in the lower limbs were normal.
Thigh girth on right was 53.5cm and in the left 54cm at 15cm above the superior patellar pole. The girth of the calves was measured on the right at 40.5cm and the left 41cm.

Lower extremities

Active range of movement at knee and ankle joints were measured with a goniometer.
At the left knee, there is a 13cm longitudinal scar anteriorly, up to 5mm in width, slightly paler than surrounding skin, with no suture or staple marks visible, no tethering and no contour defect. There was no atrophy or hypertrophy in the scar. While the scars are visible and easily located. Mr Miller said they did not bother him.
At the left knee, there was no patellofemoral crepitus, and the ligaments were stable. There was no joint effusion.
At the right knee, there was underlying osteoarthritis with crepitus present but no instability and no effusion. There was mild varus deformity with a tender osteophyte medially.

Knee movements

Active ROM measured left

Active ROM measured right

Flexion

100°

130°

Extension

-10° fixed flexion deformity

0°

Right and left ankles

There was no tenderness, swelling or deformity is either of Mr Miller’s ankles. Range of motion was measured and set out below. All movements within the normal range of motion for the ankle joint.

Ankle movements

Active ROM measured right

Active ROM measured left

Plantar flexion

40°

40°

Dorsiflexion

10°

10°

Hindfoot eversion

20°

20°

Hindfoot inversion

40°

40°

Comments on consistency

The claimant was consistent in his presentation. He was co-operative throughout the examination and gave a good account of himself and his injuries and symptoms despite the almost 13 years that has elapsed since his injury.

Medical Imaging

There was a large amount of imaging films brought to the examination.
(a)    17 August 2011 – ultrasound left calf;
(b)    29 August 2011 – X-ray left knee;
(c)    18 October 2011 – MRI right shoulder;
(d)    15 May 2012 – MRI left knee;
(e)    22 October 2012 – MRI right shoulder;
(f)    4 July 2014 - MRI left shoulder;
(g)    10 November 2015 – X-ray left knee;
(h)    13 March 2018 – CT cervical spine and head;
(i)    2 October 2018 – X-ray left knee, MRI left knee;
(j)    18 March 2019 – X-ray left knee and chest X-ray.
(k)    28 March 2019 – X-ray left knee showing total knee replacement (TKR) in situ;
(l)    14 June 2019 – X-ray left knee showing TKR in situ;
(m)     17 October 2019 – X-ray cervical spine, and
(n)    21 May 2021 – X-ray right knee.
Reports were brought for MRI right shoulder (18 October 2011), X-ray cervical spine (17 October 2019), MRI right shoulder (22 October 2012), CT cervical spine and head (13 March 2018), and X-ray right knee (21 May 2021). The Medical Assessors inspected the imaging films and agreed with the reports which had been brought along or provided with the documentation.

CONSIDERATION OF THE ISSUES

Causation of injuries

The Medical Assessors note that the claim form was completed in October 2014, three years after the accident and lists left leg (including knee and ankle) injuries, a right shoulder injury and injuries to the back and hips.
The contemporaneous records are limited to the hospital records which records lower back and leg pain on the day of the accident and the GP notes which document left leg, right elbow and right shoulder injuries.
The statement made by the claimant to the workers compensation insurer in December 2012 does refers to the lower back (but not the neck).
The Panel notes the GP records do not refer to neck or lower back symptoms in the context of the car accident until July 2019. No radiology was performed on the neck until after the claimant’s work injury in 2018 and there is no radiology of the lower back at all.
The first medico-legal report of Dr Hopcroft (October 2014) does not mention back or neck pain and Dr Keller (March 2015) records normal neck and back movements.
On the basis of the contemporaneous documents, the Panel is satisfied the claimant sustained a soft tissue injury to the lumbar spine, a right shoulder soft tissue injury and a left ankle flake fracture and a left leg mid-shaft fibular fracture.
Mr Miller told the Medical Assessors that he developed left knee troubles after the accident which continued after they were investigated and after Dr Snyman’s fat pad injection. Mr Miller’s GP records indicate he is not a frequent attender at the medical practice and Mr Miller says he simply put up with the left knee symptoms with medication. The Panel accepts this history.
The Panel has been advised the workers compensation insurer paid for the claimant’s left knee reconstruction surgery and notes that both Medical Assessor Gehr and the Review Panel which considered his certificate, found the claimant injured his left knee in the accident.
The Panel considers the report of Dr Sharp, the claimant’s treating knee surgeon from 2018 to be significant. Dr Sharp saw the claimant on several occasions and performed the knee replacement surgery. He says that the claimant’s arthritis which has developed in the left knee is possibly related to the treatment he had (or more importantly the treatment he did not have) at the hands of Dr Snyman. The medical members of the Panel agree with this medical opinion and are firmly of the view that in their clinical judgment, the absence of treatment soon after the accident has been a more than negligible contribution to the progression of the claimant’s left knee arthritis and his need for surgery. But for the accident and the absence of treatment to the claimant’s left knee the claimant would not have progressed to a total knee replacement in 2019.
Having considered that above documentation and the claimant’s history, the Panel is satisfied that Mr Miller sustained a soft tissue injury to left knee which aggravated and accelerated pre-existing asymptomatic degenerative changes in the knee and damaged the claimant’s medial meniscus, resulting in the need for the total left knee replacement that occurred in 2019.
The Panel is not satisfied that the accident caused a cervical spine injury, as it is not mentioned in the claim form or in the early contemporaneous medical records, such as the hospital record, which specifically records the absence of neck or chest pain and no neck tenderness on examination.
The Panel is not satisfied that the accident caused a right knee, right ankle or foot injury. These parts were first mentioned in the medical evidence on 10 April 2016 (in the context of a work-related accident) and 9 May 2019 (with no previous problems reported). There is no medically plausible explanation which could link these complaints to an injury five or eight years before.

PERMANENT IMPAIRMENT ASSESSMENT

Spinal impairment assessment

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions, the cervical, thoracic and lumbar. If impairment is alleged in two or more regions, the regional impairments are combined to obtain a WPI for the whole of the spine.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor in determining which of the categories is the correct category (see Table 7).
A DRE category I is selected if there are symptoms which may include pain. A classification of DRE II on the basis of a possible nerve root injury requires there to be:
(a)    pain with guarding; or
(b)    non-uniform range of motion – dysmetria, or
(c)    non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A DRE category III impairment on the basis of nerve root injury resulting in radiculopathy requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(a)     loss or asymmetry of reflexes (see Table 8);
(b)     positive sciatic nerve root tension signs (see Table 8);
(c)    muscle atrophy and/or decreased limb circumference (see Table 8);
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Lumbar spine

The clinical examination findings from the Review Panel’s re-examination indicated no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy placing Mr Miller in DRE Lumbosacral Category I giving 0% WPI.

Cervical spine

While the Review Panel has made a finding that there was no neck injury sustained in the accident, the Panel notes that the examination revealed no guarding and no non-verifiable radicular complaints. There was no true dysmetria, as right lateral flexion was voluntarily restricted by complaints of discomfort and was not reproducible (see Table 8 of the Guidelines). Had the Panel been satisfied the claimant had injured his cervical spine in the accident, the claimant would have been assessed with a DRE Category I which attracts a 0% WPI.

Lower limb impairment assessment

The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for.
The Panel has found that Mr Miller’s right knee and right ankle were not injured in the accident but had no assessable impairment in any event.

Left knee

In Mr Miller’s case, it is the clinical judgment of the medical members of the Panel that the diagnosis based estimated of section 3.2(i) is the most appropriate method of assessment. Mr Miller has had a left total knee replacement performed as a result of the accident. In accordance with Table 64 of AMA 4 Guides (pages 85), a knee replacement attracts impairments based on the result of the surgery that is good (15%), fair (20%) or poor (30%).
Mr Miller’s procedure achieved a good result. He has no left knee pain, some restriction of movement and fixed flexion deformity, no instability, no malalignment and no extension lag.
On the basis of a good result, this gives a WPI of 15%.

Left ankle

The range of movement in the left ankle is normal and does not result in any assessable permanent impairment.

Right shoulder

The assessment of UEI is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are several methods of assessment provided, and it is the clinical judgment of the medical members of the Panel that the abnormal range of motion method in section 3.1(d) of AMA 4 Guides is the most appropriate method in Mr Miller’s matter.
The abnormal range of motion requires the measurement of six functional units of motion: flexion and extension; abduction and adduction, and internal and external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added together to obtain a total UEI which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.
At the right shoulder, there is measurable reproducible loss of active range of motion which forms the basis for assessing an impairment.

Shoulder motion (normal in brackets)

ROM right

UEI %

Flexion (180)

110°

5

Extension (50)

30°

1

Abduction (180)

90°

4

Adduction (50)

40°

0

Internal rotation (90)

40°

3

External rotation (90)

50°

1

Adding these together results in a 14% UEI.
The Review Panel notes that the left shoulder was subsequently injured in a work accident and there has been surgery, hence it cannot be used as a baseline and the means by which the WPI might be adjusted in accordance with cl 1.51 of the Guidelines, as the left shoulder is not a normal uninjured joint.
While the Review Panel acknowledges the claimant’s pre-accident right shoulder problems the Panel notes the claimant returned to his heavy labouring work with no complaints. There is no objective evidence from before the current car accident to suggest there was a symptomatic pre-existing impairment within the meaning of cl 1.32 of the Guidelines.
A 14% UEI is equivalent to 8% WPI in accordance with the relationship Table 3 on page 20 of AMA 4 Guides.

Scarring

There is surgical scarring associated with the left knee total knee replacement and right shoulder arthroscopic scars.
The Medical Assessors observed that these scars were uncomplicated surgical scars which do not bother the claimant and are not currently being treated and do not interfere with his activities of daily living. The claimant’s scars do not, in the view of the Review Panel attract any additional permanent impairment in accordance with Chapter 13 of the AMA 4 Guides or the table of evaluations of minor skin impairments (Table 18 of the Guidelines).

CONCLUSION

The Review Panel is satisfied that of the injuries referred for assessment and review result in an impairment that is greater than 10% as follows:
(a)    neck / cervical spine  no injury and no impairment
(b)    lower back / lumbar spine              DRE I - 0%
(c)    left lower limb:
(i)ankle  no assessable impairment
(ii) knee  15%
(d)    right lower limb:  no injury and no impairment
(e)    right upper limb / shoulder             8%`
(f)    scarring  0%.
In accordance with the combination chart on page 322 of AMA 4 Guides, 15% WPI combined with 8% results in a 22% WPI.
Medical Assessor Home included his finding of a 14% WPI in his certificate. While the Panel has come to the same conclusion as the Medical Assessor (that the claimant has a WPI of greater than 10%), the Panel has found a different degree and must therefore revoke the certificate.

Shoulder motion (normal in brackets)	Active ROM measured right	Active ROM measured left
Flexion (180)	110°	160°
Extension (50)	30°	50°
Abduction (180)	90°	140°
Adduction (90)	40°	40°
Internal rotation (50)	40°	60°
External rotation (50)	50°	50°

Knee movements	Active ROM measured left	Active ROM measured right
Flexion	100°	130°
Extension	-10° fixed flexion deformity	0°

Ankle movements	Active ROM measured right	Active ROM measured left
Plantar flexion	40°	40°
Dorsiflexion	10°	10°
Hindfoot eversion	20°	20°
Hindfoot inversion	40°	40°

Shoulder motion (normal in brackets)	ROM right	UEI %
Flexion (180)	110°	5
Extension (50)	30°	1
Abduction (180)	90°	4
Adduction (50)	40°	0
Internal rotation (90)	40°	3
External rotation (90)	50°	1

[2024] NSWPICMP 365

6 June 2024