Insurance Australia Limited t/as NRMA Insurance v Robson
[2022] NSWPICMP 375
•27 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Robson [2022] NSWPICMP 375 |
| CLAIMANT: | Amy Robson |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Dr Neil Berry |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| DATE OF DECISION: | 27 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 7.26 of the 2017 Act; original Assessor (Harrington) had assessed WPI at 16% - 5% for cervicothoracic, 5% for thoracolumbar injuries and 7% for a right wrist injury; insurer’s application for review on basis of two methodological errors in wrist impairment; Held – following re-examination cervicothoracic impairment at 5% due to presence of dysmetria and no impairment in thoracolumbar spine; wrist impairment calculated at 8% therefore total WPI was 13% which was greater than 10%; no issue of principle. |
| DETERMINATIONS MADE: | The Review Panel: 1. Revokes the certificate of Assessor Harrington dated 21 March 2022. 2. Certifies that Amy Robson’s degree of permanent impairment resulting from the injuries caused by the motor accident on 12 December 2017 is 13% which is greater than 10%. |
STATEMENT OF REASONS
introduction
Amy Robson was involved in a motor accident on 12 December 2017. She was driving to work when a truck reversed into her vehicle, and she had no time to stop before a collision occurred.
Ms Robson made a claim for damages on NRMA, the third-party insurer of the vehicle she considered responsible for causing her accident[1].
[1] The claimant’s application for personal injury (statutory) benefits was dated 14 December 2017 and was included at page 153 of the claimant’s bundle. A copy of the damages claim form has not been provided.
A medical dispute has arisen in the course of that claim concerning whether
Ms Robson is entitled to damages for non-economic loss. That medical dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 21 March 2022, Assessor Harrington determined that Ms Robson had a whole person impairment (WPI) of 16% which entitles her to seek damages for non-economic loss. The insurer was disappointed with that result and lodged an application with the Commission seeking a review of that decision.
A delegate of the President of the Commission determined there was reasonable cause to suspect an error in Assessor Harrington’s assessment and the President convened this Review Panel (the Panel) to conduct the Review[2].
[2] The President’s delegate’s decision is dated 17 May 2022 and the Panel was convened on 10 June 2022.
Legislative Framework
Ms Robson’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2021 is $590,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[4].
[4] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments including provisions relevant to an original medical assessment such as Assessor Harrington’s, further medical assessments and the review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Review Panel proceedings are subject to the Rules of the Commission in particular rule 128 which provides that the Panel can determine its own procedures, can determine the matter on the written material or can hold a medical examination or hearing.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 7.21. The current version of the Guidelines is Version 8.2 which is effective from April 2022.
The relevant clauses of the Guides and the Guidelines in this matter relevant to wrist impairment includes the following:
(a) chapter 3 of the AMA4 Guides, section 3.1h at page 3/35 provides for the assessment of wrist impairment by two means, amputation (clearly not relevant in Ms Robson’s case) and abnormal motion at the wrist;
(b) there are two planes of motion to be considered, flexion / extension and radial / ulnar deviation;
(c) figures 24, 25 and 26 and the commentary explain the determination of an upper extremity impairment for loss of flexion and extension;
(d) figures 27, 28 and 29 and the commentary explain the determination of an upper extremity impairment for ulnar and radial deviation, and
(e) the commentary then requires the four individual impairments to be added to provide a total which is then converted to a WPI using table 3.
Shoulder impairment is provided for in Chapter 3 of the AMA4 Guides section 3.1j at page 3/41. This provides for amputation (not relevant here) and a range of motion method of assessment. There are six planes of motion which are measured to ascertain any restriction of movement and an upper extremity impairment is obtained for each of the six planes and these are then added to arrive at a total upper extremity impairment and then converted to a WPI using Table 3.
Spinal impairment is assessed using Chapter 6 of the Motor Accident Guidelines at
cls 6.111 to 6.155 and includes the following:(a) an injury model considering neurological deficits or adverse structural changes is provided (cl 6.113);
(b) the range of motion model is not to be used (cl 6.116);
(c) diagnostic related estimates (DRE) are to be used in accordance with the descriptors in table 6.7;
(d) clinical findings which assist in determining a particular DRE category are defined and explained in table 6.8;
(e) injury to each of the three areas of the spine (cervicothoracic, thoracolumbar and lumbosacral) is assessed separately, and
(f) the impairment assessments are combined to provide a total WPI.
Assessment under review
Assessor Harrington examined the claimant on 16 March 2022 and issued his decision five days later. He was asked to assess the following injuries:
(a) cervical spine – soft tissue injury or aggravation of pre-existing asymptomatic degenerative changes;
(b) thoracic spine – soft tissue injury or aggravation of pre-existing asymptomatic degenerative changes;
(c) wrist – injury to right wrist including fracture and soft tissue damage;
(d) shoulder – injury to the right rotator cuff, and
(e) lumbar spine – soft tissue injury of aggravation of pre-existing asymptomatic changes.
Assessor Harrington notes the claimant is 33 years of age, has two children and works as a registered nurse at a large public hospital. She is currently a Nurse Unit Manager in the cardiac ward working full time hours.
Assessor Harrington notes the circumstances of the accident, and records that the claimant was wearing a seatbelt and the airbags in the vehicle deployed. The claimant reported that she suffered immediate right wrist pain, lower back and neck pain and pain under her right scapula.
Emergency services did not attend the accident scene, the claimant exchanged details with the driver, called her husband and was picked up and taken to her general practitioner (GP). Ms Robson was treated with a wrist splint, had physiotherapy and pain management counselling.
The claimant complained of chest and back pain and trouble with her neck when turning her head, in particular. Ms Robson also said she was suffering from migraines which she had never had before the accident and a painful right wrist.
On examination, Assessor Harrington noted:
(a) neck – no localised tenderness or nodes in the posterior triangle. Movements were reduced (he did not say by how much) associated with spasm but there was no neurological symptoms in her upper limbs;
(b) thoracic spine – movements were a bit stiff, and Ms Robson localised pain under the scapular;
(c) lower back – pain was localised in the mid-line with no localised tenderness. Movements were slow and cautious but there was no spasm and there were no neurological symptoms in the lower legs;
(d) wrist – the claimant was tender over the triangular fibrocartilage (TFC) with some loss of movement (measured) and no pain or nerve problems. Her left wrist was normal, and
(e) shoulders – both shoulders had a full range of movement and Assessor Harrington considered her right shoulder pain may be coming from the neck or scapular.
Assessor Harrington said he had considered the reports of the parties’ experts. He noted Dr Bodel had found impingement of the right shoulder with reduced movement which he did not find during his examination. While he agreed with Dr Smith that the claimant had no radiculopathy, he did not agree with the assessment of DRE I for both neck and back.
Assessor Harrington reviewed the X-rays and could not determine any fracture of the wrist and considered the thoracic disc protrusion likely to be incidental.
Assessor Harrington diagnosed soft tissue injuries to the claimant’s thoracic and cervical spine and to the right wrist. He found no right shoulder injury and considered the lumbar spine soft tissue injury had resolved. He assessed WPI as follows:
(a) cervicothoracic – DRE II = 5%;
(b) thoracolumbar – DRE II = 5%, and
(c) wrist = 7%.
While he considered Ms Robson had pre-existing degenerative changes in her spine and a pre-existing “flake at the ulnar styloid” he says these were asymptomatic before the accident and therefore there was no deduction to be made.
Submissions
Insurer’s submissions
The insurer raises the following issues with the assessment of the claimant’s wrist impairment:
(a) the assessor’s failure to explain why he rounded the range of motion for right wrist extension down, and
(b) the assessor incorrectly converted the 25 degree ulnar deviation to 2% instead of 1% in breach of figure 29 in the AMA4 Guides.
The insurer also complains that Assessor Harrington did not record the restriction of movement in the cervical, thoracic and lumbar spine and therefore did not explain why he assessed DRE II for both the mid back and neck injuries.
The insurer’s submissions on review did not take issue with the Assessor’s findings on causation although the original submissions which were before Assessor Harrington do mention causation. The insurer had argued that the finding of a wrist flake or bony fleck in the claimant’s radiology was an old injury and that therefore the claimant has sustained soft tissue injuries only which have recovered. The insurer also submitted that the claimant sustained soft tissue injuries to her neck only which explained all of her symptoms in her shoulders and thoracic spine.
Claimant’s submissions
The claimant made no submissions as to the substance of the review noting the insurer’s main complaints appeared to be the failure to record findings and an error in the calculation of the wrist movement and submitted that instead of a long and drawn-out Review that the issues might be better addressed by treating the assessment as incomplete and returning the matter to Assessor Harrington to correct.
Procedural matters
The Panel first met on 28 July 2022 to discuss the matter. The Panel noted the insurer’s application raised issues with the assessment of the claimant’s spine and right wrist but not the shoulders and that the claimant had not raised issues with the shoulder assessment (0%).
The Panel also noted there did not appear to be any issue in the review as to causation of any of the claimant’s injuries or the method of assessment used, noting that the insurer’s submissions focused on the absence of recorded measurement and the proper application of the Guidelines.
The Panel invited the parties to make further submissions on the matters raised, but no further submissions were received.
Review of evidence
Claim form
Ms Robson submitted a statutory benefits claim form on or about 14 December 2017. She listed her injures as an avulsion fracture of her right wrist (which she noted was still being investigated), pain and bruising to multiple areas of her body including the neck, shoulders, left breast, left elbow, forearm and wrist, lower abdomen, hips, back, right knee and both feet. She also complained of a headache and right earache.
The claimant has provided a detailed statement[7] setting out the apparently frightening circumstances of the accident. Photographs provided show all the windows on the passenger side of her car were shattered and her statement says she was hit in the head by a can of spray paint from the insured vehicle and that the rear of her car was “speared” by a stick from a load on the insured vehicle.
[7] Dated 8 December 2020 at page 1 of the claimant’s bundle.
Ms Robson also details her symptoms and treatment which is consistent with what is provided elsewhere and the history she gave to the Medical Assessors in the re-examination.
The claimant also gives a history of her 2013 car accident (she made no claim for compensation, had neck pain but does not recall lingering back pain) and her two subsequent accidents, one three months after the accident the subject of the application before the Panel which resulted in no injury and no consultations and another in October 2018 which the claimant said caused neck and shoulder aggravation for a short time.
Treating medical evidence
The claimant’s treating GP is Dr Lambert of the West Wallsend Medical Centre. There are several letters of referral from him to various practitioners[8]. They contain the history of the accident and Ms Robson’s attendance on him later in the morning of the accident and notes:
“Currently has a sore right and left wrists and sore on both sides of the neck and some stinging across the face and neck and the L breast is sore. Sone stinging across the lower abdomen and some pain in the L hip area.”
[8] Including Edgeworth Physiotherapy, Minas Petrelis and Dr Marc Russo.
There are records and reports from many of the claimant’s treating practitioners. The Panel does not intend to summarise or refer to them all.
The claimant’s treating physiotherapist has provided the following:
(a) 13 December 2017 - Mr Lettner or Edgeworth Physiotherapy noted the main areas of concern were the claimant’s neck and right wrist suggesting “She certainly presents with symptoms of an avulsion fracture and soft tissue damage”;
(b) 7 May 2018 – Mr Lettner noted that the claimant’s main issue was “manual handling at work” which she struggled with due to her sore and weak wrist and upper limb in general;
(c)
17 July 2018 – in a letter to hand and upper limb surgeon Dr Rodd,
Mr Letter documents the claimant’s progress recording that her symptoms increased when she returned to work and that she had continued neck and thoracic spine pain, and
(d) 4 October 2018 – Mr Lettner noted that the claimant’s neck and thoracic spine pain increased after commencing an exercise physiology program.
Other specialists have written letters as follows:
(a) 5 July 2018 – letter from Dr Rodd to Dr Lambert noting that the claimant injured both wrists in the accident and that “over time her wrist pain did settle somewhat”. His report concerns the right clavicle, the medial border of the scapula and the right side of her neck. There was no pain reported over the right shoulder. He also reported an exacerbation when the claimant returned to work. He requested an MRI of the cervical and thoracic spine;
(b) 19 July 2018 – letter from Dr Rodd to Dr Ferch (neurosurgeon) seeking his views on the claimant’s thoracic disc bulge;
(c) 19 July 2018 – letter from Dr Rodd to the GP noting the MRI of the cervical spine was normal but there was what he described as a “prominent T6/7 thoracic disc bulge” compressing the cord and consistent with her symptoms;
(d) 26 July 2018 – letter from Dr Ferch to Dr Rodd, concerning the claimant’s neck and pain in the right shoulder and between the shoulder blades. He reviewed the radiology noting the claimant had minor degenerative changes in her neck with no neural compromise but that there was a disc bulge in the thoracic spine with some deformity of the spinal cord but normal signal. He advised surgery was not necessary and referred the claimant for pain management, and
(e) 16 August 2018 – letter from Dr Tame pain physician to Dr Ferch noting the multiple pain sites but that there was predominantly neck and thoracic pain. He recommended a multidisciplinary team approach to help the claimant “adjust to living with persistent pain and learn strategies for improving function, manage flare ups and adjust to work life with ongoing pain”.
The claimant consulted other specialists presumably due to her persisting symptoms and their treatment is recorded in the letters and the reports provided by the parties as follows:
(a) 17 November 2020 – letter from Dr Russo from Hunter Pain Specialists to Dr Lambert. He says the claimant was well before the accident but that she developed neck and right sided thoracic spine pain afterwards with lower back pain and pain down the right leg which has settled. He recommended a trigger point injection and physical therapy to reduce the pain and allow for treatment to improve the functioning of her scapula;
(b)
27 January 2021 - Dr Abson, spinal surgeon provided a report to
Dr Lambert noting a history of cervical neck stiffness, thoracic back pain, lower back pain with right sided sciatica which had resolved. Dr Abson notes Ms Robson did have radicular symptoms down the back of the arm and into her wrist suggestive of a C8 nerve root distribution but these symptoms he said have settled. Her main problem was thoracic pain radiating into the right scapular from which she has had no relief. He organised an MRI and reviewed her on 21 April 2021. He noted no neural compromise and considered her ongoing pain due to musculoskeletal back pain and suggested she follow up with Dr Tame for further pain management, and
(c) 1 February 2021 - Dr Burgess’ letter to Dr Lambert reported pain in both wrists, right hand dominance and that both wrists “have been getting progressively worse”. Ms Robson was reported to have moved from theatre work (which caused difficulty lifting instruments) to management (where typing is causing a concern). Dr Burgess records decreased range of motion in the right compared to the left wrist and referred the claimant for an MRI and further review. Dr Burgess’ letter dated 22 March 2021 suggests there is a ‘central perforation” of the triangular fibrocartilage complex (TFCC) and inflammation of the extensor carpi ulnaris (ECU) which she says is “consistent with the clinical presentation”. A referral for ultrasound guided injection into the wrist was given along with hand therapy.
Medico-legal evidence
Assessor Bodel on 15 December 2020 assessed 5% WPI for Ms Robson’s cervicothoracic spine injury, 5% for her thoracolumbar injury and 5% for her wrist impairment. A supplementary report dated 1 July 2021 following the receipt of additional information did not change his assessment.
Dr Anthony Smith in a report dated 19 February 2021 considered the claimant was embellishing her situation and assessed Ms Robson as having a 0% WPI. In a supplementary report dated 14 July 2021, written following the receipt of additional documentation he did not change his assessment.
Re-examination findings
Ms Robson attended the medical suites of the Commission on 14 September 2022. She was accompanied by her husband who remained in the waiting room during the examination.
Pre-accident history
Ms Robson lives with her husband and two children. At the time of the accident, she was on part-time maternity leave but employed on a full-time basis. She states that she was working random shifts and attended the gymnasium four times per week.
In 2015 Ms Robson had an episode of posterior pelvic pain related to her pregnancy which settled after the delivery. She reported a minor motor vehicle accident in 2013 when she was rear-ended by another car whilst driving and she was pregnant at that time. She states that there were no long-term effects of that accident.
History of the motor accident and subsequent treatment
Ms Robson gave a consistent history of the accident saying she was driving her car to work when another car reversed out of a driveway. She was unable to stop in time and her car was hit on the front passenger corner. She was wearing a seatbelt at the time and the airbags were deployed. Initially she experienced pain associated with bruising across the breast area and hips due to the seatbelt. She also had wrist pain more so on the right side. Ambulance and police did not attend the scene of the accident.
Ms Robson attended her GP on the day of the accident, and he organised an X-ray of the right wrist and referred the claimant for physiotherapy. An avulsion fracture in the right wrist was suspected and Ms Robson was treated conservatively with a splint. The physiotherapist also treated tightness in the right side of the neck and over the right scapula region. There was also an initial niggle in the lumbar region centrally.
The claimant’s neck pain persisted and was associated with occipital headaches and migraines. Ms Robson was also referred to an exercise physiologist and at that time the main pain was in the interscapular region. The initial physiotherapy was of minimal benefit, so the claimant changed physiotherapists. Her GP also referred her to Dr Rodd who organised an MRI and Dr Ferch, a neurosurgeon who advised there was no surgical treatment necessary. Due to her slow response to treatment, Ms Robson’s GP also referred her to a pain specialist, Dr Tame, who recommended spinal injections (which were not undertaken) and referred her to a psychologist. Dr Abson consulted the claimant and repeated the MRI but offered no other treatment. Another pain specialist was consulted and another physiotherapist who concentrated on strengthening exercises which was of some benefit. Another orthopaedic surgeon,
Dr Burgess was consulted and organised an MRI of the right wrist. Dr Burgess suggested a cortisone injection into the right wrist, but this was declined by the insurance company.
Current symptoms
At present the claimant’s worst pain is in the interscapular region, more on the right side, and which radiates under the right scapula associated with a shooting pain to the right lower ribs and occasionally pins and needles in this region. Headaches have persisted in the occipital region occurring two to three times a week and a more severe migraine about once per week. Ms Robson feels that there is persistent tightness in the right side of the neck which is more irritating when driving. There is continued pain in the right wrist on the ulnar side with a feeling of weakness in that region. She states that the right wrist cracks at times but otherwise her arms are asymptomatic.
There is a persistent central lower back pain with no radiation into the gluteal region or lower limbs.
Since the accident Ms Robson has transferred to a managerial role in nursing on a full-time basis due to her persistent weakness in the right wrist and shoulders and the need to avoid heavy lifting. She is able to walk and cooks at home but is unable to do any heavy cleaning. Ms Robson does drive but gets anxious when doing so and feels that the interscapular pain increases dramatically after one hour or so of driving associated with stiffness in the neck. Since the accident, she has not attended the gym and plays no sporting activities.
There was another motor vehicle accident on 30 October 2018 when Ms Robson was a passenger. She had initial neck and shoulder discomfort which she states settled quickly. There was another accident in 2019 when she was also a passenger but considers this was a minor accident with no long-term discomfort.
Present medication and treatment
Once or twice a week, Ms Robson takes Panadol or Nurofen and occasionally a Celebrex. Physiotherapy ceased one year ago but she continues to do home exercises.
Clinical examination
Ms Robson walked into the rooms with a normal gait and sat comfortably during the interview. She states that she is right-handed. The height was measured at 178 cm and weight 137 kg. Ms Robson stated that at the time of the accident she was 100 kg. The claimant attributes this increase in weight to her lack of physical activity since the accident (she has stopped playing all sports due to her injuries).
Cervical spine
On palpation there was no tenderness over the cervical spine but deep tightness in the paravertebral muscles more so on the right side associated with tenderness over the right trapezius muscle, but no guarding or spasm was noted in the cervical musculature. On testing range of movement, flexion/extension was 80% of expected range. Side bending and rotation of the neck were 90% of expected range to the left and 75% of expected range to the right. Thus, dysmetria (asymmetrical movement) was present.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms measured at 37 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 32 cm bilaterally (5 cm below the olecranon process).
Thoracic spine
On palpation there was tenderness over the lower right rhomboid muscle and right medial lower scapula. There was no tenderness over the thoracic spine. On testing range of movement there was a normal range of flexion/extension and side bending and rotation with no asymmetry of movement. There was normal sensation on testing and no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
Ms Robson walked with a normal gait and was able to walk on heels and toes. On testing range of movement there was a full range of flexion/extension and side bending. On palpation there was tenderness over the right sacroiliac joint and iliolumbar ligaments, but no guarding or spasm was noted in the lumbar musculature. Straight leg raise was 80° bilaterally with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 63 cm bilaterally (10 cm above the superior patella border) and at the maximum circumference of the calves 52 cm bilaterally.
Shoulders
On inspection of the shoulders no muscle wasting was apparent with no winging of the scapulae on movement. No crepitus was noted on passive movement and impingement tests were negative. Active measurements were measured using a goniometer and there was a full pain free range in all planes in both shoulders.
Right wrist
On palpation, there was tenderness over the ulnar border of the right wrist and radio ulnar joint. No sensory changes were noted with reasonable power on testing.
There was a decreased active range of movement in all planes of the right wrist when compared to the uninjured left and the normal range of motion upon which the AMA4 Guides are based.
The wrist measurements which were measured using a goniometer and repeated three times.
Wrist Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 30° 60° Extension 40° 60° Radial Deviation 10° 25° Ulnar Deviation 20° 30°
The Panel notes the right wrist range of motion appears to have decreased since Assessor Harrington’s assessment. This is, in the clinical judgment of the medical members of the Panel to be expected with the passage of time, the claimant’s return to full time work and her continued engagement with family duties. The Panel notes
Dr Burgess recommended treatment by way of injections into the right wrist which have not been funded by the insurer.
impairment assessment
Cervicothoracic spine
There is no issue of causation raised by the insurer in relation to this injury. The claimant has consistently complained of neck pain since the day of her injury (according to her statement and the records of her GP). The Panel is comfortably satisfied that Ms Robson sustained a soft tissue injury to her cervicothoracic spine.
To qualify for a DRE category I there must be pain or symptoms in the cervicothoracic spine. To be categorised as having a DRE II impairment requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in table 6.8of the Guidelines as:
(i)symptoms (shooting pain, burning sensation, tingling);
(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.
The claimant has persisting pain, had no guarding or muscle spasm and no neurological symptoms which would be considered non-verifiable radicular complaints. Ms Robson did however have dysmetria being asymmetrical restriction of motion. She therefore must be categorised as a DRE II and has a 5% WPI due to her cervicothoracic injury.
Thoracolumbar and lumbosacral spine
While there was tenderness adjacent to the spine, the medical members of the Panel did not find any tenderness over the thoracic spine itself. The claimant has been recorded by other examiners as having thoracic spine pain after the accident.
Again, there is no issue of causation and the Panel is satisfied Ms Robson sustained a soft tissue injury to her thoracic spine however with no radicular symptoms or signs of radiculopathy or other findings, Ms Robson’s thoracic spine injury is assessed as DRE I, attracting 0% WPI.
With the lumbar spine, the Panel is satisfied that the claimant did sustain a soft tissue injury to her lumbosacral spine however, as others have found this injury has recovered and no longer results in any impairment.
Right shoulder
Any injury to the right shoulder or impairment to the right shoulder caused by an injury to another part of the claimant’s body (such as her neck or thoracic spine) has resolved as there are no symptoms and signs present and therefore no assessable impairment at this point in time.
Right wrist
The insurer’s original submissions raised an issue with the age of the flake or fleck of bone found in the claimant’s right wrist and argued this was longstanding and therefore not caused by the accident and that the claimant has soft tissue injuries to the wrist which have recovered. The insurer’s review submissions did not raise any issue of causation.
The claimant has consistently complained of pain in her right wrist and her unchallenged evidence is that she has changed roles as a result. For completeness, the medical members of the Panel note the records and reports from the claimant’s treating practitioners and in particular the most recent material from Dr Burgess. The Panel notes it has not been taken to any pre-accident records suggesting the claimant had any pre-accident signs or symptoms in the right wrist. The Panel is therefore comfortably satisfied that the claimant injured her right wrist in the accident and that the restriction in movement in her wrist is as a result of that injury.
The restriction in range of motion measured and recorded above translates to the following upper extremity impairments (UEI):
Wrist Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion (figure 26, p 3/36) 30° = 5% UEI 60° Extension (figure 26, p 3/36) 40° = 4% UEI 60° Radial Deviation (figure 29, p 3/38) 10° = 2% UEI 25° Ulnar Deviation (figure 29, 3/38) 20° = 2% UEI 30°
All four impairments are added to provide a total UEI of 13% which converts to 8% WPI using table 3 on page 20 of the AMA4 Guides.
Whole person impairment
There is an impairment of 5% WPI for the cervical spine due to dysmetria (asymmetrical movement) and a classification of DRE ll. This impairment is combined with the right wrist impairment of 8% to provide a total WPI of 13%.
CONCLUSION
Although the Panel’s finding of a greater than 10% WPI is the same as Assessor Harrington’s, because the actual percentage differs (13% as compared to 16%), the Panel will revoke Assessor Harrington’s certificate and substitute its own finding.
0
0
0