Insurance Australia Limited t/as NRMA Insurance v Rossell
[2024] NSWPICMP 529
•1 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Rossell [2024] NSWPICMP 529 |
CLAIMANT: | Catherine Rossell |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Geoffrey Stubbs |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 1 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Medical dispute; degree of permanent impairment of the injured person as a result of the injury caused by the accident; whether those injuries are greater than 10%; claimant claimed to have sustained injuries in a motor vehicle accident to her cervical spine, lumbar spine and right shoulder; Held – Medical Assessment Certificate revoked; claimant suffered an injury to her neck and right shoulder following the motor accident but no injury to lumbar spine; permanent impairment 15%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Degree of Whole Person Impairment Certificate issued under s7.23(1) of the Motor Accident Injuries Act 2017 (the Act) WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The Panel revokes the certificate of Medical Assessor Harrington dated 6 July 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10% (15%): Cervical Spine – 5% Right Shoulder – 10% The following injuries were not caused by the motor accident: Lumbar Spine |
STATEMENT OF REASONS
INTRODUCTION
Catherine Rossell (the claimant) alleged she sustained injuries in a motor vehicle accident that occurred on 13 September 2018 was driving along Medowie Road in Williamstown at when another driver travelling in the opposite direction along the same road crossed into the incorrect lane and collided with the rear right segment of her vehicle causing her vehicle spin. She claims injuries to her cervical spine - soft tissue injury with aggravation of C5/6 spondylosis with C5/disc protrusion which is ongoing with disc osteophyte complex; her right shoulder – soft tissue injury-post-traumatic stiffness of the right shoulder with AC joint sprayed with residual sinusitis of the AC joint within impingement on the abduction and some minor chondral loss in the shoulder joint with a torn superior labrum; and her lumbar spine – soft tissue injury with post-traumatic lumbar stiffness with dysmetria and facet arthralgia and ridiculous complaint with right buttocks and thigh sciatica with impact on ADLs, were caused by the accident and have caused her whole permanent impairment (WPI) greater than 10 %.
There is a medical dispute between the claimant and the insurer as to the extent of the permanent impairment occasioned by the injuries cause by the motor accident.
The insurer seeks a review of a medical assessment pursuant to s 7.26 of the Motor Accidents Injuries Act 2017 (the MAI Act). The medical assessment the subject of this review was conducted by Medical Assessor Harrington (the Medical Assessor), who pursuant to a certificate and reasons are dated 6 July 2023 assessed injuries caused by the motor accident gave rise to a degree of WPI of 13% (the medical assessment).
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought. The President’s delegate referred the medical assessment to the Review Panel (the Panel) was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
Section 10.2 of the MAI Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 10.2 of the MAI Act for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive. The review assessment is conducted pursuant to AMA4 and Guidelines.
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the claimant was involved in a motor accident of considerable “violence” mainly injuring her neck and right shoulder as well as her lumbar spine to a much lesser extent.
The Medical Assessor diagnosed the claimant is having sustained a soft tissue injury (whiplash) of her cervical spine as well as a soft tissue injury to the right shoulder which may have developed into thoracic outlet syndrome. These injuries have required extensive treatment including Botox and cortisone injections. The claimant presented with mechanical neck pain due to underlying spondylosis at C5/6. There was no evidence of radiculopathy. In the Medical Assessor’s opinion, the claimant’s right shoulder complaint was a combination of localised pathology and somatic referred pain from her neck. Her lumbar spine was manageable and had not required treatment beyond some physiotherapy.
The Medical Assessor found that the injuries to the claimant’s spine, right shoulder and lumbar spine were caused by the motor accident. He assessed the asymmetric loss of neck movement in the DRE cervical category II at 5% WPI. Even though the claimant had pre-existing cervical spondylosis at the time of the accident there was no objective evidence that the underlying pathology was symptomatic therefore there was no deduction. The restricted range of movement in the claimant dominant right shoulder was due to a combination of localised pathology and referred pain from her neck and was assessed at 8% WPI. Although there was some discomfort at times in the claimant’s lower back she had a very good range of motion without neurology. The lumbar spine was assessed at DRE Lumbar Category I at 0% WPI. This assessment equated to 13% WPI.
EVIDENCE BEFORE THE PANEL
The Panel issued a direction to the parties requesting a provision of a joint bundle which was provided as directed.
Clinical and Treatment Evidence
In a discharge report from Wyong Hospital dated 13 September 2018. It recorded that time of the accident the claimant had right upper limp pain (clavicle, elbow). Over the hours following the collision, the claimant had developed in increasing pain in her right upper limb and right knee. She had muscular soreness in her back. On examination there was no external sign of head injury. She had a full range of movement in her neck. The right shoulder was tender predominantly and anteriorly with a reduced range of movement. She had a previous right elbow injury and there was some tenderness over the lateral condyle. The claimant had no apparent chest or abdominal injury and was mobilising normally. Imaging showed no fractures.
A MRI of the cervical spine and right shoulder was taken on 28 September 2018. The claimant had reported the history of numbness and pain. It was recorded in the cervical spine, the C5/6 disc showed minor posterior discophytic bulging without significant foraminal compromise. The other discs were unremarkable. There was no cord lesion or compression of the existing nerve roots. There was no paraspinal mass. At the right shoulder, the rotator cuff tendons appeared intact with only minor tendinitis in the subscapularis. There was tenderness of the superior labrum extending anteriorly and there some minor chondral loss in the shoulder joint. There was no loose body. The AC joint showed minor inflammatory change with minor osteolysis at the outer end of the clavicle. There were features of a superior labrum anterior to posterior lesion with a torn anterosuperior labrum. No cuff tear of note. AC joint showed inflammatory change.
On 14 September 20218, a CT scan was taken of the claimant’s cervical spine. A straightening of the cervical curvature was noted. Mild marginal osteophytes with the reduced intervertebral disc height was seen at C5/6 level. There was also consequent narrowing of bilateral neural foramina and mild impingement of bilateral exiting nerve roots at this level. There was no bony injury or other bony abnormality.
A further CT scan of the cervical spine taken on 13 April 2021 showed minimal broad-based posterior disc herniation and mild posterior lipping at C5/6, producing mild spinal canal stenosis and mild bilateral neural foraminal stenosis. Morphology was very similar to the previous images from September 2018. There was no particular facet arthropathy.
In report dated 26 November 2018, Dr Ed Bateman, orthopaedic surgeon reported that he had seen the claimant who had explained that all the force of the motor vehicle accident was taken through her right shoulder. He opined that the claimant had a whiplash injury with a neck and scapula problem, which had not resolved, and the claimant still had persisting pain. Upon review the claimant had signs of scapula instability with rhomboid spasm, weakness of the middle trapezium muscles, and over active pec minor and subcoracoid impingement. Her MRI scan showed there was possible labrum pathology, but it was difficult to tell on examination. He recorded the claimant had no issues with her shoulder prior to the accident. He opined that it is likely that the claimant sustained a permanent impairment from the motor vehicle accident, and it was possible that she would have ongoing issues with her neck and shoulder.
In a medical report dated 18 July 2019, Dr Bateman reported that he had seen the claimant again and she had experienced no improvement. He recorded that the accident had had an impact on the whole of the claimant’s body. She had a pain syndrome and was unable to participate in normal core strengthening work. As a result, she had deteriorated. She is now seeing the effects of postal instability throughout her entire body. She has excessive lumbar lordosis with pelvic tilt. She is weak through the posterior hip complex. She is tight through the medial head of gastroc fascia and also has secondary plantar fasciitis as a result. She has a painful scapula instability which is resulting in overload of the rhomboids and the scalene. She has compression of the thoracic outlet, which is stretching the plexus, increasing the pain response. She has very overactive pec minor which was locking the shoulder in a forward position. He recommended Botox relax to relax the muscle for three months to give the opportunity to a therapist to work stability. He opined that the AC joint was also compressed causing overload and recommended injecting that muscle with local anaesthetic and cortisone would help reduce the inflammation in the shoulder with a targeted injection at the base of the coracoid.
In a report dated 13 September 2019, Dr Simon Tame, specialist in pain management, following an examination of the claimant, opine that the claimant’s right shoulder was held in a protracted posture. She was exquisitely tender over the coracoid process and the AC joint. He was of the view that the claimant’s right shoulder may respond to Botox therapy. The claimant underwent two Botox injections and cortisone injections for her AC joint.
Medico-Legal Evidence
In report dated 22 April 2021, Dr. Drew Dixon is that the claimant had reported pain and stiffness in her neck with difficulty turning to the side which impacted on her ability to reverse park, change lanes and check the blind spots. Her neck pain disturbed her sleep. She reported right shoulder brachialgia with trapezial muscle pain and has radicular complaint in in the thumb, index and fingers. She has a past history of carpal tunnel decompression which had settled she had a good result with her carpal tunnel decompression. She had symptoms of paraesthesia are radiating from her neck.
She reported pain and stiffness in her right shoulder with difficulty elevating the arms above shoulder height and reported pain in the trapezius muscle and posterolateral deltoid muscle as far as the deltoid insertion and pain in the deltopectoral groove area. She had difficulty sleeping on the right side due to pain and has difficulty reaching objects on high shelves and difficulty with overhead work at home such as high dusting. She has difficulty with hairdressing. She has difficulty with heavy lifting and carrying due to right shoulder brachialgia and residual low back pain.
Further to an examination and review of the radiological investigations, Dr Dixon opined relevantly that the claimant had aggravation of C5/6 spondylosis which was ongoing with osteopath complex; right C5/6 radiculopathy; post-traumatic stiffness of the right shoulder with AC joint sprain with residual synovitis of the AC joint with impingement on abduction and some minor chondral loss in the shoulder joint with a torn superior labrum; and low back strain injury with post traumatic lumbar stiffness, which was settling without radicular complaint.
He assessed the claimant’s WPI for his cervical spine as DRE category III - 15% WPI less 1/10 for cervical spondylosis giving 14% WPI; post-traumatic stiffness in the right shoulder at 8% WPI and lumbar spine at 0% WPI.
In a report dated 28 November 2022, Dr Drew Dixon recorded that the claimant reported persisting pain and stiffness in her neck with difficulty turning to the side which impacted on her ability to reverse park, change lanes and check blindspot and her neck pain continues to disturb her sleep. She reported persisting right shoulder brachialgia and trapezial muscle pain. She reported that the radicular complaint with pain with paresthesia in her thumb and index fingers had settled but she had radicular complaint with paresthesia in the ring finger of the right hand. She reported that she had a history of carpal tunnel decompression which had settled.
She also reported localised pain to the vertebra prominens spinous processes, which remains tender as well as the lower cervical facet joints on the right.
She reported persisting pain and stiffness of her right shoulder with difficulty elevating her arms above shoulder height and difficulty elevating her right arm above shoulder height and reported pain in the trapezius muscle and posterolateral deltoid muscle as far as the deltoid insertion and pain in the deltopectoral groove area and pain at the site of her Botox injection into the pec minor. She still had difficulty sleeping on the right shoulder due to pain and difficulty reaching objects on high shelves and difficulty with overhead work at home such as high dusting. She had difficulty with hair dressing and has difficulty with heavy lifting and carrying due to right shoulder brachalgia and low back pain. She had difficulty sleeping on the right shoulder due to pain.
She reports her low back pain which had previously settled has deteriorated and she has difficulty with prolonged sitting at her computer doing data entry and word processing as part of her online duties as an assessing officer for the government. She reported radicular pain with pain extending into the right buttock and thigh and reported that repetitive bending and stooping aggravated her back pain, as did prolonged sitting and stooping. She reported a sitting tolerance of half an hour and a standing tolerance of 20 to 30 minutes and a driving tolerance of up to one hour, after which she had low back pain. She reported her back pain can disturb her sleep and was one of the reasons she has not been able to return to riding horses.
Following an examination of the claimant and referring again to the radiological investigations, Dr Dixon confirmed his previous diagnosis that the conditions outlined above were causally related to the injuries received in the subject motor accident. Her condition had stabilised, and no further improvement was expected. Dr. Dixon assessed the cervical spine as a whiplash injury with post-traumatic stiffness and dyslexia and a C5/6 disc protrusion with aggravation of previous asymptomatic C5/C6 spondylosis which is ongoing – DRE II-5% WPI. The right shoulder was diagnosed as post-traumatic stiffness, assessed as 7% WPI and the lumbar spine was also diagnosed as post-traumatic stiffness, asymmetry and facet arthralgia and radicular complaint assessed at DRE Category II - 5% WPI.
In a report dated 28 January 2022, Associate Professor Michael Shatwell, following taking a history, examining the medical records and the radiological investigations, and examining the claimant, opined that the claimant suffered soft tissue injuries, which had stabilised. He assessed shoulder WPI at 4%. He did not consider there was any WPI of the right shoulder caused by any pre-existing or unrelated condition. He opined that the claimant’s minor complaints and disabilities were reasonable in relation to the soft tissue injury sustained the right shoulder. There was no impairment of cervical spinal function which had returned to normal after the soft tissue injury. He opined that the claimant had that the recovery from soft tissue injuries to the neck and shoulder girdle should continue with the passage of time if the claimant continues with her general exercise programs to maintain the muscles and tendons around her right shoulder girdle. There was no disruption of the right rotator cuff. The irregularity of the labrum was not caused by the accident in question and in his opinion, there was no glenohumeral and subacromial effusion in the MRI scan performed approximately two weeks after the accident. He opined that effusions would be expected if the labrum tear were acute.
Re-Examination
The Panel determined that a re-examination of the claimant was necessary. Medical Assessor Stubbs undertook the re-examination on behalf of the Panel on 15 December 2023 in person, the report of which is as follows.
“Ms Rossell this 46 years old and lives Central Coast. By training she is a private investigator who for the last decade or so has been involved in security vetting for the Department of Defence. Prior to Covid this work would have her travelling extensively around Australia to do in person to person interviews, now it is largely online. She has lived in the Central Coast since Christmas of 2017. She has 6 ½ year old twin daughters eight and half old son. She lives with her partner in a single story four-bedroom home and likes horse riding.
Her motor vehicle accident (13 September 2018) occurred when she was 41 years old and was leaving RAAF Williamstown after face-to-face security vetting. She was driving a four-wheel Triton when she saw an oncoming Holden Barina on her side of the road. She swerved left but had an oblique head-on collision with the impact on the right front of the Triton. The Barina was towed away and written off. She self-extracted from the accident and had the presence of mind to dial emergency services for the other driver. RAAF paramedics assessed her at the scene of the accident and her partner drove to the site to take her back to the Central Coast. She went to Wyong Hospital Accident Emergency that night with the principal injury being to her right shoulder/arm. There was a right elbow fracture as a child but was otherwise her health was unremarkable. She was physically active and enjoyed horse riding.
Right shoulder was painful and stiff, but she was able to drive again within a fortnight of the accident to attend an appointment being in Singleton. Covid has made her life considerably easier as she now works from home and does not travel.
Since the motor vehicle accident: there have been two further episodes, one on 10 July 2020 when she was a witness to a fatal truck accident. Since she has been troubled by nightmares and other symptoms of PTSD since, this is unrelated to the present accident. A second injury occurred on 20 July 2022 when she stumbled on stairs and suffered a Lisfranc fracture in her right foot treated by open reduction and internal fixation. The pins have been removed but the convalescence was complicated by deep venous thrombosis with probable small pulmonary embolism in August 2022. She returned to work from this injury in January 2023. This too is unrelated to the motor vehicle accident.
Present situation: – constant right shoulder pain. She has had to switch to a left-handed mouse. She finds the keyboarding aggravates shoulder pain and neck pain and stiffness. The effective range of motion of her right hand is to eye level, shoulder is too stiff and painful to use above this point. She struggles to hang out the washing, has changed her horses saddle to a lighter one. She uses front fastening bra and struggles with perineal care. She cannot lie on the right side to sleep. The pain frequently wakes. Otherwise working (except for the Lisfranc fracture) has been made easier by the ability to her work from home.
She did attend her general practitioner after the accident. X-rays Wyong Hospital showed no fracture of the shoulder but the MRI shortly after the motor vehicle accident revealed a significant injury. This has been treated conservatively by mixture of physical therapy under the supervision of Dr Bateman. Botox injection to temporarily paralyse the pectoralis minor muscle was un-successful. She had one cortisone injection but this did not help.
Her principal complaints are therefore shooulder stiffness and disturbed sleep and continuing neck pain and stiffness. She takes occasional nonsteroidal anti-inflammatory agents to manage the pain and has no history of any endocrine disturbances such as diabetes and thyroid disease thyroid disease.
Clinical examination: Ms Roussell 169 cm tall and weighs 92 kg. She can tip toe and heel toe walk and will hop and squat but is troubled by the residual effects of the Lisfranc fracture on the left side.
Cervical spine/upper extremity: – shows decreased range of motion with side bending and rotation to the left (away from the painful right shoulder.) Rotation to the right is full, flexion and extension is good and with the arm supported across the chest to immobilise shoulder can perform a sit up from supine position. Tensioning her neck muscles with the shoulder properly supported does not cause difficulty there is no primary neck pain. The asymmetry of motion with neck movement is from stretching the suspensory muscles of the right scapular. There is hypersensitivity to touch spreads down the right hand side of the neck into the right upper chest and to the outer side of the front of the right arm about two mid arm level. Hypersensitivity follows a similar distribution posteriorly. This distribution corresponds to C3/C4 contribution to the supra suprascapular nerve and C5/6 contribution to the exhilarating nerve raising the possibility of the brachial plexus injury though these peripheral nerves arise from different trunks of the brachial plexus. Grip strength is 5/5 on the right 5/5 on the left with the elbow held at the side. Reflexes are brisk and symmetrical and the girth of the arms and forearms is within 1 cm of each other though the normally non-dominant left side slightly the greater. Tension and compression signs do not aggravate the neck pain and there are no positive nerve root tension signs. Elbows hands and wrists are normal and strengthen use of the right arm with the elbow at the side is good. Lift off test is weak and the scapular musculature is notably wasted compared to the left. The reflexes are brisk and symmetrical. There is no peripheral nerve compression and no distal sensory loss.
Range of motion of the shoulder is charted below.
Right
left
Flexion figure 38
110° – 5% UBI
180°
Extension
40° – 1% UBI
60°
Abduction figure 41
80° 5% UBI
180°
Adduction
20° 1% UBI
40°
External rotation figure 44
40° – 1% UBI
100°
Internal rotation
40° – 3% UBI
100°/T4
There is disorganised scapulo-thoracic movement with the scapular rotating on the initiation of active movements of the shoulder rather than at the end. The glenohumeral joint seems to be the prime source of stiffness. The scapular does not wing. There is generalised tenderness over the glenohumeral joint to firm pressure directly over the joint but not to surrounding areas for instance suprascapular pressure does not elicit tenderness. The right shoulder is very stiff. There is sensory disturbance with branches of the brachial plexus. Motor function in the deltoid is weak but represents wasting from lack of use rather than specific injury to the auxiliary nerve.
The remaining clinical examination is entirely normal. There is no injury to the cervical or lumbar spine, no abnormalities in the left upper limb or the right upper limb below the shoulder and normal function and movement of the lower limbs with the exception of some residual discomfort in the unrelated fracture in the left foot.
Imaging studies –There are reports for MRIs performed at the request of Dr Louis Fourie Ms Rossell is done by PRP Diagnostic Imaging Central Coast. The MRI of the cervical spine shows some minimal changes at the C5/6 disc level but is otherwise unremarkable. The MRI of the right shoulder confirms the presence of an SL AP lesion in the anterosuperior labrum. It is also noted that the AC joint shows minor inflammatory changes with minor osteolysis at the outer end of the clavicle. Unfortunately, the films are not available for review.
Presentation
In all, Ms Rossell was very straightforward and cooperative in the clinical examination.
WPI Assessment
In the shoulder range of motion methodology is appropriate and the combined upper extremity impairment is 16% UEI which equates to10% WPI.
In the cervical spine there is continuing asymmetry and spasm but no radiculopathy. She would classify as DRE II for a further 5% WPI
Cervical spine
AMA4 table 70
5% WPI
no deduction for pre-existing problems
net impairment 5%
Right shoulder
AMA figures 39, 41, 43
9% WPI
nil
10% WPI
PANEL’S CONCLUSIONS
The Panel concludes that the claimant has suffered an injury to her neck and right shoulder following the motor accident. There is no injury to the lumbar spine.
The injury to the right shoulder and neck was documented immediately after the accident and continuing with her principal ongoing difficulty being persisting stiffness and functional limitations on the use of the right arm. There is a clear causal relationship between the motor vehicle accident to the changes noted on the MRI performed two weeks later.
The Medical Assessor and Dr Dixon both opined there was restricted range of motion in the shoulder and assessed 8% WPI, which is consistent with the finding of the Panel on re-examination at 10% WPI.
Associate Professor Michael Shatwell recorded a somewhat better range of motion in his clinical examination of January 2022. His impairment assessment on range of motion would equate to a 6% WPI.
There is marginally more stiffness in the right shoulder on today’s examination than was present previously. The difference is small and may simply reflect day-to-day variation.
Her immediate symptoms following the accident also included primary onset of neck pain. This is reflected by continuing asymmetry in motion and some spasm in the right trapezius. There is diffuse sensory disturbance associated with this but no evidence of cervical radiculopathy.
The Medical Assessor and Dr Dixon also agreed that there was an impairment in the cervical spine occasioning permanent impairment. Associate Professor Shatwell opined there was no impairment in the cervical spine.
The Panel’s examination showed there was a comfortable full range of movement in the cervical spine with the claimant lying supine and both arms folded across the chest and supporting each other. However, performed standing or sitting up with the shoulder free there was spasm in the right parascapular musculature with side bending and rotation to the left. This was consistent on examination.
The Panel is satisfied based on Medical Assessor Stubb’s examination of the claimant there is asymmetry and spasm of movement in the cervical spine but no radiculopathy and likewise assessed the cervical spine as DRE II for a further 5% WPI, bringing the total impairment to 15% WPI.
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