Insurance Australia Limited t/as NRMA Insurance v Sayef
[2023] NSWPICMP 311
•3 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Sayef [2023] NSWPICMP 311 |
| CLAIMANT: | Marwah Sayef |
INSURER: | NRMA |
| REVIEW Panel | Terence O’Riain |
| MEMBER: | |
| MEDICAL ASSESSOR: | Dr Margaret Gibson |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| DATE OF DECISION: | 3 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; Personal Injury Commission Act 2020 and Personal Injury Commission Rules 2021; permanent impairment dispute in a motor accident on 10 April 2019; the insurer applied for a review of Medical Assessor (MA) Herald’s certificate dated 2 December 2021 finding the claimant’s permanent impairment was 13%; the claimant complained that the accident caused right and left shoulder, hip and spinal injuries; Panel re-examined claimant; Held – the Panel was satisfied that the accident caused all the referred injuries; using the Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd principle, the Panel assessed the claimant’s permanent impairment at 4% being for bilateral shoulder impairment referred from the cervical spine; all other referred injuries were assessed as 0%; MA certificate revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Degree of Permanent Impairment Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 2 December 2021 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a permanent impairment which is 4% and IS NOT GREATER THAN 10%: · cervical spine; · thoracic spine; · lumbar Spine; · hip (right hip trochanteric bursitis); · left upper extremity (Left Shoulder), and. · right upper extremity (Right Shoulder) |
REASONS
BACKGROUND
Ms Marwah Sayef (the claimant) suffered injuries in a motor accident on 10 April 2019 Ms Sayef was driving in Smithfield. It was evening and the road was dry. The vehicle was fitted with a head restraint, and she was wearing her seatbelt.
She reports slowing down to make a left-hand turn at an intersection when another vehicle hit her rear.
That car's impact on her rear bumper pushed her car to the left-hand side where it hit the gutter. Her car was badly damaged, had to be towed away, and was subsequently written off as beyond repair.
Ms Sayef called her husband. He picked her up and took her to Campbelltown Hospital, which was near their home. At that time Ms Sayef was mainly complaining about neck and scapula pain and headache.
After she was discharged Ms Sayef attended her treating general practitioner (GP). In the two or three days following the accident, her condition deteriorated with increasing neck and scapula pain, lower back pain, bilateral shoulder girdle pain, and eventually pain radiating down the right leg.
Her treatment history is set out below in the examination report.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the Claimant any damages and statutory compensation under the Motor Accidents Injuries Act 2017 (MAI Act).
Medical Assessor Herald provided his original medical assessment and provided reasons dated 2 December 2021.
The insurer applied for referral of a medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate for the relevant medical assessment.[1]
[1] Section 7.26(10) of the MAI Act.
On 16 February 2022 the President’s delegate referred the medical assessment to a Review Panel as she 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.[2]
[2] Section 7.26(5) of the MAI Act.
Review
The Review Panel met on 4 April 2022.
Part 5 of the Personal Injury Commission Act, 2020 (the PIC Act) enables the Personal Injury Commission (Commission) to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules
The assessment of permanent impairment under the MAI Act is undertaken in accordance with version 8.2 of the Motor Accidents Guidelines (Guidelines).[5] 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 prevail.[6]
[5] The Guidelines are issued following s 10.2 of the MAI Act. Section 10.1 of the MAI Act provides that an assessor must follow the Guidelines when assessing permanent impairment.
[6] Clause 6.2 of the Guidelines.
Assessment under review
Medical Assessor Herald certified the following:
“Permanent Impairment
The motor accident caused injuries resulting in a degree of permanent impairment being:
(a)Cervical Spine soft tissue injury with non–verifiable radicular complaints to the right upper limb;
(b)Lumbar spine soft tissue injury with non-verifiable radicular complaints to the right lower limb
(c)Right hip trochanteric bursitis”
The permanent impairment was greater than 10%, being 13%.
He did not assess permanent impairment for the bilateral shoulder impingement syndrome injuries because he assessed that condition as resolved.
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Cervical spine P110 AMA 4 Table 73 Yes 5% - 5% 2 Lumbar spine P110 AMA 4 Table 72 Yes 5% - 5% 3 Right trochanteric bursitis P85 AMA 4 Table 72 Yes 3% - 3% * %WPI = percentage whole person impairment
The parties identified these disputes and issues
The insurer’s grounds for seeking review were:
(a) the assessor failed to consider the documentary evidence;
(b) the assessor’s finding of “non-verifiable radicular complaints” was not in accordance with the regulations;
(c) the assessor failed to apply the legal test of causation, and
(d) the assessor failed to provide clear reasoning.
Facts and issues remaining in dispute:
The claimant's whole person impairment (WPI) resulting from physical injuries sustained in the subject accident.
The degree of permanent impairment attributable to the following injuries alleged by the claimant to be sustained in the subject accident:
(a) cervical spine;
(b) thoracic spine;
(c) lumbar Spine;
(d) hip (right hip trochanteric bursitis);
(e) left upper extremity (Left Shoulder), and
(f) right upper extremity (right shoulder).
The insurer accepts Medical Assessor Herald's findings and conclusions in relation to the following injuries:
(a) thoracic spine;
(b) left upper extremity (left shoulder), and
(c) right upper extremity (right shoulder).
The insurer lodged submissions dated 20 December 2021 stating that the insurer disputes Medical Assessor Herald's findings in relation to the following injuries:
(a) cervical spine;
(b) lumbar spine, and
(c) hip (right hip trochanteric bursitis).
The insurer submits the following body parts are confirmed to be the subject of the dispute regarding causation and require re-examination:
(a) hip (right hip);
(b) cervical spine, and
(c) lumbar spine.
The claimant opposed the application
However, the claimant raised additional grounds for review, as follows:
The claimant submits the panel should re-examine the claimant, consider all the injuries addressed within the original application and a new certificate issued replacing the previously issued of certificate of Medical Assessor Herald being:
(a) cervical spine;
(b) thoracic spine;
(c) lumbar spine;
(d) hip (right hip trochanteric bursitis);
(e) left upper extremity (Left Shoulder), and
(f) right upper extremity (Right Shoulder).
Documentation
On 4 April 2022 the Review Panel considered the following documentation:
(a) Medical Assessor Herald’s certificate dated 2 December 2021;
(b) Application for a review and attached documents;
(c) Reply and attached documents;
(d) the Proper Officer’s reasons dated 16 February 2022 referring this matter to a Review Panel, and
(e) all the documents which were provided to Medical Assessor Herald before he produced his certificate.
There was no additional evidence filed since the referral.
The Review Panel’s decision
The Review Panel considered all the aspects of the assessment under review.
Being mindful of the Court of Appeal’s authority in Sydney Trains v Batshon [41],[7] the Panel required a re-examination of the claimant because the history needed to be expanded.
[7] Sydney Trains v Batshon [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Because the dispute is sensitive Medical Assessors Gibson and Moloney decided they would conduct this examination jointly on behalf of the Panel. The assessment was to take place at the Commission’s examination rooms on a date to be fixed on a Tuesday afternoon.
The Commission’s rooms were not available until June 2022.
The Panel asked the parties to note that the assessment will address whether Ms Sayef suffered separate injuries to both shoulders and the right hip.
The parties were directed to provide up-to-date clinical notes before that re-examination. Ms Sayef was directed to bring her scans for the re-examination.
It became impossible for both doctors to coordinate their attendance at the Commission’s rooms so arrangements were made for Medical Assessor Gibson to examine Ms Sayef at her rooms in St Leonards on 30 August 2022.
REVIEW PANEL FINDINGS
Clinical examination
Medical Assessor Gibson examined Ms Sayef on 30 August 2022. She attended the examination alone but advised that her husband had driven her from their home in Gregory Hills. She had arrived at 10.18am and the examination commenced at 10.30am and concluded at 11.45am.
Ms Sayef did not bring her scans with her despite the directions to do so.
Pre-accident medical history and relevant personal details
Ms Sayef denied having had any physical problems before the accident. On clarification, she indicated that she had in fact visited Dr Gayed in January 2019. This was late in her pregnancy due to low back discomfort, but maintained this discomfort was entirely related to her pregnancy, and so resolved post-partum.
Ms Sayef migrated to Australia in 2008. Since arriving here, she had worked in a full-time retail position with Victoria’s Basement for three years and then worked in Family Day Care for a further three years. Then, from 2018 up until commencing maternity leave for the birth of her second child, she was working with Camp Australia providing before and after school care. She was working from 5.30 am to 8.30 am or 9.00 am and from 2.00 pm to 6.30 pm.
She said that she had returned to work after the accident working one to two days a week, but this had been for no more than two weeks. She stopped after that because she could not cope with the physical requirements.
Ms Sayef lives with her husband and two children, ages 3 and 7 years old. Her husband is not working in paid employment but acts as her father’s carer.
She said her husband attends to her father six hours a day seven days a week. Ms Sayef’s mother assists her. Her mother stays at the house four to five days a week, looks after the children, and performs all necessary household chores. Her mother assists Ms Sayef to dress and undress.
Motor accident history
Ms Sayef was driving her Mazda 3 Sedan through Fairfield. Her baby was in the back seat of the car. She had slowed down to turn left into Smithfield Road when another vehicle hit her from behind. Her car was damaged and towed.
Her husband arrived and took her to Campbelltown Hospital where the emergency staff assessed her, but the hospital did not perform imaging and she was discharged home after a few hours.
Ms Sayef was subsequently under the care of her regular GP, Dr Gayed at Trinity Health Care Centre in Liverpool, and he had referred her for physiotherapy treatment. She had three sessions of treatment but said this was then ceased due to pain and a CT scan was performed.
Dr Gayed referred her to the neurosurgeon, Dr Balsam Darwich, who examined her on 12 September 2019 and provided correspondence to her GP on the same date. Dr Darwich had noted:
“Since the injury she developed neck pain, lower back pain and at that time she was on maternity leave. She works with children. She couldn't return to work because of her symptoms. Recently the pain radiates to both lower limbs, more on the right side associated with paraesthesia in the right leg. On examination today, her gait was normal. Straight leg raising test was 80 degrees bilaterally with negative nerve stretch test. She had normal muscular power and sensation in all limbs. CT scan of the lumbosacral spine showed minor disc bulge at L4/L5 level but no obvious nerve root or cauda equina compression. I am going to organise an MRI scan of the cervical and lumbosacral spine and I will review her with the results.”
He saw her again on 30 September 2019 and noted in his letter to the GP that the MRI scan of the cervical and lumbosacral spine “were essentially normal and did not show any obvious nerve root, cauda equina or spinal cord compression and normal signal in all discs.” He opined that no surgical intervention was required and encouraged her to engage in further physiotherapy.
She was later referred to Dr Abraszko, another neurosurgeon who referred Ms Sayef for ultrasounds of both shoulders and right hip. On specific questioning, Ms Sayef said that Dr Gayed recommended she use a walking stick, and when she visited Dr Abraszko, the doctor had asked her why she required a walking stick. There was a recommendation for a corticosteroid injection, but Ms Sayef advised that she did not proceed because this procedure was too expensive.
There were referrals to a psychologist and possibly a psychiatrist. She had an exercise physiologist visit her at home having a total of 24 sessions. She had taken Panadeine Forte but found this was too sedating. She had subsequently been prescribed the other medications that she is currently taking.
Current treatment
Ms Sayef takes Avanza, duloxetine, and melatonin. For pain, she takes Nurofen two tablets per day and Panadol two to three tablets per day.
Current complaints
Ms Sayef described neck pain and stiffness being present most of the time, with pain spreading towards both shoulders but not elsewhere.
There is low back pain and stiffness most of the time with the spread of pain towards both hips and into both lower limbs.
There is mid and upper thoracic back pain which doesn’t radiate.
With respect to the upper limbs, she reported being unable to move her arms due to pain in the shoulders the latter arising from the neck although she also indicated that ultrasounds had shown that she had some bursitis bilaterally.
There were no symptoms in the upper limbs apart from some dysesthesia over the left deltoid.
With respect to the lower limbs, she reported weakness of the right leg, pins and needles and numbness which Ms Sayef indicated was over the anterior aspect of right thigh, right knee, right shin, and the top of her right foot. There were no symptoms elsewhere apart from a pins and needles feeling over the lateral aspect of the right hip, and similar symptoms on the left side but of lesser intensity.
Physical examination
Ms Sayef mobilised using a cane. She appeared able to support herself without the use of this aid although for short periods only.
On examination of the cervical spine, forward flexion was half normal, extension half normal, rotation half normal bilaterally, and lateral flexion three-quarters normal bilaterally. There was no asymmetry, muscle spasm, or guarding. Neurotension signs were negative.
On examination of the upper limbs, apart from some dysesthesia of the left deltoid, there was normal power and reflexes although with some giving way on the right side when testing power. She was also observed to be using both upper limbs equally to manoeuvre her right leg and also use the crutch or lean on the table whilst being examined.
On examination of both shoulders, movements were variable, on repetitive measurements using a goniometer and were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90 ° 80 ° 60 ° 90 ° 80 ° 40 ° Extension 40 ° 30 ° 20 ° 40 °30 ° 20 ° Internal Rotation 80 ° 90 ° 70 ° 90 ° 80 ° 70 ° External Rotation 60 ° 50 ° 70 ° 80 ° 60 ° 70 ° Abduction 80 ° 90 ° 60 ° 90 ° 80 ° 60 ° Adduction 50 ° 40 ° 30 ° 40 ° 30 ° 50 °
There was no crepitus or impingement on examination of either shoulder.
Consistency
She was asked about the variability of her shoulder movements at the time of this assessment, in particular, a greater range was observed when dressing and undressing, and goniometer measurements varied on repetition. She responded that she felt that shoulder symptoms had worsened over time and she had good days and bad days with respect to pain, which affected her shoulder mobility.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting, circumference measurements at thighs were 44cm and calves 35cm bilaterally.
There was normal power and reflexes bilaterally on her lower limbs, but there was a giving way on her right when testing power.
There was tenderness just behind the ASIS bilaterally with no specific point tenderness over either trochanteric bursa.
There was reduced sensation over the anterior aspect of both thighs, both shins, and the dorsum of both feet but not elsewhere.
Straight leg raise when seated on the couch was to 90° meaning that she could sit with her back straight and both legs extended. When sitting on the side of the couch, she pointed to the back of her knees and described some discomfort with straight leg raise.
When asked why the pain was there when seated on the edge of the couch and not when sitting on the couch, she said that the pain had been there, but she had not reported it. Straight leg raise when lying supine was 5° on the right and 10° on the left.
Hip movements were bilaterally symmetrical and within normal limits, as follows:
Hip movements Right Left Flexion 110 ° 110 ° Internal Rotation 30 ° 30 ° External Rotation 40 ° 40 ° Abduction 20 ° 20 ° Adduction 20 ° 20 °
Summary and opinion
Ms Sayef was involved in the subject accident on 10 April 2019. Since then, she reports neck, shoulder (referred from the neck), back, and bilateral hip pain together with sensory symptoms in her left arm and both lower limbs. I was unable to find any objective neurological abnormality to account for the weakness of the right leg which varied during the course of the assessment. At times she could support herself on the right leg, at other times, she dragged the leg, and at other times she lifted her leg to position and in the chair.
Impairment
Cervical [Cervicothoracic] spine
Ms Sayef complained of pain or symptoms but without vertebral body compression or vertebral fracture. There were no clinical findings of asymmetry, dysmetria, muscle spasm, or guarding. There were no non-verifiable radicular complaints. Thus, in reference to the Motor Accident Guidelines version 8.2 the cervical spine injury would be assessed at Diagnosis-Related Estimates (DRE) Impairment Category I, thus 0% permanent WPI.
It was noted that the original assessor had determined 5% WPI for the cervical spine. This was on the basis of the finding of muscle spasms and symptoms of neck pain which “…radiates to her head giving her headaches and also to her right upper limb.”
Neither of these criteria was evident during Medical Assessor Gibson’s examination, and furthermore, the Medical Assessor did not record any right arm symptoms in a radicular distribution.
Lumbar [Lumbosacral] spine
There were complaints of pain or symptoms but without vertebral body compression or vertebral fracture. There were no clinical findings of asymmetry, dysmetria, muscle spasm, or guarding. There were no non-verifiable radicular complaints. Thus, in reference to the Guidelines, the lumbar spine injury would be assessed at DRE Impairment Category I, thus 0% permanent WPI.
It was noted that the original assessor had determined 5% WPI for the lumbar spine. This appears to be based on the finding of muscle spasms and symptoms of “... back pain with pain radiating down her whole right lower limb and also over her hip.”
Neither of these criteria was evident during Medical Assessor Gibson’s examination, and furthermore, the Medical Assessor did not record any right arm symptoms in a radicular distribution. There was a component of referred pain to the shoulder girdles, this is however a somatic, rather than radicular feature, and so has been incorporated in the shoulder rating below, as it does not represent a non-verifiable radicular complaint.
Thoracic [Thoracolumbar] spine
Ms Sayef complained of pain or symptoms but without vertebral body compression or vertebral fracture. Medical Assessor Gibson did not find clinical signs of asymmetry, dysmetria, muscle spasm, or guarding. Medical Assessor Gibson did not find - verifiable radicular complaints. Thus, applying the Guidelines the thoracic spine injury would be assessed at DRE Impairment Category I, thus 0% permanent WPI.
Shoulders
Both shoulders could not be assessed using the range of motion because her movements had been variable over time and in different assessments, and they were also variable on the day. There was no pathology to account for the significant restriction exhibited when Medical Assessor Gibson examined Ms Sayef.
Ms Sayef indicated the shoulder restriction arose from her neck, being referred pain causing that restriction.
Hips
The Medical Assessor could not detect objective findings of Trochanteric bursitis.
Panel deliberations
The Panel met on 2 June 2023 and adopted Medical Assessor Gibson’s report as evidence in this review.
Medical Assessor Gibson performed a complete re-examination and her findings differed from Medical Assessor Herald’s assessment. This was because Medical Assessor Gibson could not detect objective evidence that would support similar findings, such as verifiable signs of radiculopathy, and because Ms Sayef’s range of motion was inconsistent.
Injuries:
The Panel was satisfied that the subject accident caused all the injuries referred for assessment.
Cervical [Cervicothoracic] spine
The Panel confirmed Medical Assessor Gibson’s permanent impairment assessment.
Lumbar [Lumbosacral] spine
The Panel confirmed Medical Assessor Gibson’s permanent impairment assessment. The Panel did not find any non-verifiable pain referral in Ms Sayef’s legs.
Shoulders
The MAA Guidelines permits assessment to be completed by analogy. The subject accident related shoulder impairment arises from pain referral from the neck and may be considered analogous to MILD intermittent acromioclavicular joint crepitation. This is because the movement restriction is variable and pain related. Further, there was absence of objective clinical findings in either shoulder. The Panel has also noted, the original assessor had opined the shoulder condition had resolved.
Applying the Nguyen [8]principle and referring to Table 19 there was 10% joint impairment, then using Table 18 for acromioclavicular joint, 10% of 15% WPI, gives 1.5% WPI, and rounding this to the next closest integer, gives 2% WPI.
[8] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
Hips
As there were no clinical signs of trochanteric bursitis and hip movements gave rise to no impairment, the Panel assessed permanent impairment in each hip as 0%.
Apportionment for pre-existing or subsequent symptomatic impairment:
Not applicable
Panel decision
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Cervical spine P110 AMA 4 Table 73 Yes 0% - 0% 2 Lumbar spine P110 AMA 4 Table 72 Yes 0% - 0% 3 Thoracic Spine P110 AMA 4 Table 74 Yes 0% - 0% 4 Hips P85 AMA 4 Table 72
P78 AMA 4
Table 40Yes 0% - 0% 5 Right shoulder AMA 4, Table 18,19 pp 58,59
As per NguyenYes 2% - 2% 6 Left shoulder AMA 4, Table 18,19 pp 58,59
As per NguyenYes 2% - 2%
* %WPI = percentage whole person impairment
Determination regarding the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident
The total percentage of permanent impairment for assessed injuries caused by the motor accident is 4%. Therefore the total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage of WPI impairment is not a direct measure of disability. A finding of 0% WPI indicates there was an injury caused by the motor accident and there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Permanent impairment:
The Review Panel’s findings concerning the degree of permanent impairment of the injuries caused by the motor accident are different from Medical Assessor Herald’s Permanent Impairment Certificate dated 2 December 2021.
Accordingly, the Review Panel revokes Medical Assessor Herald’s certificate and will issue a new Permanent Impairment Certificate.
Review Panel certification
Member O’Riain, Medical Assessor Gibson, and Medical Assessor Moloney have viewed this certificate and confirmed they agree with the findings.
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