Insurance Australia Limited t/as NRMA Insurance v Turner
[2022] NSWPICMP 372
•6 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Turner [2022] NSWPICMP 372 |
| CLAIMANT: | Hayley Turner |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| MEDICAL ASSESSOR: | Dr David McGrath |
| DATE OF DECISION: | 6 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Whole person impairment dispute; car and pedestrian collision; accident on 22 September 2018; injuries to left shoulder, lumbar spine and left hip; late onset of low back pain; causation considered; Held – the Panel revokes the certificate of Medical Assessor Sharp dated 29 May 2021; the Panel determines that the following injuries were caused by the motor accident: cervical spine (soft tissue injury), lumbar spine (soft tissue injury), left shoulder (soft tissue injury); the injuries caused by the motor accident have a total whole person impairment of 8%. |
| DETERMINATIONS MADE: | The Panel revokes the certificate of Medical Assessor Sharp dated 29 May 2021 The Panel determines that the following injuries were caused by the motor accident: · cervical spine - soft tissue injury; · lumbar spine – soft tissue injury, and · left shoulder - soft tissue injury. The injuries caused by the motor accident have a total whole person impairment of 8%. |
STATEMENT OF REASONS
Introduction
This is an application for a review of the determination of Assessor Sharp (the assessor) dated 29 May 2021 by the insurer.
Assessor Sharp attributed a 16% whole person impairment (WPI) to the claimant. This consisted of an assessment of 12% WPI for the left shoulder which involved a fracture and rotator cuff tear and 5% WPI for the lumbar spine. Both of these injuries were found by the assessor to be causally related to the accident.
The claimant was injured on 22 September 2018. She was a pedestrian/runner when a car collided with her. She was hit by a car on her right side landing on her left side. She immediately suffered extensive contusions down the left side of her body and pain in the region of her left shoulder.
Following the accident, the claimant suffered the following injuries:
(a) injury to the left shoulder with a comminuted fracture of the greater tuberosity;
(b) left rotator cuff injury;
(c) right knee injury;
(d) severe contusions and haematoma;
(e) bruising to the left leg;
(f) low back injury, and
(g) general blows, bruising and a closed head injury.
The review
On 22 November 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as she was satisfied that there was a reasonable cause to suspect that the medical assessment of Assessor Sharp 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 revisions 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[1] 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).
[1] Section 7.26(5A) of the MAI Act
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[2].
[2] Section 41(2) of the PIC Act
Rules 127 to 130 of the Personal Injury Commission Rules (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 proceeding solely based on the written application[3].
[3] Rule 128 of the PIC Rules
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned[4].
[4] Section 7.26(6) of the MAI Act
The Panel undertook an examination of the claimant on 23 March 2022 by Medical Assessors McGrath and Moloney. Their findings form part of this report and are adopted by the panel.
Insurer’s submissions
Left shoulder
The insurer says that the assessor failed to examine the claimant’s left shoulder in accordance with the Motor Accident Guidelines.
The insurer says the assessor failed to apply the entire gamut of his clinical skill and judgment in accordance with cls 6.40 and 6.41 of the Medical Assessment Guidelines (the Guidelines) for the purposes of accurately assessing active ranges of motion.
Further, the insurer says that the assessor failed to provide a comprehensive analysis of the ranges of motion as required by cl 6.50 the Guidelines, particularly so with the use of passive testing, repetition on measurement, and providing indication of whether maximal effort was apparent.
The insurer also says that the assessor has not adequately set out his path of reasoning in providing an opinion of non-verifiable radicular complaints pertaining to a distribution of a specific nerve root.
The insurer says that the assessor did not comprehensively examine the claimant’s left shoulder. In support of this the insurer says that there had been differing medical impressions provided within the available medical evidence and that these differing medical impressions were not brought to the claimant’s attention to ensure accuracy and procedural fairness in accordance with cl 6.41 of the Guidelines.
The insurer refers to cl 6.41 of the Guidelines which provides:
“where there are inconsistencies between the medical assessors clinical findings and information obtained through medical records and/or observations of nonclinical activities, the inconsistencies must be brought to the injured person’s attention… The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
The insurer says that the claimant had a greater functionality of his left shoulder which the assessor did not consider. The insurer refers to the clinical records of Be Mobile Physiotherapy at A3. The insurer says that these records provide the impression that the claimant is making steady progress in the left shoulder, referring to an ability to reach active ranges of motion.
The insurer also relies on a closure report of Melissa Waugh, occupational therapist, dated
18 February 2019 at A4. This refers to the claimant having made a good recovery and return to her leisure/exercise activities including running and breaststroke swimming.The insurer says the rehabilitation medical evidence raised a critical inconsistency between the restrictions which are alleged and the evident recovery/functionality gained in the left shoulder prior to assessment. The insurer says that the Guidelines expect a Medical Assessor to address the inconsistency with the injured person to produce an accurate and fair assessment of impairment, if any.
The insurer says that the assessor had not engaged examination of the left shoulder as comprehensively as circumstances warranted. This was said to be particularly so with use of passive testing or repetition on measurement to provide a more accurate and verifiable impression of the claimant’s maximal ranges of motion. The insurer submits that the assessor had not applied his clinical skill and judgment in assessing, and dispelling, whether the results of the left shoulder impairment was in fact plausible, in light of the medical evidence which revealed a degree of regained functionality in the left shoulder.
Lumbar spine
The insurer asserts that there is an expectation for a Medical Assessor to give adequate detail in respect to the specific distribution of nerve root/s which are considered as demonstrating radicular symptoms without any objective evidence of same. The insurer says that the assessor’s reasoning is incomplete and does not afford the parties with an appropriate medical impression of the claimant which corresponds to a DRE II category assessed.
The insurer says that the assessor has incorrectly applied a DRE II lumbosacral category when a DRE I category is attributable to the claimant’s injuries particularly as the finding of non-verifiable radicular symptoms is not accompanied by sufficient evidence with reference to table 6.8 of the Guidelines.
The insurer says that the assessor accepted the claimant’s self-reported complaint of a decrease in pinprick sensation in the lateral aspect of the left thigh, to render this as a non-verifiable radicular complaint, without any further analysis/details in respect to the specific nerve/dermatomal distribution which relates to this.
The insurer says that a DRE I assessment is clinically more appropriate in the circumstances. The insurer says that the assessor did not provide any substantial indication of injury which would warrant an impairment classification of DRE II as opposed to DRE I.
Claimant’s submissions
The claimant submits that there is a uniformity of opinion that the claimant suffers from significant restrictions of movement and function in her left shoulder. The claimant says that where the medical opinion differs, is to the extent of the degree of impairment or loss of function/restriction of movement.
The claimant says that there is no inconsistency in the assessment of the assessor of the left shoulder. He simply found a greater restriction than those found by Dr Wallace and so came to a higher percentage of impairment.
The claimant says that the insurer has not taken into account the findings of their own doctor, Dr Wallace, who reported with respect to the left shoulder that;
“she had a range of motion, flexion of 120°, extension 100°, adduction 20°, external rotation 20° and internal rotation 80°. There is tenderness at the lateral deltoid region, her biceps tendons are intact. She has normal strength in abduction and external rotation.”
The claimant says that when matched with the overall opinion of Dr Wallace, there is a guarded prognosis in relation to the function of the left shoulder and lumbar spine, it is clear that the claimant has a permanent impairment of her left shoulder and upper extremity. The claimant submits that Assessor Sharp found similar ranges of motion in the claimant’s uninjured right shoulder however, in relation to her injured left shoulder, he found greater restrictions on those actually found by Dr Wallace, the insurer’s doctor, and so came to a higher percentage of assessment.
With respect to the lumbar spine, the claimant says that there is a consistency of medical opinion of Dr Bodel, Dr Wallace and Assessor Sharp who all found a 5% DRE II WPI.
The claimant notes that all of Drs Bodel, Wallace and Assessor Sharp agree that the claimant has a 5% WPI based on DRE II of the claimant’s lumbar spine.
The claimant says that all of Dr Bodel, Dr Wallace and Assessor Sharp found there was a consistency of tingling and numbness regarding the pinprick sensation of the lateral aspect of the left thigh. The claimant says that this is sufficient to ground a finding of non-verifiable radiculopathy.
The claimant says that noting the consistency between the findings of Dr Bodel, Dr Wallace and Assessor Sharp, it is clear that the assessor has appropriately carried out an examination using the full range of his skills, shown a path of reasoning which is easily understandable and came to the correct conclusion.
The claimant submits that the insurer seeks to rely on an “impression” created by some physiotherapy records and ignores the remaining evidence of specialist opinion of Dr Bodel and Dr Wallace. The claimant says that this is insufficient to establish that the assessor did not properly undertake his examination.
The claimant says that while the insurer obtained a report and opinion from Dr Wallace, his overall opinion is that there is a guarded prognosis in relation to the function of the left shoulder and lumbar spine.
The claimant says that even if the assessor did make an error in relation to his assessment of the claimant’s lumbar spine, which the claimant does not concede, then in any event this would not have made a material difference to the outcome of the claimant’s WPI for her injured left shoulder which was 12%.
Medical evidence
In support of her application for a WPI assessment, the claimant relied on a report of
Dr Bodel dated 24 October 2019.Dr Bodel said that while the claimant had made steady progress in her recovery since the accident, she has never completely recovered. She has a soreness in the region of the left hip and has struggled to be able to return to work. He said that the claimant had tenderness over the greater tuberosity in the region of the left shoulder but no instability. She had a restricted range of shoulder movement on the left.
With respect to the lumbar spine, he said there was tenderness on palpation at the lumbosacral junction, over-the-top of the left hip and in the region of the sacroiliac joint. He said there was guarding in that area and with forward flexion, she reaches with her hands to the knees. Backache and a left buttock pain at this point and also on extension together with a reduced range of lateral bending to the right. On these findings the doctor said that the claimant had asymmetry of back movement.
The insurer obtained a report from Dr Wallace dated 28 January 2021.
Dr Wallace said that the claimant would benefit from an unsupervised home exercise programme concentrating on mobilisation and strengthening exercises of the left shoulder and lumbar spine. He said that she had a guarded prognosis for further recovery of function of her left shoulder and lumbar spine despite any ongoing treatment.
Dr Wallace concluded that the claimant had an 11% impairment of her left upper limb as a result of a loss of range of movement less a 3% loss of range of movement of the right shoulder giving a figure of 8% upper extremity impairment which equated to a WPI of 5%.
He also found that the claimant suffered a WPI with respect to the lumbar spine of 5% which corresponded to the DRE lumbar spine category II.
Assessor Sharp provided his certificate dated 29 May 2021. He recorded that when the claimant was admitted to Mona Vale Hospital, she was found to have the following injuries:
(a) a fracture of the greater tuberosity of the left humerus;
(b) a rotator cuff tear of the left shoulder contusions to the right hip and thigh;
(c) no long bone injury, and
(d) bruising to the left leg and particularly over the left hip.
The claimant informed the assessor that she had constant pain over the deltoid region of her left shoulder. She said that she finds it difficult to lift her left arm above shoulder level.
The claimant told the assessor that since the accident she has had some lower back pain.
On examination of the lumbar spine, flexion was fingertips to 15 cm below the knees, lumbar extension was normal on either side and lumbar lateral flexion was reduced to ¾ on either side.
Assessor Sharp, with respect to the lumbar spine, said that examination showed non-verifiable radicular pain in the left thigh (DRE category II- the patient’s history and findings are compatible with injury and may include significant, intermittent or continuous non-verifiable radicular complaints. There is no objective sign of neurological impairment).
By way of comparison of various assessments, Dr Bodel for the claimant in his report of
24 October 2019 assessed the following WPI:(a) left upper extremity 6% (F 38p 43, F 41p 44, F 44p 45);
(b) lumbar spine DRE II 5% (applying table 73 on page 3/110 of AMA 4) with no clinical sign of radiculopathy, and
(c) combined total 11%.
Dr Wallace, for the insurer, assessed the following WPI in his report of 28 January 2021:
(a) left shoulder (upper extremity) 5% (figures 38, 41 and 44 on pages 43 to 45);
(b) lumbar spine DRE II 5% (page 102), and
(c) combined total 10%.
Assessor Sharp found:
(a) left shoulder 12% (3/31 F 38, 3/44 F 41 and p 45 F 44);
(b) lumbar spine 5% (3/108 T70), and
(c) left hip 0%.
Panel medical examination
The claimant was examined by Medical Assessors McGrath and Moloney. Their combined report and findings follow:
“1. Name Ms Hayley TURNER
2. Date of Accident 22 September 2018
3. Date of Examination 23 March 2022
4. Social
Ms Turner is a 58-year-old single lady. She lives on the north coast.
She started her employment career with a Bachelor of Science in nutrition and food science. She has worked for multiple retail outlets as a manager or in the food and catering section. She has had her own business for the last couple of years which was mostly cleaning because of the high demand in the area she lives. At the time of her accident, she was working eight- or nine-hour days, six or seven days per week in order to pay her mortgage.
Ms Turner records a previous strong interest in social golf, tennis, swimming, running, aerobics and gymnasium classes. She would often play in a twilight golf competition from 3.00pm. She also has recreational interests of cooking, needlework and reading.5. Past Medical Health
Ms Turner records excellent health prior to the accident. She was advised to have a GP doctor only because of the possibility of aging disorders. There is no history of previous motor vehicle accidents, falls, broken bones or surgery.
6. Accident
Ms Turner was involved in an MVA on 22 September 2018. She was performing her routine Saturday jogging run of around 14km when the accident occurred. As she was crossing a roundabout, a vehicle did not indicate correctly and hit her on the right-hand side knocking her down onto the bitumen on the left-hand side. She crawled to the side of the road and noticed her left upper leg was swelling and she had difficulty moving her left arm. She was taken by ambulance to the local hospital and kept there until the early hours of the evening.
Ms Turner came under the care of her General Practitioner. She was unable to return to work for a four-month period. She took a position which she thought was lighter but this turned out to be an incorrect assumption. As she moved back into catering, the COVID pandemic hit which forced her to go onto social security for one year. She made extra income as a tailoress.7. Treatments
Ms Turner was treated with regular physiotherapy. She has a Voltaren rub on gel and takes a Panadol tablet at night-time to assist with sleeping.
8. Post-accident Events
None recorded
9. Symptoms and Disability
Ms Turner sketched her pains onto a body diagram. She indicated that she had significant pain about the lateral aspect of the upper left arm. She had ongoing discomfort over the left upper and outer thigh. She also records lower back pain. Her pains create an assortment of disabilities for everyday activities. The lumbar pain reduces her ability to bend forward at the waist. She has trouble reaching overhead because of the left shoulder. Carrying and lifting are affected by low back and shoulder pains. Lying on her left shoulder creates discomfort and difficulty with sleeping. She has trouble driving a motor vehicle for a long period because of combined pains. House cleaning has become more difficult. She is not able to return to running or other recreational interests such as golf and tennis. Swimming is restricted to breaststroke.
Overall, she describes the accident as life-changing.10. Examination
The affected areas were carefully examined.
Upper Extremity
The Panel was satisfied that Mrs Turner was consistent on repeat testing of shoulder movement which was similar to measurements recorded by Medical Assessor Sharp one year previously. The Panel considers that after a fracture and rotator cuff tear that it would be reasonable to assume some deterioration in range of movement with time.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTLeft UEI % Flexion 180° 90° 6 Extension 50° 50° 0 Adduction 40° 40° 0 Abduction 170° 80° 5 Internal Rotation 80° 60° 2 External Rotation 60° 50° 1
The Panel was satisfied that Mrs Turner was consistent on repeat testing of shoulder movement which was similar to those recorded by Assessor Sharp 1 year previously. The Panel considers that after a fracture and rotator cuff tear that it would be reasonable to assume some deterioration in ROM with time.
Lumbar Spine
Ms Turner has a normal range of lumbar spinal movements with no sign of spasm or guarding but did record discomfort at end range. There were no non-verifiable radicular complaints. A disturbance to the thigh observed by other examiners, is not non verifiable radicular. Most likely this is a disturbance to a nerve emanating from the pelvis. There is no correlation with any lower lumbar nerve root pathology
Neurological examination of the lower limbs was normal. That is, she had normal deep tendon reflexes, power and sensation.
Upper and lower leg circumference was measured at 36cm, 36.5cm and 31cm, 31cm for the right and left legs respectively.
The Panel could not note any non-verifiable radicular complaints at the time of their assessment. Decreased sensation of the lateral thigh is not dermatomal and was not present at the time of our examination.Lower Extremity
Ms Turner was very tender over the greater trochanter on the left-hand side. There was also a palpable lump in that region, probably from ossifying myositis. The active range of hip movements was carefully measured by goniometer and recorded as normal. Measurements were identical on both left and right sides.
Her gait was normal.
Hip Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 110° 110° Extension 10° 10° Adduction 20° 20° Abduction 30° 30° Internal Rotation 30° 30° External Rotation 40° 40° 11.Investigations
Ms Turner brought with her a CT scan of the left shoulder dated 18 October 2018 with a follow up plain x-ray dated 27 October 2018. The CT scan clearly indicates an undisplaced fracture of the greater tuberosity. The follow up x-ray showed some healing.
12. General Assessment
Ms Turner was involved in an MVA on 22 September 2018. She was knocked over by a car as she was crossing a roundabout. She sustained a fracture of the greater tuberosity of the left arm and soft tissue haematoma about the left hip. She gradually developed low back pain noticed as she returned to work.
13. Impairment Assessment
An impairment assessment has been calculated.
| 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 | Lumbar spine | MAPIG p26-36 T7 p27 AMA4 T72 p102-103 | YES | 0% | 0% | 0% |
| 2 | Left Upper Extremity (Shoulder) | MAPIG p13-16 AMA4 Chap 3.1 | YES | 8% | 0% | 8% |
| 3 | Left Lower Extremity (Hip) | MAPIG p16-22 AMA4 Chap3.2 | YES | 0% | 0% | 0% |
1. The lumbar spine is DRE1 based upon clinical observations.
2. The left shoulder impairment is calculated from ROM methodology.
3. The left hip impairment is calculated from ROM methodology. She does qualify for DBE impairment under T64, as her gait is normal and with no other disability.
Apportionment1. Nil
Pre-existing/Subsequent Impairment
2. Nil
Effects of Treatment
A Current % of permanent impairment 8%
B Pe-existing/subsequent % for permanent impairment %
C Adjustments % for effects of treatment nil%
Final % permanent impairment 8%”
Conclusion
The claimant was involved in a pedestrian versus car accident. She did not have any pre-existing disabilities affecting her recovery. All of Dr Bodel, Dr Wallace and Assessor Sharp found that the claimant did not have an assessable disability with respect to her hip.
All of Dr Bodel, Dr Wallace and Assessor Sharp assessed the claimant with respect to her lumbar spine as having a DRE II 5% WPI. When the claimant was examined on behalf of the Panel, she had no non-verifiable radicular complaints and had a normal range of lumbar spinal movements, with no sign of spasm or guarding. As the Panel has recorded though, she did record some discomfort of movement at the end of range however this does not go to any verifiable assessment.
Whilst there was no immediate complaint by the claimant about an injury to her lumbar spine, the Panel notes that the circumstances of a car v pedestrian incident, the insured car collided with the claimant suddenly, without warning and without the claimant being able to protect herself. The Panel has concluded that it would not be unreasonable for the claimant to suffer a number of injuries, as has occurred and including her lumbar spine as a direct consequence of this accident, notwithstanding late complaint about this.
With respect to the findings of the Panel for the claimant’s left shoulder at 8%, these differ from the findings of Dr Bodel at 10% WPI, Dr Wallace at 5% WPI and Assessor Sharp at 12% WPI. The findings of the Panel however are an accurate recording of the claimant’s left shoulder range of motion on the day of assessment. Assessor Sharp recorded similar range of motion of the left shoulder to the Panel Assessors except that he recorded less abduction. Assessor Sharp recorded 12% WPI from loss of range of motion. The Panel has determined that the loss of range of motion on the day of assessment was an accurate assessment of her range of motion.
Determination
The Panel revokes the certificate of Medical Assessor Sharp dated 29 May 2021
The Panel determines that the following injuries were caused by the motor accident:
· cervical spine - soft tissue injury;
· lumbar spine – soft tissue injury, and
· left shoulder - soft tissue injury.
The injuries caused by the motor accident have a total whole person impairment of 8%.
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