Insurance Australia Limited t/as NRMA Insurance v Vekic
[2023] NSWPICMP 296
•23 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Vekic [2023] NSWPICMP 296 |
| CLAIMANT: | Natasa Vekic |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 23 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment by Medical Assessor (MA) Berry and insurer’s review under section 7.26; claimant alleged injuries to cervical, thoracic and lumbar spine, right and left shoulder, right and left wrist, right and left knee; accident occurred on 20 January 2018, head-on collision with turning vehicle and airbags deployed; Held – Panel satisfied that the claimant sustained an injury to her neck and that impairment was 0%; Panel not satisfied the claimant had any existing impairment to her thoracic spine; Panel satisfied claimant injured her lower back and impairment assessed at 0%; both shoulders examined and claimant’s range of motion was inconsistent, therefore Panel did not accept range of motion method was appropriate; shoulders assessed at 3% upper extremity impairment (UEI) each; wrists examined and showed minor impairment assessed at 2% whole person impairment (WPI) each; total UEI of 5% for each limb converting to 3% WPI each; WPI not greater than 10% and certificate of MA revoked; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Berry dated 22 May 2023. 2. Certifies that the degree of Natasa Vekic’s permanent impairment resulting from the injuries caused by the motor accident on 20 January 2018 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Natasa Vekic was involved in a motor accident on 20 January 2018. The claimant had turned right off the Hume Highway into Chapel Road when she was struck head on by a vehicle travelling on the wrong side of Chapel Road.[1]
[1] The police report which contains more detail of the accident is document A3 in the claimant’s bundle.
Ms Vekic says she injured her cervical, thoracic spine and lumbar spine as well as both her shoulders, both her wrists and both her knees and she made a claim for damages against NRMA, the third-party insurer of the at-fault vehicle.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Ms Vekic referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 16 May 2022, Medical Assessor Berry determined Ms Vekic had a WPI of greater than 10% (17%). NRMA lodged an application for review with the Commission alleging an error in the assessment.
On 29 June 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the review to proceed. On 22 December 2022, the President convened this Panel to conduct the review proceedings.
LEGISLATIVE FRAMEWORK
Ms Vekic’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages may be awarded for economic and non-economic losses caused by the accident.
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[2] 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.
[2] The current maximum as of October 2022 is $605,000.
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.[3]
[3] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission’s Medical Assessors including provisions relevant to an original medical assessment such as Medical Assessor Berry’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.
Due to the nature of the claimant’s injuries, chapter 3 of the AMA4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Berry assessed the claimant at an examination on 10 May 2022 and issued his certificate on 16 May 2022. The following injuries were referred to him for assessment:
(a) cervical spine – aggravation of facet joint degenerative change;
(b) thoracic spine – disc protrusion;
(c) lumbar spine – annular tears at L4/5 and L3/4 and aggravation of degenerative changes at L5/S1 and the facet joints;
(d) right shoulder – aggravation of rotator cuff disease and alternatively assessable “as per Nguyen”;
(e) left shoulder – aggravation of underlying rotator cuff disease and/r assessable “as per Nguyen”;
(f) right wrist – fracture of the right distal radius and right triquetrum;
(g) left wrist – fracture;
(h) right knee – traumatic chondromalacia patellae, and
(i) left knee – traumatic chondromalacia patellae.
Medical Assessor Berry took the following history from the claimant with the aid of a Serbian interpreter:
(a) the claimant was at the time of the assessment 46 years of age and was said to run her own business;
(b) she had no previous accident or serious health issues;
(c) the collision with the other vehicle was a head on collision and the airbags deployed and she could not get out of the car on her own. She was helped out by ambulance personnel;
(d) Ms Vekic immediately felt pain all over her body but in particular the neck, shoulders, back and both wrists;
(e) she was transported to hospital and X-rayed and found to have an undisplaced fracture in the left wrist and fracture of the radius in the right wrist (the Panel notes this history is incorrect. The hospital discharge summary confirms the right wrist fracture but there is no mention of a left wrist fracture);
(f) Ms Vekic saw her general practitioner (GP) and was referred to Dr Matthew Giblin (orthopaedic surgeon) for conservative treatment, and
(g) the claimant still has “discomfort” in both her wrists (the right worse than the left) but her major areas of pain are the neck, shoulders and back.
The Panel notes there were no complaints of either left or right knee symptoms made by the claimant in this history.
On examination, Medical Assessor Berry records:
(a) the claimant moved with a normal posture and gait;
(b) in the cervical spine she was tender to palpation but there was no muscle guarding or spasm, movements were restricted but equally so and there were no neurological signs in the upper limbs;
(c) thoracic spine – there was tenderness but no restriction of movement, muscle guarding and no evidence of neurological signs;
(d) lumbar spine – there was dysmetria present (flexion was to one half, extension to one third). There was no spasm, intact reflexes and no evidence of weakness, altered sensation, muscle wasting or sciatic nerve root tension signs;
(e) upper limbs – both shoulders were equally restricted in motion but there was no abnormality detected in the elbows, wrists or hands in either limb, and
(f) lower limbs – no abnormality in the joints of the lower limbs and knee movements were normal.
Medical Assessor Berry remarks that the claimant was co-operative and consistent. He refers to the documentation and summarises the radiology.
Medical Assessor Berry diagnoses soft tissue injury to the neck and midback and annular tears in the lumbar spine. He diagnosed sub-acromial bursitis in both shoulders and fractures of both wrists. He found no evidence of injury to the right or left knee.
He assessed WPI at 17% as follows:
(a) Cervical spine DRE I 5%
(b) Lumbar spine DRE 1 5%
(c) Right shoulder 4%
(d) Left shoulder 4%
(e) Right wrist 0%
(f) Left wrist 0%.
As he had found no evidence of a knee injury, Medical Assessor Berry did not assess any impairment in the right or left knee.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer, in the submissions filed with the application for review[6] submits as follows:
(a) the assessor had assessed the claimant’s cervical spine as diagnostic related estimate (DRE) category I which equates to 0% not the 5% that the assessor gave;
(b) the assessor had assessed the claimant’s lumbar spine as DRE category I which equates to 0% not the 5% that the assessor awarded;
(c) for the right shoulder the assessor has incorrectly assessed adduction at 120 degrees (a finding which does not exist) and abduction at 40 degrees, and
(d) in respect of the left shoulder, the assessor has also incorrectly assessed adduction at 140 degrees (which does not exist) and abduction at 40 degrees.
[6] Page 1 of the insurer’s bundle (document AD1 in the Commission’s electronic file).
The insurer says that if the cervical and lumbar spines were assessed as DRE category I and 0%, regardless of the shoulder assessment errors, the claimant would have a WPI below 10% WPI.
Claimant’s submissions
While the claimant has provided a document headed “claimant’s submissions”[7] she says, “the claimant does not intend to make submissions and notes that it is a matter for the Delegate of the President … to be satisfied that the PIC Certificate is incorrect in a material respect.”
[7] Document A1 in the claimant’s bundle.
Procedural matters
The Panel met on 2 February 2023 and reported to the parties on 28 February 2023.
The Panel noted that the Medical Assessor Berry found no impairment in the right or left wrist and no evidence of any right or left knee and therefore no impairment of the lower limbs. At [9] of that report, the Panel said:
“The Panel refers the parties to the guiding principle in s 42 of the Personal Injury Commission Act and s 7.25 of the MAI Act. Subject to any submissions from the parties, the Panel intends to consider only those injuries in issue, that is the claimant’s neck and lower back and the right and left shoulder. The Panel does not intend to consider the right or left wrist or the claimant’s knees.”
The parties were advised of the medical examination date and invited to provide final submissions and any updated medico-legal evidence noting the insurer had indicated updates had been sought.
The Panel received no further submissions or documents from the claimant. The insurer lodged further evidence but no further submissions.
REVIEW OF THE EVIDENCE
Both parties have provided bundles of documents.
The claimant’s bundle[8] consists of 645 pages of documents. There are multiple copies of many of the documents (GP notes and Dr Giblin’s reports for example) and the bundle is not paginated with page numbers. This has made navigating the bundle difficult for the Panel.
[8] Document AD2 in the Commission’s file. This will be referred to as the claimant’s bundle.
The insurer has provided a bundle with 119 pages.[9] The insurer lodged the updated medico-legal reports in an additional bundle of 61 pages.
[9] The insurer’s bundle is document AD1 in the Commission’s file and the additional material is document AD3.
The claimant alleges both physical and psychological injuries. The Panel is undertaking an assessment of the claimant’s physical injuries and therefore does not intend to refer in great detail to the evidence provided by the parties about the claimant’s psychological injuries.
Claim form and claim documents
The ambulance report[10] notes that, on attending the scene, the claimant was “sitting on the side of road post low/med speed MVA”. The report notes the airbags had deployed and the claimant was able to ambulate on scene and self-extricate. The Panel notes this history is contrary to the history the claimant gave to Medical Assessor Berry of being helped out of the car by ambulance personnel. The claimant reported right wrist and chest pain and denied cervical spine pain.
[10] Page 25 of the insurer’s bundle.
The hospital records (at about page 137 of the claimant’s bundle) detail the emergency department examination:
(a) head – tender scalp throughout, tender c-spine worse at the level of C5-6, pupils equal and reactive to light and no facial bone tenderness or bruising;
(b) chest – seat belt sign over right clavicle, tender sternum and left chest wall;
(c) abdominal – soft tender, no guarding and no seat belt mark;
(d) pelvis – stable non tender;
(e) arms – tender right wrist, strong radial pulse, mild swelling bruising;
(f) legs – no abnormality, and
(g) back – no obvious bruising, nil midline thoracic or lumbar tenderness.
The claimant’s application for personal injury benefits (claim form) was dated 21 March 2018.[11] The claimant described her injuries as “head, back, neck, shoulders, arm and chest”. The Panel notes while “shoulders” plural is mentioned, “arm” is in the singular.
[11] Document A2 in the claimant’s bundle.
The claimant gave a statement to her solicitors on 30 March 2020, about two years after the accident. She gives a history of her career and life events. She said she was in good health before the accident.
She describes the accident and says she was thrown forwards and jerked back in her seat and the airbags deployed. She said she was unable to open her door, but that a witness came to help (this is consistent with being helped out of the car, but not by ambulance personnel as she is reported to have said to Medical Assessor Berry). She recalls feeling pain all over her body but particularly in her neck, right wrist, chest and back. The Panel notes there is no mention here of her shoulders or knees.
At some stage (no date was specified) the claimant says she developed left and right shoulder pain, right elbow pain, left wrist pain, leg and knee pains and she continued to experience pain in her neck and back and chest and right wrist.
Treating medical records and reports
The claimant had seen Dr Tomasevic of the Health Check Family Medical practice in Liverpool on 21 July 2009 after the claimant had been assaulted. There do not appear to be any further consultations with that doctor until 22 January 2018. There are no records from any other medical practice between 2009 and 2018 before the Panel.
Dr Tomasevic has a record at his first attendance of headaches, dizziness, pain in neck and entire back, left and right shoulders, left and right upper limbs, right radius, left wrist, left and right hips, left and right knees, left and right lower limbs, anterior chest and abdomen. His subsequent attendances do not include much in the way of additional detail. Dr Tomasevic appears to cut and paste the detail of his previous examinations into the next record. Dr Tomasevic’s records are not therefore of great assistance to the Panel.
The medical certificate attached to the claim form[12] dated 25 January 2018 and the first certificate of fitness dated 14 February 2018 have the same list of multiple injuries.
[12] At about page 353 of the claimant’s bundle.
The claimant was seen by Vuko Tomasevic of Aspire Physiotherapy and Sports Injury Clinic on 25 October 2018 for the purposes of a gym program. The claimant complained of neck, back, chest, wrists, shoulders, hips and knee pains. The lower back pain was said to cause “regular pins and needles down both legs”.
Specialists
The claimant was seen by Dr Matthew Giblin, orthopaedic surgeon, after the accident and until about May 2018. His treatment is summarised in his medico-legal report which is referred to below.
The claimant was referred to Dr Medhat Guirgis, orthopaedic surgeon, in October 2018. There appears to be only one report from him addressed to the claimant’s GP dated 9 October 2018.[13] He diagnosed a post-traumatic stress disorder and post traumatic symptoms in the left and right wrist, left and right shoulder joint, chest wall, derangement of the lumbar and cervical spine and post-traumatic symptoms in the right and left knee.
[13] At about page 441 of the claimant’s bundle
Dr Hou, pain management specialist wrote a letter to the claimant’s GP on 9 December 2019. She has a history of the 30kmph collision noting the various injuries. The claimant told her the “deep pain in bones” of the right wrist and forearm was the worst pain and was constant. She also complained of numbness, pins and needles over the base of the left thumb and medial aspect of the hand and fingers.
The claimant also complained or right hip pain and lower back pain which sometimes radiated into the right knee. There were complaints of neck pain which was dull and radiated to both shoulders intermittently.
Dr Huo formed the impression the claimant had “chronic pain” in the injured parts of her body “in a setting of depression, anxiety and stress”. Dr Huo referred the claimant to the pain program at Liverpool Hospital and encouraged physiotherapy and regular exercise.
Radiology
On 9 February 2018 the claimant’s right wrist and elbow were X-rayed[14] showing the distal radial (wrist) fracture healing in satisfactory position with no displacement or angulation and the right elbow in satisfactory alignment with no fracture identified.
[14] Pages 31 and 32 of the insurer’s bundle.
On 6 March 2018 the right wrist fracture continued to heal and “alignment was near anatomical”.
The claimant had a cervical and lumbar spine MRI on 22 March 2018. In the cervical spine there was no evidence of traumatic injury or disc lesions but a suggestion of “mild lower cervical facet joint osteoarthrosis.” In the lumbar spine there were minimal disc bulges and protrusions at L3/4 and L4/5 but there was no neural impingement and degenerative changes noted.
On 27 March 2018 the claimant had a whole-body bone scan with CT of the lumbar spine which showed recent fractures in the right wrist/hand, a fracture of the mid sternum and arthritis or injury in the sacroiliac joints. There was also a “mildly increased uptake” in the triquetrum bone in the left wrist.
On 7 May 2018 the claimant had an ultrasound and X-ray of the right thumb ganglion “probably related to an old capsular injury of the joint with evidence of tiny bony avulsion at the base of the distal phalanx and associated volar capsular scarring”.
The claimant had an ultrasound of both her shoulders on 24 October 2018. The clinical indication was said to be “rotator cuff tear” right and left shoulders but the findings were:
(a) right shoulder – biceps tendon normally located and intact; rotator cuff tendons are intact; there was no tear or tendinosis, and
(b) left shoulder – no cuff tear and no cuff tendinosis and the long head of biceps tendon is normally located and intact.
There was no acromioclavicular joint arthropathy (degenerative disease) but there was evidence of subacromial/subdeltoid bursa with bunching in abduction.
Medico-legal reports
Claimant’s reports
Dr Giblin has provided a report to the claimant’s solicitors dated 21 September 2020. This report document outlines in detail the treatment he has provided, and which was contained in several letters written to the claimant’s GP. He notes he first consulted with the claimant on 19 March 2018 at the request of her GP.
Dr Giblin has a report of neck pain, bilateral shoulder pain, right wrist pain (but not left), right elbow pain, low back pain and pain in both legs and to a lesser degree, the knees.
Dr Giblin says the claimant was “very apprehensive about her injuries and quite pain focused”. At the first examination the claimant had restricted movement in both shoulders, but he could not tell if this was due to an injury to the shoulders or referred pain from the neck. He requested an MRI.
Dr Giblin next saw the claimant on 11 April 2018 with the MRI of the cervical spine which showed degenerative changes in the facet joints and the MRI of her lower spine showed some annular tears and minor degenerative changes. The bone scan showed fractures of the right wrist and hand and sternum. The bone scan also showed a possible problem with the left hand, but the claimant did not complain of pain in the left wrist.
On 30 May 2018, Dr Giblin records the claimant was still in pain and the claimant had a ganglion over a joint in her right thumb which he suggested she leave. He recommended she stay active, modify her activities according to her pain and take pain killers and anti-inflammatory medication as required. He discharged her from his care back to her GP.
The appointment on 21 September 2020 was a medico-legal consultation. He records that the clamant continued to complain of neck pain, bilateral shoulder pain, bilateral wrist pain and bilateral knee pain. In the next section under “present disabilities” he mentions lower back pain.
On examination of the neck there was pain and muscle spasm and dysmetria. In the lumbar spine and in the neck, there were no neurological signs.
Both shoulders demonstrated equal restriction of motion but there was full range of wrist movements. Both knees had a full range of movement, small effusion and retro patellar crepitus and pain.
Dr Giblin diagnosed an aggravation of degenerative changes in her neck and lower back, bilateral rotator cuff disease (diagnosed without the benefit of investigations), fractures of the right wrist, sternum and “bilateral traumatic chondromalacia patellae”.
He assessed WPI at 26% as follows:
(a) Neck DRE II 5%
(b) Lumbar spine DRE II 5%
(c) Right shoulder 12% UEI 7%
(d) Left shoulder 12% UEI 7%
(e) Wrists 0%
(f) Right knees 2%
(g) Left knee 2%.
There is a pain chart completed by the claimant when she first attended Dr Giblin’s room.[15] On that “back pain” chart the claimant has indicated pain in her right and left wrist, right and left shoulder, right and left hip, neck and lower back and her right and left ankle – there are no marking around the knees. There is also a “neck pain” chart which indicates pain in both elbows and both knees and shins as well as the other parts of her body.[16]
[15] At about page 116 of the claimant’s bundle.
[16] On page 118 of the claimant’s bundle.
The referral to Dr Giblin dated 7 March 2018 (at about page 120 of the claimant’s bundle) mentions headaches and dizziness, pain in the neck, entire back, left and right shoulders, left and right upper limbs, right radius, left wrist, left and right hips, left and right knees, left and right lower limbs and the chest and abdomen.
Dr Kuljic reported to the claimant’s solicitors on 20 September 2020. He diagnosed the claimant with a Major Depressive Disorder and assessed her impairment at 16%.
Insurer’s reports
Dr Menogue provided a report to the insurer on 17 July 2018. He has a history of the airbags not deploying and the claimant being taken to hospital by ambulance.
Dr Menogue has a history of an injury to the chest, neck, shoulders, right wrist and lumbar spine (there is no mention of left wrist or knees).
Dr Menogue takes a detailed history of the treatment the claimant had received which at that stage included physiotherapy and hydrotherapy. He notes various records suggested the claimant was pain focussed.
In terms of her current pain the claimant complained of chest pain, neck pain radiating into the right more than the left shoulder but “she denied any specific and isolated pain involving either shoulder”. The claimant also complained about lumbar spine pain and right wrist pain.
At the time of his examination of the cervicothoracic and thoracolumbar spine there was no muscle guarding or spasm and movements, while restricted were equal (therefore no dysmetria). There were no neurological symptoms.
On examining the shoulders, he noted inconsistency and limited restriction of flexion and abduction in particular.
He made a number of recommendations concerning treatment care and return to work but he was not asked to assess WPI.
Dr Keller provided a report to NRMA dated 26 July 2019. In his history of the accident he records, “Ms Vekic states she was unconscious for some minutes and was unable to stand or walk”. The Panel notes this history is not consistent with the ambulance records.
The claimant reported ongoing pain in her neck, both shoulders, lower back and right wrist (there is no mention of left wrist or both knees).
On examination, the cervical spine was normal with no spasm and symmetrical range of full motion. The shoulder range of motion was restricted but “self-limited” and there was a greater range of motion in the left than the right.
There was no restriction of motion in the elbows, wrists and hands. The lumbar spine had equal movements, no spasm or guarding reported but some tenderness. There were no neurological deficits in the lower limbs with inconsistency noted.
Dr Keller found no evidence of any impairment primarily due to inconsistencies on examination.
In a second report dated 20 November 2020, Dr Keller reported a full symmetrical range of motion in the spine, improved (but still restricted) movement in the shoulders, full range of motion in the elbows, wrists and finger joints and a full symmetrical range of motion in the lumbar spine. He again assessed no impairment.
The insurer obtained an up to date report from Dr Keller dated 8 March 2023. The claimant reported constant pain in the whole of her back aggravated by sudden movement. She reported pain in her legs, hips and knees and constant pain in the left and right wrists. The shoulder measurements he obtained are included in the appendix to these reasons. He says:
“On examination today, there was a full symmetrical range of motion in the cervical spine, without signs of spasm or radiculopathy. There was a restricted range of motion in both shoulders that was observed in 2019, but not observed in 2020, and not explained by her injuries to date. There was a restriction of lumbar flexion due to pain associated with inconsistent weakness and unexplained numbness in the feet, that was present in 2019, but not 2020. There was a full symmetrical range of motion of both wrists, consistent with recovery from her fractures.”
Dr Keller remarks that his examination findings were inconsistent between the assessments he has undertaken noting the claimant was similar in presentation in 2019 but reduced compared to 2020 where no abnormality was detected. He did not assess impairment on the basis of these inconsistencies.
Dr Kneebone, psychiatrist provided a report to the insurer dated 11 July 2019. He diagnosed a major depressive disorder, but he declined to assess WPI on the basis Ms Vekic had not reached maximum medical improvement.
The insurer relies on a report of Dr McClure dated 31 January 2023. He diagnosed the claimant with a chronic depressive disorder in partial remission which he found was caused by the accident. He assessed her WPI arising out of that injury at 7% although did note that she had improved recently.
The report of the Vocational Capacity Centre dated 15 February 2023 suggests the claimant is affected by the lengthy claims process. She says she felt things were on hold pending the finalisation of the claim. At page 23 of the report under the heading “consistency of presentation” the examiner noted inconsistency between her reported functionality and her abilities during the examination (she reported being able to sit for only 20-30 minutes at a time yet sat for the one hour and 25 minutes of the initial assessment). Also noted was inconstancy between formal examination and informal observation.
No significant dysfunction was identified, and the author of the report considered the claimant could return to her pre-injury employment.
RE-EXAMINATION FINDINGS
Medical Assessor Stubbs conducted an examination of the claimant on 10 May 2023 in the Commission’s medical suites. Ms Vekic was accompanied to the examination by her brother, but he was not present at the examination. They drove from home to Warwick Farm railway station and continued the trip by rail.
A member of the Commission staff attended as chaperone for the clinical examination when Ms Vekic was examined.
A telephone interpreter was arranged by mobile phone. The connection with the interpreter was unsatisfactory and dropped out several times after very short intervals. Ms Vekic was asked if she would like to proceed in the absence of the interpreter. Ms Vekic said that as she had lived in Australia for 23 years, she was confident to continue without the interpreter. Medical Assessor Stubbs reported that the claimant’s ability to communicate was excellent and he had no trouble understanding her history and she did not appear to have any trouble understanding his questions or his requests and directions for the physical examination.
History
Ms Vekic is now 47 years of age. She lives with her family including her brother and sister in the family home. She came to Australia from Serbia and was working at the time of the subject accident as the administrator and estimator for a home renovation business. She never successfully returned to work following the accident and for a while her sister took over the position on a part-time basis. The business has since closed. Her work included administration and quotations made at the client’s homes.
Ms Vekic said she was well prior to the examination and regularly attended gym doing circuit training and light weights. She no longer exercises at the gym. She did not take any regular medications prior to the motor vehicle accident.
The accident occurred on 28 January 2018. She made a right-hand turn from the Hume Highway into Chapel Road. An oncoming vehicle crossed the median line and there was a head on collision. The airbags deployed.
Police and ambulance attended the accident, she was assisted out of the vehicle and taken to Bankstown Hospital she said with injuries to both wrists. She had retro sternal pain with deep breaths. A fracture of the right distal radius was diagnosed on imaging, and she spent six weeks in a plaster cast. Ms Vekic also said she had broken her left wrist, but this did not require a cast. The Panel notes there was a bone scan which revealed an increased uptake in the left wrist area but there has been no radiology which would suggest a fracture.
Ms Vekic said she attended her GP Dr Tomasevic who referred her to Dr Matthew Giblin for management of the fractures. She was referred for physiotherapy which ceased after 26 weeks.
She did not complain of any pain or stiffness in the wrists and said she was pleased how well her wrists had recovered. She did complain of pain and stiffness in her neck spreading into the trapezial region and down between the shoulder blades. Her low back pain was stiff she had stiffness and soreness in both knees. She said the fractures of both wrists have healed and there is little continuing impact from the accident, but her neck and back pain continue. She takes paracetamol/codeine as required for pain management.
Ms Vekic said she has not returned to the gym and is limited in her physical activities because of neck and back pain. She continues to live in the family home and receives assistance with housework but is fully independent in her own personal care. She has good days and bad days with neck and back stiffness and may require rest in bed at times. She continues with a home exercise program as taught by the physiotherapist. Heat, massage, and a hot shower relieve her symptoms. She is very stiff on getting out of bed.
Clinical examination
General
Ms Vekic was measured at 178cm tall and weighed 89kg. She moved freely and could tip toe and heel toe walk and maintain single leg stands with balance.
Ms Vekic has a normal standing posture and good spine balance throughout.
She declined to hop as she felt that the jarring associated with this would hurt her back.
The claimant could dress and undress without assistance and climbed onto and off the examination table without assistance. She rose from a chair without using the armrests and was able to squat to 90 degrees of knee flexion.
Cervical spine
She indicated her pain is experienced on both sides of the cervical spine into the trapezial region. Spinal movement was limited voluntarily to half the normal range of directions in all three planes of motion equally (flexion/extension, lateral flexion right/left and rotation right/left). Ms Vekic resisted trying to move further because of pain. There was no spasm or guarding.
Spinal tension tests were negative, but Ms Vekic said this increases her pain.
Upper limb girth was 31cm on both sides and the forearm girth was 29cm also on both sides. Biceps, triceps, and supinator reflexes were symmetrical at 1 plus. Grip strength is rated four out of five on both sides. Upper limb strength with the elbows by the side is similarly four out of five on both sides. Medical Assessor Stubbs expressed the view that the mild weakness appeared to be due to sub-maximal effort.
Ms Vekic complained of tingling and pain in both arms however Medical Assessor Stubbs noted that the areas she indicated in both arms did not conform to a dermatomal distribution. Sensory testing was normal. Valsalva manoeuvre was negative.
Lumbar spine
Ms Vekic pointed out that her back pain began at the lumbosacral junction spreading primarily into the right buttock, forwards to the region of the right anterior superior Iliac spine down the back of the thigh and on the outer side of the right calf to the whole of the foot and heel.
Forward flexion, side bending and rotation were half normal range but equal. Further movement was resisted as Ms Vekic was fearful this would increase her pain levels. Girth of the lower limbs was 48cm at 15cm proximal to the upper pole of the patella on both sides and 38 cm calf at maximum diameter on both sides.
Clinical grading of lower limb power was five out of five in all motor groups. Straight leg raising was resisted at 30 degrees on both sides, ankle dorsiflexion did not cause pain in this position. Slump test shows low back/hip flexion to 120 degrees and both knees could be fully extended without discomfort.
Knee-jerk and ankle reflexes were present and equal on both sides at grade 2 plus. Babinski sign was negative on both sides.
Ms Vekic had no pain in her left leg but she complained of tingling and numbness in the whole of the left leg which Medical Assessors Stubbs noted was in a non-dermatomal distribution. Sensory mapping with a pinwheel showed well preserved light touch in all areas of both limbs.
A sit up was performed, and knees flexed with the arms crossed over the chest. Ms Vekic could raise her head from the examination bed without apparent discomfort but could not complete the sit up which she said was due to low back pain.
Upper limbs
There was no local muscle wasting in the shoulder girdles or in the rest of the arms. There was mild global weakness of 4/5 of all motor muscles of both arms. There was no crepitus or impingement in either shoulder. There was a mild reduction of ulnar deviation on both sides. Carpal and ulnar nerve compression tests were negative and two-point discrimination was 5mm or better in all fingers. There was general tenderness on firm pressure to the dorsum of both wrist towards the thumb side. There was no instability in either wrist.
The claimant demonstrated a full range of movement in both elbows with unrestricted pronation and supination.
Range of motion in the shoulders and wrist was measured with a goniometer and repeated three times. The best (highest) range of motion is recorded in the table below.
Plane of motion
Right[17]
Left
Shoulders
Flexion (normal 180)
110
100
Extension (normal 50)
30
30
Abduction (normal 180)
140
100
Adduction (normal 50)
30
40
Internal rotation (normal 90)
Hands behind the back
50
Thumb to T10
50
Thumb to T10
External rotation
50
60
Wrists
Wrist flexion (normal 60)
60
70
Wrist extension (normal 60)
60
60
Radial deviation (normal 20)
20
25
Ulnar deviation (normal 30)
20 (2% UEI)
20 (2% UEI)
[17] All measurements are given in degrees.
Lower limbs
There is a good arch on tiptoeing in both feet. Trendelenburg sign was negative. Hip flexion was actively resisted at 60° with 90° of knee flexion supine on both sides. Rotational movements of the hip when sitting was normal and unresisted. At 120° of combined hip flexion and pelvic tilt (15° component) is achieved when sitting.
Both knees were stable and there was no effusion. There was tenderness on patella compression on both sides but no crepitus either in extension or passive flexion. Ankles and feet had normal range of movement.
Consistency
Ms Vekic’s demonstrated range of motion in the shoulders in particular was inconsistent during the course of the examination as follows:
(a) when Ms Vekic dressed and undressed, she was observed to have a much greater range of motion in her shoulders and arms. For example, her ability to internally rotate and flex was greater than 50 degrees and 100-110 degrees respectively and was without any suggestion of pain, and
(b) when formally examined the claimant’s range of motion was inconsistent in the three repetitions. While the best of the three movements was included in the table the claimant did not appear to be giving her best effort when asked to demonstrate movement.
When these matters were brought to her attention Ms Vekic said she did not want to move any more for fear of hurting her neck, back and shoulders.
WHOLE PERSON IMPAIRMENT ASSESSMENT
Spine injury assessment
Assessment of impairment due to an injury of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
Ms Vekic alleges injuries to all three areas of her spine.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7).
The first of the categories is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria; or
(c) non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant has referred in her submissions to the “Nguyen principle”. This is a reference to the case of Nguyen v Motor Accidents Authority of New South Wales and Anor.[18] That case suggests that if any impairment to the shoulders results from an injury to the neck, then the shoulder impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[18] [2011] NSWSC 351.
Cervical spine
The Panel is satisfied Ms Vekic sustained an injury to her neck. She has complained of symptoms in her neck consistently since the date of the accident.
The medical members of the Panel are of the view that the nature of the injury is a soft tissue injury and aggravation of degenerative changes in her spine. Radiology does not identify any disc injury or bony injury. While there could be an issue as to whether the aggravation is still in play five years after the accident or whether her current symptoms are a result of the underlying degenerative condition, in the light of the degree of impairment that was found, the Panel does not intend to further consider the issue of causation.
The claimant has pain, so she must be assessed as at least DRE I.
Neurological examination was normal, there were none of the five signs of radiculopathy present on examination and therefore she does not qualify as DRE III.
In order to qualify for a DRE category II, it would need to be established that Ms Vekic had:
(a) pain with guarding. There was pain but no guarding found during the course of Medical Assessor Stubbs’ examination;
(b) non-uniform range of motion that is dysmetria. While Medical Assessor Stubbs found a restriction of movement in the neck, the restriction was the same in flexion and extension, left and right rotation and left and right lateral flexion;
(c) non-verifiable radicular complaints. These complaints are defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
Ms Vekic reported pain radiating from her neck into the trapezius on both sides and a separate area of pain and tingling in her arms which, in the clinical judgment of Medical Assessor Stubbs did not conform to an appropriate nerve root distribution.
Thoracic spine
The claimant was asked to point to the source of her pain and where she felt pain. She indicated the base of her neck and the lower back. She did not indicate pain or demonstrate she had any symptoms in any part of her thoracic spine or mid back area.
Lumbar spine
The Panel is satisfied Ms Vekic sustained an injury to her lower back. While there was no notation of back pain in the hospital records, the claimant has complained of symptoms in her lower back consistently since the date of the accident. Again, as with her cervical spine, the nature of the injury is soft tissue and an aggravation of degenerative changes in the lumbar spine and again there could be an issue of causation but in the light of the finding concerning the degree of impairment in the lumbar spine, the Panel is not of the view it is necessary to further consider causation of this injury.
The claimant has pain in her back, so she has to be assessed as at least DRE I.
Neurological examination is normal, there were none of the five signs of radiculopathy present on examination of the lumbar spine and therefore she does not qualify as DRE III.
In order to qualify for a DRE category II it would need to be established that Ms Vekic had:
(a) pain with guarding. There was pain but no guarding found during the course of Medical Assessor Stubbs’ examination;
(b) non-uniform range of motion that is dysmetria. While Medical Assessor Stubbs found a restriction of movement in the lower back, the restriction was the same in flexion and extension and left and right lateral flexion;
(c) non-verifiable radicular complaints. These complaints are defined in Table 8 as:
(iii)symptoms (shooting pain, burning sensation, tingling), and
(iv)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.
Ms Vekic reported pain radiating from her neck into the trapezius on both sides and a separate area of pain and tingling in her arms which, in the clinical judgment of Medica Assessor Stubbs did not conform to an appropriate nerve root distribution.
Conclusion – spine
The Panel notes that almost three years ago, Dr Giblin assessed the claimant as DRE II in both her neck and lower back. The Panel has found the claimant is now to be assessed as DRE I in both the neck and the back. It is the clinical judgment of the medical members of the Panel that this is to be expected and in line with the general improvement over time that is to be expected with soft tissue injuries.
Upper limb impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides.
The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment).
In each of the upper limbs, regional impairments such as the shoulder and the wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The abnormal range of motion method is the most common method of assessment and measurement of motion is undertaken using a goniometer and only active motion (not passive) is measured.
Shoulders
Regardless of whether shoulder impairment is caused by a frank or specific injury to the shoulder or the impairment arises due to a neck injury (and pursuant to the Nguyen principle), its impairment must be considered and included.
Measurements are taken of the six movements of the shoulder:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) Internal, and
(f) external rotation.
Each of the six UEI figures is added to get a total UEI percentage impairment which is then added to the wrist impairment.
In Ms Vekic’s examination, the range of motion varied over the three repetitions for each of the six movements. During the examination of both her shoulders, there were no signs of impingement, no wasting of the rotator cuff musculature and no point local tenderness. There was therefore no clinical indication of a frank or specific injury to either of her shoulders.
Ms Vekic was able to lift her neck comfortably, with no pain, while on the examination bed performing a sit up. This in the clinical judgment of the medical members of the Panel indicates there were no symptoms from the neck causing any shoulder symptoms. The Nguyen principle does not apply.
The Panel notes the claimant’s radiology (October 2018) shows no ruptured tendons or ligaments and no degenerative changes in the shoulder albeit bursitis with bunching on abduction. The Medical Assessors are of the view that the minor radiological findings do not correlate to the extent of the loss of range of motion demonstrated at the examination.
Finally, the Panel notes that the range of motion in the claimant’s shoulders has varied over time (see the tables appendix A to these reasons). Ms Vekic’s range of motion before Medical Assessor Stubbs was inconsistent with the previous examinations and the medical records. Ms Vekic was asked about the differences in the range of motion but explained it was because her movement was affected by her pain.
The Guidelines provide as follows in relation to shoulder impairment assessment:
“1.50.4 If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5 If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Due to the inconsistency and variation in the claimant’s shoulder motion, the Panel finds the range of motion method is not appropriate to assess impairment of the claimant’s shoulders as the Panel does not believe that using the range of motion method would provide a true measure of the claimant’s accident-related impairment.
The Panel has therefore assessed impairment using the method in chapter 3.1m of AMA 4, page 58 that is “impairment due to other disorders of the upper extremity”.
Table 18 on page 58 of AMA 4 provides an impairment value (UEI and WPI) for a joint. In the shoulder there are two joints, the glenohumeral joint which accounts for 60% of the upper extremity and the acromioclavicular joint which accounts for 25% of the shoulder functionality.
The first three paragraphs on page 58 of AMA 4 explain that when assessing the impairment of a joint, the appropriate percents from Tables 19 to 30 (in relation to the condition in the joint) are multiplied by the percent from Table 18 (of the affected joint) to obtain a figure.
Dr Giblin diagnosed bilateral rotator cuff disease (without the benefit of the radiological investigations). The subsequent radiology did not reveal a tear or tendinosis in either shoulder but a subacromial or subdeltoid bursa with bunching. It is the medical members of the Panel’s clinical judgment that the most appropriate diagnosis for Ms Vekic’s shoulder injury is a soft tissue injury exacerbating or aggravating degenerative changes in her acromioclavicular joints and that her restriction of movement is analogous to a condition that would result in inconstant crepitations during active range of motion.
It is therefore the Panel’s view to allow a 10% (mild) impairment to the acromioclavicular joint from table 19 “joint crepitations”. The acromioclavicular joint has a maximum impairment of 25% UEI. Therefore, 10% (from table19) x 25% (from table 18) equals 2.5% upper extremity impairment. This is rounded up to 3 (see cl 6.39) and then using Table 3 (page 20 AMA 4) converted to 3% UEI in each shoulder.
Wrists
The Panel indicated in our report following the first teleconference that we were not going to consider the claimant’s wrists, pending submissions from the parties. In the absence of any submissions from the claimant through her solicitors, the Panel formed the view that the claimant’s wrists should be examined for the purposes of confirming there was or was not any impairment.
There is well documented injury to the right wrist including positive X-ray reports and subsequent treatment to confirm a right wrist injury.
It is less clear whether there was an actual left wrist injury. Dr Tomasevic records left wrist pain two days after the accident. The physiotherapist treated the claimant for right wrist symptoms. Dr Giblin and Dr Keller in 2018 and 2019 respectively have no record of a left wrist injury. The bone scan from 27 March 2018 suggested a mild uptake in the left triquetrum. Dr Giblin reported on the bone scan indicating a problem at the left wrist, but as the claimant did not complain of pain in the left wrist, he did not make any finding in his early reports of injury to the left wrist.
The medical members of the Panel note that in their experience, wrist injuries can and do occur when airbags are deployed. Noting the relatively contemporaneous report of left wrist symptoms in Dr Tomasevic’s notes, the Panel is satisfied that the claimant sustained an injury to the left wrist as well as her right wrist in the accident.
Dr Menogue in July 2018, Dr Giblin in September 2020 and Dr Keller in November 2020 and March 2023 reported full symmetrical range of motion in both wrists as did Medical Assessor Berry in May 2022.
The measurements taken by Medical Assessor Stubbs indicated a restriction of motion in both wrists resulting in an upper extremity impairment of 2% in each wrist.
The claimant said she had no pain in either wrist at the examination and was pleased with the result. The minor restriction of motion in the wrists does not interfere with the claimant’s ability to function.
The claimant has had five separate and detailed medical examinations over five years with normal range of motion in both wrists but now has a restriction albeit in a minimal restriction in both. The Medical Assessors in their clinical judgment consider it difficult to relate the current restriction of motion in the claimant’s left and right wrist to the injury caused by the accident. The restriction of motion could indicate the presence of the development of arthritis although the bone scan does not support this. As it is a bilateral and equal finding, the claimant may have always had this restriction as part of her constitutional makeup but without previous measurements of motion, it cannot be said that this is the cause. The impairment could also be a product of a lack of effort on the part of the claimant during the examination.
Noting that the Panel is satisfied the claimant did injure both wrists, and that the impairment is small, the Panel is prepared to find the current wrist impairment caused by the accident.
Conclusion upper limb impairment
The claimant’s total upper impairment for each limb is calculated as follows:
Right
Left
Shoulder impairment
3% UEI
3% UEI
Wrist impairment
2% UEI
2% UEI
Total upper extremity impairment
5% UEI
5% UEI
A 5% UEI is converted using table 3 at page 20 to a WPI of 3% in each upper limb.
Knees
While the Panel indicated in our report that we were not going to consider the claimant’s knees, the Panel formed the view, in the absence of any meaningful submissions from the claimant’s solicitor in respect of these proceedings, that the claimant’s knees should be examined for the purposes of confirming there was or was not any impairment.
Ms Vekic had said during the history taking part of the examination that she had developed stiffness in her knees after the accident. She did not report a knee impact to the staff at the hospital or report any direct trauma to Medical Assessor Stubbs.
As there was a full range of movement in the knees indicating no impairment the Panel will not consider further causation of the knee injuries.
CONCLUSION
The claimant’s WPI arising from this accident is:
(a) cervical spine DRE I 0%
(b) thoracolumbar spine DRE I 0%
(c) right upper limb 3%
(d) left upper limb 3%
(e) left knee no impairment
(f) right knee no impairment.
As the Panel has come to a different view to Medical Assessor Berry, it follows that his certificate must be revoked.
APPENDIX 1 – SHOULDER MOVEMENT
| Right Shoulder | Dr Giblin Sep 2020 | MA Berry May 2022 | Dr Keller Mar 2023 | MA Stubbs Apr 2023 |
| Flexion (normal 180) | 90 | 135 | 120 | 110 |
| Extension (normal 50) | 30 | 40 | 40 | 30 |
| Abduction (normal 180) | 90 | 120 | 90 | 140 |
| Adduction (normal 50) | 30 | 40 | 40 | 30 |
| Internal rotation (normal 90) | 80 | 80 | 90 | 50 |
| External rotation (normal 90) | 80 | 80 | 45 | 50 |
| Left Shoulder | Dr Giblin Sep 2020 | MA Dixon May 2022 | Dr Keller Mar 2023 | MA Stubbs Apr 2023 |
| Flexion (normal 180) | 90 | 135 | 120 | 100 |
| Extension (normal 50) | 30 | 40 | 40 | 30 |
| Abduction (normal 180) | 90 | 120 | 90 | 100 |
| Adduction (normal 50) | 30 | 40 | 40 | 40 |
| Internal rotation (normal 90) | 80 | 80 | 90 | 50 |
| External rotation (normal 90) | 80 | 90 | 90 | 60 |
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