Insurance Australia Limited t/as NRMA Insurance v Yuille
[2022] NSWPICMP 518
•19 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Yuille [2022] NSWPICMP 518 |
| CLAIMANT: | Kevin Ross Yuille |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 19 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and treatment; review of Assessor Bodel’s assessment of WPI; claimant injured in rear-end collision in Sydney central business district; claimant alleged injury to neck, back, left and later, right shoulder; dispute about causation of left and right shoulder and relationship to the accident; Held – neck injury assessed at diagnosis related estimate (DRE) II = 5%, thoracic spine DRE I = 0%, lumbar spine DRE 1 = 0%; Panel not satisfied right shoulder impairment caused by accident due to absence of complaint of right shoulder symptoms for over four years from the date of the accident; Panel satisfied impairment to left shoulder caused by accident but resolved within six months when treating rheumatologist recorded full range of shoulder motion; Panel satisfied that current impairment not caused by accident and most likely caused by degenerative condition unrelated to accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Bodel dated 22 June 2022. 2. Certifies that Kevin Yuille’s degree of permanent impairment resulting from the injuries caused by the motor accident on 30 January 2017 is not greater than 10%. |
STATEMENT OF REASONS
Introduction
On 30 January 2017, Kevin Yuille was involved in a motor accident at the corner of Park and Castlereagh Streets in Sydney. He was the driver of a car stationary at traffic lights when his vehicle was hit from behind and pushed into the vehicle in front.
He made a claim for damages against NRMA, the third-party insurer of the vehicle that ran into him.
A medical dispute has arisen in the claim concerning the degree of whole person impairment (WPI) resulting from Mr Yuille’s accident-related injuries. The medical dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 22 June 2022 Assessor Bodel determined the claimant had a WPI of greater than 10%. NRMA has lodged an application for review in respect of that decision. On 8 September 2022 the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and on 7 October 2022 the President convened this Panel.
Legislative framework
Background
Mr Yuille’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] 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[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Bodel’s and the review of medical assessments by this Review Panel[3].
[3] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Assessment under review
Medical Assessor Bodel examined the claimant on 31 May 2022 and issued his decision on 22 June 2022. He was asked to assess:
(a) neck – whiplash injury, radiculopathy, C6/7 disc lesion;
(b) back – back strain injury;
(c) left shoulder – soft tissue injury, and
(d) right shoulder – soft tissue injury.
Medical Assessor Bodel has the following history from the claimant:
(a) the claimant is 43 years of age and was previously well;
(b) he worked for the local council doing “parks and gardens work” before the accident but did not return to work after the accident starting his own lawn mowing business instead;
(c) he has also been a part time opal cutter and a truck driver (concrete agitator);
(d) before the accident he ran on the beach and swam but has not returned to this;
(e) there is a consistent history of the accident, and the claimant says he was aware of immediate, severe neck pain at the base and on the left and pain over the top of the left shoulder. Over time this pain spread to the interscapular region of the thoracic spine and the lower part of the back and to both shoulders;
(f) he got home then went to Ryde Hospital (near where he lived) with his pain worsening;
(g) he saw his general practitioner (GP), had an MRI, had physiotherapy and was off work for a few weeks;
(h) he saw Professor Youssef, rheumatologist and a pain specialist who diagnosed whiplash and advised conservative treatment, and
(i) the claimant says he has deteriorated with his pain now worse than it was five years ago.
The claimant complained of pain in the neck at the base and on the left-hand side, in the interscapular region of the thoracic spine between the shoulders and on the right-hand side of the base of the neck. He had pain and stiffness in both shoulders and intermittent lower back pain. The claimant says he takes occasional Panadol but is having no active treatment.
In respect of the examination he conducted, Medical Assessor Bodel recorded:
(a) neck – the claimant was tender at the base of the neck at the left in the trapezius muscle and there was guarding. There was restricted range of motion in all direction most on rotation to the right which, with lateral tilting caused severe pain at the base of the neck. There was no abnormal reflex, sensory impairments, wasting or weakness in the upper limbs and no signs of radiculopathy;
(b) thoracic – there was no pain, guarding or spasm;
(c) lumbar spine – there was “some mild discomfort” in the lower back but no guarding or spasm. The claimant could reach forward with some back ache but there was no asymmetry of movement. There were no neurological signs of radiculopathy;
(d) shoulders – both shoulders were restricted with tenderness over the rotator cuff and there was some impingement but no instability, and
(e) lower limbs – there was no abnormality recorded in the legs.
Medical Assessor Bodel thought the claimant was consistent, had an ongoing impairment and was anxious which suggested a psychological disturbance.
After reviewing the documentation and the radiology and noting there have been no investigations of the shoulders he says, “clinically he does have rotator cuff pathology there which appears to be causally related to the motor vehicle accident”.
Medical Assessor Bodel diagnosed a musculoligamentous injury to the neck, rotator cuff pathology in both shoulders and a soft tissue injury to the back which has likely recovered. He assessed WPI at 18%.
Issues for determination
Insurer’s submissions
The insurer takes issue with Medical Assessor Bodel’s assessment of the claimant’s left and right shoulder impairment and the limited reasons he provided to explain his view as to causation. There are two main reasons for this:
(a) the minor nature of the collision, and
(b) the time lag between the date of accident and the onset of shoulder pain.
The insurer notes that Dr Powell did engage with the causation of shoulder problems and considered any shoulder limitation of movement arose from the neck rather than from a specific or frank shoulder injury. Dr Powell had identified pre-accident radiology and the presence of early rotator cuff pathology which Medical Assessor Bodel did not consider.
The insurer suggests that the notes from Ryde Hospital, Pyrmont Medical Centre, Professor Youssef, Waterloo Medical Centre and the physiotherapist do not record any complaint of shoulder injury. The claim form also does not have shoulder injuries listed.
The insurer says the first mention of left shoulder pain is from the treating rheumatologist five months after the accident and he documents neck pain radiating into the left shoulder. Professor Youssef noted a full range of movement in the shoulders in any event.
Dr Drew Dixon in April 2020 was the first person to record a reduced shoulder range of motion three years after the accident and that reduction was only on the left with full right shoulder movement. Dr Porteous in November 2020 recorded reduced motion in both shoulders
Claimant’s submissions
The claimant notes the insurer’s submissions deal only with the claimant’s shoulder injuries.
The claimant notes that the application for review included information not before Medical Assessor Bodel and says the claimant will not address it, the documentation should not be allowed, and the insurer should lodge an application for further assessment[5].
[5] The Panel notes the President’s delegate allowed the review and did not determine that a further assessment was more appropriate. The documents the claimant objected to have been before the Panel and the Panel has provided the claimant with an opportunity to provide additional material.
The insurer says Medical Assessor Bodel did not err because:
(a) he has formed his own expert opinion based on his own medical experience and expertise;
(b) he does not have to choose between experts;
(c) he is not required to state why he did not accept certain matters;
(d) he reviewed the material, undertook a clinical examination and made the relevant factual determination;
(e) the medical assessor was aware that the right and left shoulder complaints arose or developed later. He also had a history of deterioration over time, and
(f) the medical assessor had a history of pre-accident left shoulder complaints noting no ongoing issue.
The claimant points out complaints of left sided neck pain radiating to the left shoulder were made in June 2017 and the physiotherapist records pain over both shoulder blades from February 2017.
The claimant also points to his statement of 28 January 2020 where he says he was injured in 2005 in the left shoulder and the injury resolved itself.
Procedural matters
On 14 October 2022, the Panel issued directions to the parties seeking a bundle of documents. The insurer’s bundle was received on 21 October 2022, the claimant’s bundle was received on 27 October 2022.
The Panel discussed the matter at a teleconference on 8 November 2022. The Panel identified that apart from a de novo assessment of the claimant’s cervicothoracic spine and thoracolumbar spine the real issue was whether the claimant’s left and right shoulder symptoms and resulting impairment were caused by a frank or specific injury to the shoulders, an accident-related neck injury or some other cause.
The Panel issued directions requesting a full set of Dr Li’s notes from both before and after the accident noting that Dr Li had said she was the claimant’s GP for the five years before the accident. In an email dated 16 November 2022 Dr Li advised the insurer’s solicitor that she had not seen the claimant between 18 October 2011 and 31 January 2017.
Review of the evidence
Claimant’s statement 28 January 2020
The claimant provided a statement setting out the following:
(a) in 2005 he had a shoulder complaint following a work injury. He had an MRI which revealed an acromioclavicular (AC) joint sprain and he saw Dr Harper;
(b) in 2007 he had some tightness in the lower back had physiotherapy and deep tissue massage;
(c) immediately after the accident he felt and heard a crack in his neck and experienced pain [6];
(d) he sustained an injury to his neck, back and shock [7];
(e) he drove home but his wife then took him to hospital where he had a CT scan and was discharged [9]-[10];
(f) he lists his disabilities and claims pain, tenderness and restriction of movement to neck and shoulders amongst other things [13];
(g) his worst problem is his neck which gives him pain and stiffness and disturbs his sleep [16], and
(h) he also complains of pain and tightness to my left shoulder and his right shoulder is uncomfortable “as I favour my left shoulder” [17].
There is also an email from the claimant’s wife dated 28 January 2020 attesting to claimant’s problems with his back, neck and shoulder (the Panel notes this is in the singular) and their financial difficulties. This email was subsequently signed by the claimant’s wife.
The claimant has also provided a copy of the s 85A particular provided by his solicitor to the insurers which is signed but not dated. This document lists injuries to the claimant’s neck, back and shock causing disabilities including pain, tenderness and restriction of movement to shoulders and claims permanent physical impairments to his neck and back.
Claim form and claim documents
The claimant completed an accident notification form dated 14 February 2017. He identifies a 2007 lower back muscle soreness issue which he said resolved after deep tissue massage.
The medical certificate attached to that form was completed by Dr Maria Li of Pyrmont on 31 January 2017, the day she examined the claimant. She diagnosed whiplash and documented clinical findings of “pain and tightness upper back, neck, restricted range of movement”. Dr Li says the claimant had been a patient of the practice for five years which the Panel notes from her subsequent correspondence is incorrect. The claimant had not been a patient of the practice for over five years before the accident.
The claim form signed and dated 21 March 2017 refers to a 2007 workers compensation claim and says the motor accident caused injuries to the neck, back and shock. The claimant did not complete the pain diagram.
The application for medical assessment was completed by the claimant’s solicitor on 3 September 2020. The claimant’s solicitor identified the following injuries to be assessed and the Panel notes the right shoulder was not listed:
(a) neck – whiplash injury, radiculopathy, C6/7 disc injury;
(b) left shoulder – soft tissue injury, and
(c) back – strain injury.
Photographs have been provided of the damage done to the vehicles involved in the accident. The members of the Panel are not biomechanical experts but do note that the damage does not appear to be significant and supports the history that all vehicles were driveable after the accident.
Treating medical records and reports
The discharge summary from Ryde Hospital mentions “muscular neck pain” and that the claimant drove home and picked his son up from school. He had neck stiffness, but his limbs were normal. A scan of the neck was done noting “low neck pain” and the result was normal with no evidence of spinal fracture or disc protrusion. The Panel notes no complaints of shoulder injury or shoulder pain.
There is a single entry from Dr Li’s clinical notes dated of 31 January 2017[6] which says the claimant sustained a whiplash injury with neck pain radiating to his chest. He still had restricted neck movement at that time and required time off work. The claimant also complained of an unrelated left heel ache which occurred at work and was the subject of an incident which caused a limp. On examination she notes “Spine – NAD – tight neck left side especially medial trapezius over thoracic region”. The Panel notes there is no complaint of shoulder pain in this note.
[6] Document A7 page 51 in the claimant’s bundle.
In a referral to Professor Youssef dated 17 May 2017[7], Dr Small (Waterloo) refers to “refractory whiplash with thoracic back pain since mva”.
[7] Document A9 page 56 in the claimant’s bundle.
Professor Youssef’s report to Dr Small dated 22 June 2017 says:
(a) the claimant’s head was “snapped back” and he had discomfort between the shoulder blades as well as pain over the left shoulder;
(b) there was no pain radiating below the shoulders;
(c) he has headaches “like a migraine”;
(d) he has had 20 sessions of physio, and
(e) his current main problem is left sided neck pain radiating into the left shoulder “without numbness or paraesthesia”.
Professor Youssef notes rotation of the neck was 50% of normal and to the right “almost normal” and that lateral flexion to the left was also 50% of normal.
The Professor also records that there was “no tenderness in the shoulder girdles and there was a full range of movement in both shoulders. There was no weakness in the upper limbs and there were no neurological findings in the upper or lower limbs”. He recommended an MRI.
In a second report to Dr Small dated 13 July 2017 after the MRI was done, he noted it “did not show any significant abnormality”. Professor Youssef said he “found it difficult to explain [Mr Yuille’s] symptoms” suggesting “they were out of proportion to any underlying objective physical disorder” and recommended referral to a psychologist, return to work and a trial of Endep.
Dr Small’s records from the Waterloo medical practice include the following:
(a) 23 October 2015 and 20 January 2016 – mental health care plans;
(b) 21 February 2017 – whiplash and ?? movement, had Ultimo doctor fill in the claim form;
(c) 4 May 2017 – whiplash – neck movement now full;
(d) 17 May 2017 thoracic pain and 18 May 2017 – thoracic strain;
(e) there is a report from Dr Small to NRMA dated 23 May 2017 which mentions whiplash cervical spine, thoracic spine sprain, post traumatic stress disorder, stiff and painful CT spine with reluctance to get through full range of movement due to apprehension of pain “ongoing, unremitting pain not improving”.
(f) 24 May 2017 – cervical radiculopathy;
(g) 29 May 2017 – whiplash;
(h) 5 July 2017 – whiplash;
(i) 10 July 2017 CT Scan cervical spine[8] – small focal disc protrusion to the left at C6/7 without evidence of neural impingement;
(j) 12 July 2017 MRI scan small focal disc protrusion to the left of midline at C6/7 without evidence of neural impingement;
(k) 13 July 2017 – very limited neck movement with some rest pain, no additional trauma – thoracic back muscle strain;
(l) 22 August 2017 – whiplash;
(m) 29 August 2017 – thoracic back muscle strain, joint pain, neck pain, back pain no sciatica, back not tender restriction present, restricted range of motion;
(n) 9 October 2017 – thoracic back muscle strain – lost job;
(o) 21 February 2018 – driver’s license medical examination form completed by Dr Small[9]. At question 3.16 in answer to “have you had, or been told by a medical practitioner that you had any of the following … neck, back or limb disorders”, the claimant has written “Minor back pain”. The Panel notes there was no disclosure of neck or shoulder pain in this document, and
(p) 7 August 2018 – back, neck and migraine – no back pain, neck pain no sciatica, neck not tender, not swollen, no restriction, full range of motion.
[8] Page 104 of the claimant’s bundle.
[9] Page 82 of the claimant’s bundle.
The Panel has not been taken to any record in Dr Small’s notes that suggest left or right shoulder pain.
The claimant has provided his physiotherapist’s notes[10]. In a pain diagram there is shading and a notation suggesting the areas of concern were cervical spine, thoracic spine and the left shoulder.
[10] ML Physiotherapy as at 16 June 2017.
The allied health recovery form from the physiotherapist dated 1 April 2017 refers in section two of the form to a clinical assessment of pain and stiffness upper thoracic and lower cervical spine. In current signs and symptoms there is reference to “tenderness in upper shoulder muscles”, thoracic issues and occasional headaches. The physiotherapist noted continuing symptoms and recommended gym or exercise physiology.
In the claimant’s pre-accident history is a report from Dr Wade Harper dated March 2005. This refers to a six week history of shoulder pain after the claimant was hit in the shoulder cutting down a tree branch. He was tender over the AC joint and the range of motion was restricted. With cervical spine motion there was some left sided neck pain. Physiotherapy was recommended.
Documents from Justice Health were produced and the Panel notes complaints of back pain due to poor sleeping position and an assault resulting in the claimant hitting his head and elbow, but otherwise there were no other significant issues.
Medico-legal reports
The insurer had the claimant examined by Dr Powell on 2 May 2019 and his report is dated 8 May 2019. He has a history of “sudden severe pain in the neck region” and a “pop sensation and pain about the left shoulder region” which is “inside the shoulder area”.
Dr Powell records pain in the base of the neck on the left, pain about the left shoulder “difficult to localise”.
On examination Dr Powell found tenderness and a reduced range of motion with symmetry and there was no muscle guarding.
The left shoulder was tender but not wasted compared to the right and there was significant restriction of motion in both right and left shoulders.
Dr Powell suggested there had been no specific injury to the left shoulder and no mechanism which might produce such an injury and he thought it was important that the claimant had not been referred for any shoulder investigations. Dr Powell records that the claimant did not complain about his right shoulder. He says, “his current presentation with essentially symmetric limitation of shoulder motion with no signs of local focal pathology suggests that his limitation in motion is associated with non-specific pain symptoms arising from the neck rather than primary shoulder pathology”.
A later report form Dr Powell dated 23 November 2020 follows an examination on 15 October 2020.
The claimant gave the same history of immediate neck and left shoulder pain and current symptoms of constant pain in the neck extending to the left trapezius and shoulder girdle. There was pain in the lower back. The left shoulder measurements were similar to the previous assessment, but the right shoulder had improved. He awarded 5% for a DRE II in the neck but said there was:
“… no rateable impairment arising from the motor vehicle accident in the left or right shoulder. Some limitation in motion reflects underlying pre-existing disease process, shows the natural history which has not been impacted by the motor vehicle accident.”
Dr Dixon examined the claimant on 23 April 2020. He has a consistent history of the accident and the immediate onset of neck, back and left shoulder pain. Dr Dixon notes the claimant did not return to work because of the heavy lifting and carrying involved. Dr Dixon notes the claimant worked as a stone mason in 2006.
Dr Dixon records the claimant’s complaints of pain and stiffness in his neck with left shoulder pain and headaches. The assessment was undertaken by zoom and Dr Dixon observed restricted range of motion in the neck, stiffness and restriction of movement in the left shoulder but a full range of motion in the right shoulder. There was some thoracic spinal pain but no sciatic pain.
Dr Dixon diagnoses a whiplash injury with left shoulder pain and a back strain and assessed impairment at 16% (5% for the neck, 7% for the left shoulder and 5% for the thoracic spine due to the presence of dysmetria).
Dr Porteous saw the claimant on 9 October 2020 and prepared a report for his solicitors dated 3 November 2020. He appears to have had all relevant records including those dating back to 2005.
Dr Porteous has a history of the immediate onset of neck pain, upper thoracic pain and left shoulder pain. The claimant complained of chronic cervical pain and headaches with chronic thoracic area spinal pain. There is a description of referred pain into the left scapula.
Dr Porteous has a history of the 2005 left shoulder injury and the claimant said he fully recovered from this injury and was asymptomatic at the time of the accident.
On examination of the neck there was no spasm but asymmetrical loss of movement and quite significant bilateral shoulder restriction of motion.
His diagnosis was “chronic cervical spine, thoracic spine and left shoulder pan” and he assessed 15% WPI on the basis of 2% in the right shoulder and 8% in the left and DRE category II for the cervical spine.
Re-examination findings
Mr Kelvin Yuille was re-examined by Medical Assessors Rosenthal and Moloney on 7 December 2022 at the Commission’s rooms.
History from the claimant
Mr Yuille is now 44 years of age.
Pre-accident medical history and relevant personal details
Mr Yuille reported that he had had a previous left shoulder condition which had been treated in 2005. He said a tree branch fell onto his left shoulder at that time. He said no surgery was required although he required a significant amount of treatment. He said there may have been some ongoing pain and discomfort that persisted in the left shoulder following that injury.
He also reported a laceration injury to his left hand which required suturing.
He was otherwise well before the motor vehicle accident.
He confirmed that he was working for Waverley Council at the time of the accident doing parks and gardens work mainly at Bondi Beach. He did not return to this work following the motor vehicle accident. He tried to start a lawn mowing business, but COVID impacted that business and this work ceased after a few months. He also has worked as an opal cutter and continues to do this work on a casual basis. His main job now is driving a concrete agitator truck which he has been doing for the last seven months full-time. He said there is no lifting involved in this position. All the operations are button and electric.
He reports himself as right-handed.
He is married and has one son, but his wife and son currently live in Brisbane.
History of the motor accident
Mr Yuille confirmed the accident on 30 January 2017. Whilst stationary in the driver’s seat of his Honda Accord, a light truck struck him from behind. He said the force caused his vehicle to strike the car in front but that his car was driveable after the accident. He said he immediately noticed neck pain and pain between his shoulder blades. He did not volunteer a history of immediate pain in either shoulder.
History of symptoms and treatment following the motor accident
He drove home first and then took himself to hospital as the pain was increasing. He was put in a neck brace at Ryde Hospital and given various scans but he was not kept overnight.
He subsequently attended his GP and an MRI of his cervical spine was done. He was sent for physiotherapy and painkillers. He indicated by pointing to parts of his body that he had pain radiating from his neck to the shoulders. He confirmed that there were no investigations done on either shoulder at that time. He has not had any cortisone injections or other invasive treatment for his shoulders.
He said his GP referred him to Professor Youssef, a rheumatologist, but no further investigations or invasive treatment occurred. He reported having about 10 sessions of physiotherapy but then no further treatment occurred. He has not sought any further treatment since then and has continued to put up with the symptoms.
Current symptoms
He denied any injuries or the development of any relevant conditions since the motor accident.
He reports neck pain which is constant. He rates it as six on a scale of 0 to 10. He has trouble turning his neck and when he drives, he says he gets left shoulder pain. Driving also aggravates his neck symptoms.
He said his low back is still painful and he occasionally gets left leg pain.
He says he continues to have pain in the shoulders, left worse than the right, and between the shoulder blades. It affects his sleep such that he could not sleep on his left side and then began sleeping on his right side which impacted on his right side as well. He particularly protects his left arm now from overhead activities.
On further questioning, he said the left shoulder pain comes and goes but he denied any arm pain, or radicular pain in either arm or in his hands. Overall, he feels his symptoms are deteriorating.
Current and proposed treatment
No treatment has occurred recently, and no treatment is planned.
Investigations
No X-rays or scans were brought to the examination. The Panel has considered the various radiological reports.
Physical examination
Mr Yuille walked with a normal gait and posture and appeared to be in no significant distress. He weighed 102.5kg and was 181cm tall.
Neck
Mr Yuille reported constant pain in the neck. He denied radiating pain. There was no muscle spasm or guarding observed. Mr Yuille has dysmetria as his neck movements were:
(a) rotation to the right reduced by one-third whereas left rotation was normal;
(b) right lateral flexion reduced by one-third whereas left lateral flexion was of normal range, and
(c) neck extension was also reduced by approximately one-third. Flexion was normal.
His brachial stretch tests were negative. There were no neurological deficits in his upper limbs. Reflexes were found to be generally dull in both upper extremities.
Upper arm measurements were 37cm on both sides, 10cm above the olecranon. Forearm measurements were 31cm on both sides, 10cm below the olecranon.
Thoracic spine
In the thoracic spine, there was no spasm or guarding. Thoracic movements were also reduced by one-quarter in all directions. There were no symptoms in the thoracic spine following an identifiable nerve root distribution.
Lumbar spine
At the lumbar spine, the Panel notes complaints of lower back pain with occasional pain in the left leg.
There was no spasm or guarding and a normal lumbar lordosis. Lumbar movements were restricted in all planes by one-quarter. There was no asymmetry of lumbar movement. There were no symptoms in the lower limbs that could be classified as non-verifiable radicular symptoms.
In the lower extremities, his straight leg raise was 50° on both sides. Lasegue’s signs were negative. Muscle power, tone and reflexes in his lower limbs were normal and there were no sensory changes.
Thigh measurements were 45cm on both sides, 10cm above the superior patellar pole. Calf measurements were 37cm on both sides, 10cm below the inferior patellar pole.
Shoulders
In the light of the dispute about the source of the claimant’s shoulder symptoms, the medical members of the Panel carefully examined both shoulders.
There was some tenderness around Mr Yuille’s thoracic paravertebral muscles and he was tender in the left rhomboid region and also the upper trapezial region which is suggestive of lower neck and thoracic injury. He did however have acromioclavicular (AC) joint tenderness on the left side. This finding is, in the clinical judgment of the medical members of the Panel a strong indication of shoulder joint problems that is symptoms caused by a specific injury to or condition of the shoulder (as opposed to referred pain from the neck).
At the shoulders, he had negative impingement signs. Range of motion was reduced on both sides. There was variability on repeated testing with 10-20° reduction in movement in most planes. The maximal ranges reflecting best efforts are recorded in the table below:
| Shoulder Movement | Right | Left |
| Flexion | 130° | 110° |
| Extension | 40° | 40° |
| Adduction | 40° | 40° |
| Abduction | 120° | 90° |
| External rotation | 80° | 80° |
| Internal rotation | 80° | 70° |
The total upper extremity impairments (UEI) are 7% on the right which is 4% WPI and 11% UEI which is 7% WPI.
The claimant’s passive movements of the shoulders were only marginally greater than the active movements and the passive movements caused glenohumeral pain in both shoulder joints.
The inconsistencies in shoulder movements in the examination were brought to Mr Yuille’s attention. He said that pain levels affect his shoulder movements and his pain levels varied during the course of the examination. It is most unusual in the clinical experience of the medical members of the Panel for this degree of variation in all planes of movement due to variations of pain during the course of the examination.
The Panel also brought to the claimant’s attention that there has been variability in ranges of motion in his previous medical examinations and that Professor Youssef recorded a normal range of motion and no tenderness in both shoulders. Again, Mr Yuille said that pain levels affect his shoulder movements and his pain levels have varied over time. The Panel does not accept this explanation.
The report of the claimant’s treating rheumatologist, Professor Youssef says in July 2017 when he examined the claimant there was “no tenderness in the shoulder girdles and there was a full range of movement in both shoulders” his subsequent report raised issues as to the veracity of the claimant’s complaints. The Panel also notes the May 2018 driver examination document which the claimant completed denying any significant neck and shoulder problems which also raises doubts as to the veracity of the claimant’s shoulder complaints.
IMPAIRMENT ASSESSMENT
Spinal impairment
Assessment of the spine requires consideration of Chapter 3 of AMA 4. Only the diagnostic related estimate method of assessment is allowed by the Guidelines[11].
[11] Clauses 1.116 and 1.128-1.132.
The spine is divided into three regions:
(a) the cervicothoracic;
(b) the thoracolumbar, and
(c) the lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment. In Mr Yuille’s case, he alleges injuries to all three regions of the spine.
There are eight diagnostic related categories (DRE) and a number of indicia provided[12]. The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
[12] Table 7 of the Guidelines.
The category DRE II requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A finding of DRE III requires radiculopathy which is defined in cl 1.1388 as:
“Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neck
The Panel is satisfied that the claimant’s impairment is related to the injuries sustained in the accident on the basis of consistent complaints in this area since the date of the accident.
The claimant has pain in the neck which would satisfy at least DRE category I. It is the clinical judgment of the Medical Assessors that the examination findings do not demonstrate that, on the day of the examination, the claimant has two or more signs of cervical radiculopathy.
Based on the presence of dysmetria, the claimant satisfies DRE category II which results in a 5% WPI.
Thoracic spine
The Panel is satisfied, again on the basis of consistent complaints since the accident (Dr Li records upper back pain the day after the accident) of pain in the thoracic spine.
The claimant complains of pain in his thoracic spine. In the clinical judgment of the medical members of the Panel, there was no evidence of two or more signs of radiculopathy in the thoracic spine on examination.
Based on the examination findings in the absence of muscle spasm, guarding, dysmetria or any non-verifiable radicular symptoms the claimant satisfied category DRE I which results in 0%.
Lumbar spine
Like the thoracic spine the claimant satisfies DRE I (0% WPI) as Mr Yuille reports pain but there is no muscle spasm, guarding, dysmetria or non-verifiable radicular symptoms.
In the clinical judgment of the medical members of the Panel, there was no evidence of two or more signs of radiculopathy in the lumbar spine.
While the Panel doubts the claimant sustained any significant lower back injury in the accident more than five years ago which is still causing symptoms, bearing in mind the degree of impairment in the lumbar spine, the Panel does not propose to engage with the issue of causation further.
Shoulders
The maximum range of motion measurements (after at least three repetitions using a goniometer) reflecting best efforts are recorded in the table below:
| Shoulder Movement | Right | UEI | Left | UEI |
| Flexion | 130° | 3 | 110° | 5 |
| Extension | 40° | 1 | 40° | 1 |
| Adduction | 40° | 0 | 40° | 0 |
| Abduction | 120° | 3 | 90° | 4 |
| External rotation | 80° | 0 | 80° | 0 |
| Internal rotation | 80° | 0 | 70° | 1 |
The total upper extremity impairments are 7% on the right which is 4% WPI and 11% UEI which is 7% WPI.
The Panel is however not satisfied that the claimant’s left or right shoulder impairments are related to the injuries sustained in the accident for the reasons set out below.
Did the claimant sustain a frank or specific injury to the left shoulder?
The claimant’s statement, the claim form and his s 85A particular do not allege a frank or specific injury to the left or right shoulder.
There was no complaint of symptoms in the treating practitioner’s notes that could be considered evidence for left shoulder joint pain or otherwise indicate a frank or specific shoulder injury for two years after the accident. The history given to Dr Powell in May 2019 of “sudden severe pain in the neck region” and a “pop sensation and pain about the left shoulder region” which is “inside the shoulder area” is not repeated in either of the GP’s notes and was not given by the claimant to the Medical Assessors at the re-examination.
There was complaint of neck pain radiating over the left shoulder (see for example Professor Youssef’s report in July 2017) and pain radiating from the neck. It is common for neck injuries to result in shoulder impairment as has been recognised in the case of Nguyen v Motor Accidents Authority of New South Wales and Anor[13] .
[13] [2011] NSWSC 351.
The Panel is not therefore satisfied that the claimant sustained a frank or specific injury to the left shoulder in the accident.
Are the claimant’s left shoulder symptoms due to his neck injury?
Six months after the accident, the claimant was referred to a rheumatologist and Professor Youssef who found pain over the left shoulder but no tenderness in the actual shoulders. Dr Powell in May 2019 found diffuse pain which was difficult to localise. When the totality of the treating records from 2017 to 2019 are considered, the Medical Assessors are of the view that the claimant’s symptoms of shoulder pain in 2017 were related to the claimant’s well documented neck injury.
However, it is the clinical judgment of the Medical Assessors that the claimant’s current left shoulder impairment, more than four years after the Professor Youssef examination is not due to the claimant’s original neck injury. The examination conducted by the two Medical Assessors found evidence of an actual left shoulder injury because of the findings recorded in paragraph 95 above and in particular the tenderness around the AC joint. What the actual shoulder injury is, is difficult to say in the absence of radiology.
The claimant was a driver with his seatbelt passing over the right shoulder. He was hit from behind and while his car (and the car that hit him) was damaged it was driveable. The mechanism of the accident would not, in the clinical judgment of the Medical Assessors cause a left shoulder injury significant enough to result in symptoms five years later.
The Panel notes that the claimant sustained a significant injury to his left shoulder in 2005 requiring radiology and treatment. The claimant’s work has been, over the years, heavy including labouring, gardening and as a stone mason[14] and it is more likely that the claimant’s heavy work has caused degenerative injury to Mr Yuille’s shoulder joint.
[14] See Dr Dixon’s history page 23 of the claimant’s bundle.
When compared to previous assessments, the claimant’s current moderate restriction of movement in an assessment five years after the accident, as well as the claimant’s history of his symptoms getting worse, is consistent with a degenerative injury to the left shoulder not caused by the accident. The Panel considers it significant that when Dr Youssef examined the claimant six months after the accident the claimant had a full unrestricted range of left shoulder motion, no tenderness and no neurological signs in the upper limb. While the claimant says his range of motion has varied over the years because of the level of pain, it is medically implausible for an injury sustained in the accident to recover completely and then re-emerge months or years later and deteriorate.
On the basis of the report of Professor Youssef, the claimant had a full range of motion in both shoulders and symptoms which he found hard to explain. The Panel is of the view that six months after the accident, the claimant no longer had any impairment of his left shoulder due to any neck injury and radiating pain from that injury.
Does the claimant have an accident related right shoulder impairment?
The Panel is not satisfied that the claimant’s right shoulder impairment is caused by the accident.
In addition to the right shoulder not being included in the claim form or the claimant’s s 85A particulars, the Panel notes the claimant’s right shoulder injury was apparently not referred for assessment until after the original application for assessment was filed.
Of significance to the Panel is that there are no complaints of right shoulder pain in the GPs notes, in the report from Professor Youssef (full range of motion), Dr Dixon (full range of motion) or Dr Powell (the claimant denied any right shoulder symptoms). Medical Assessor Bodel is the first medical examiner to have recorded complaints about the right shoulder four years after the accident.
It is the view of the Medical Assessors that it is medically implausible for any current right shoulder symptoms to have been caused by the accident and similarly implausible for the right shoulder to have sustained an injury and associated impairment as a result of increased use due to left shoulder issues. If that was the case, the Panel would expect muscle wasting in the left shoulder and left arm and there was none observed in the course of the examination. There would also be a greater circumference and muscle mass of the right over the left arm and there was not.
Conclusion
The Panel is of the view that the claimant does not have a WPI of greater than 10% in respect of the following injuries:
(a) cervicothoracic spine DRE II 5%;
(b) thoracolumbar spine DRE I 0%;
(c) lumbosacral spine DRE I 0%;
(d) left shoulder (current impairment not caused) 0%, and
(e) right shoulder (injury not caused) 0%.
As the Panel has come to a different conclusion to Medical Assessor Bodel it follows that the certificate of Medical Assessor Bodel must be revoked.
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