Johnson v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 104
•23 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Johnson v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 104 |
| CLAIMANT: | Peter Johnson |
INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Leslie Barnsley |
| DATE OF DECISION: | 23 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical review under section 63 of whole person impairment (WPI) assessment; claimant involved in rear end collision injuring neck, left shoulder and right arm; Medical Assessor Gorman assessed WPI at 5%; claimant re-examined; Held – claimant’s neck injury satisfied criteria for diagnosis related estimate (DRE) II due to presence of dysmetria at 5%; claimant did not injure his left axial or ulnar nerve; claimant did not injure right arm as no evidence in contemporaneous records and claimant’s history was right arm symptoms came on a year after the accident; claimant did sustain soft tissue injury to his left shoulder but this is not cause of restriction of left shoulder motion; claimant may have radicular symptoms but at these developed a year after the accident and cannot be related to the accident; Assessor Gorman’s Medical Assessment Certificate confirmed; claimant’s WPI not greater than 10%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Confirms the certificate of Medical Assessor Gorman dated 18 May 2022. 2. Certifies that the degree of Peter Johnson’s permanent impairment resulting from the injuries caused by the motor accident on 20 October 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Peter Johnson was involved in a motor accident on 20 October 2017 at Shellharbour. Mr Johnson says he was driving his car and had stopped at a multilane roundabout waiting for traffic to pass, when the driver of the vehicle behind him failed to stop and a rear end collision occurred.
Mr Johnson says he injured his neck, left shoulder and right arm in the accident. On or about 6 November 2018 Mr Johnson made a claim for damages against NRMA, the third-party insurer of the vehicle that hit his vehicle.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim, and Mr Johnson referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Gorman determined that Mr Johnson did not have a WPI of greater than 10%. The claimant then lodged an application with the Commission seeking a review of Medical Assessor Gorman’s determination.
A delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the review and the President has convened this Panel to conduct the review.
LEGISLATIVE FRAMEWORK
General matters
Mr Johnson’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
A claim for damages can include claims for pecuniary losses, such as lost earnings and treatment and care expenses, as well as non-pecuniary losses such as damages for non-economic loss.
Under part 5.3 of the MAC Act the amount of non-economic loss damages that can be awarded is limited 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.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded until the dispute has been determined.[2]
[2] See s 132 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 Gorman’s, further medical assessments and the review of medical assessments by this 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).
[4] Section 133 of the MAC Act. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Cervical spine injury and radiculopathy
Assessment of the spine requires consideration of Chapter 3 of AMA 4. Only the diagnostic related estimate (DRE) method of assessment is allowed.[5]
[5] See cl 1.111 of the Guidelines.
Clause 1.131 provides that the spine is divided into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
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 is DRE category I which is selected if there are symptoms which may include pain. A DRE classification II requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria (see Table 8), or
(c) non-verifiable radicular complaints defined in Table /8 as:
(i)symptoms (shooting pain, burning sensation, tingling);
(ii)which follow the distribution of a specific nerve root, but
(iii)with no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE 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 (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.”
Nguyen Principle
If any impairment to the shoulders (such as restricted range of motion) results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351 that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
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 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).
There are specific rules for combining certain impairments (for example, the four different impairments for the index finger) and adding (for example the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 at page 20 of AMA 4.
ASSESSMENT UNDER REVIEW
Medical Assessor Gorman undertook his assessment on 20 April 2022 and issued a certificate on 18 May 2022. He was asked to assess two injuries:
(a) facet dysfunction in the cervical spine, and
(b) left arm – axillary nerve lesion and ulnar nerve neuritis.
The claimant gave the following history to Medical Assessor Gorman:
(a) he was, at the time, 61 years of age, married with adult children;
(b) he works in aged care four days a week and as a disability support worker the other day;
(c) he no longer works as an Uber driver;
(d) he is in relatively good health with high blood pressure and previous injuries to his scaphoid and right knee;
(e) after the impact, he was pushed into the intersection and there was damage to the tow bar and undercarriage;
(f) he felt pain and in the cervical, thoracic and lumbar spine. He remembered his chin hitting his chest;
(g) he developed pain in the shoulders with numbness and tingling in his arms and hands, on the right side more than the left;
(h) Mr Johnson saw his general practitioner (GP) and was given medication. He attended TAFE for remedial massage with trainees and consulted an osteopath;
(i) he told the Medical Assessor, “with treatment, the right shoulder and arm symptoms settled but the neck, left shoulder, arm and hand symptoms persisted”;
(j) he had an MRI in 2018 which was normal. X-rays of his spine in 2019 showed degenerative changes in his cervical, thoracic and lumbar spine, and
(k) he is to see a surgeon about cervical spine surgery.
The claimant complained of tingling in the fingers of his left hand which never stops, pain over the tip of the left shoulder and across the back of his neck. He is stiff over both scapulae and can have a dead arm when he wakes. His left shoulder keeps him awake at night.
On examination of his cervical spine, the claimant had dysmetria on one plane of motion (flexion and extension), was tender over the upper cervical spine but there was no muscle spasm or guarding.
Mr Johnson reported tingling in the third, fourth and fifth fingers of his left hand and an altered sensation over the whole of both arms. Medical Assessor Gorman noted “there was no localised area of loss of sensation in the region supplied by the axillary nerve”.
Mr Johnson complained of a decreased grip and difficulty holding his golf club however no reduction in power was found.
Reflexes in the upper limbs were present and normal and there was no loss of range of motion in the shoulders. His measurements are included in the tables in the Appendix to these reasons.
Medical Assessor Gorman described the claimant as cooperative and consistent.
Medical Assessor Gorman considered the report of Dr Mastroianni and agreed that the claimant had injured his neck, was of the view that the claimant did not have an axillary nerve lesion or an ulnar nerve injury and that the symptoms the claimant was experiencing were referred from the cervical spine.
Medical Assessor Gorman diagnosed:
(a) cervical spine – aggravation of degenerative disease in particular the facet joints due to the limitation in extension, and
(b) radiating symptoms in both limbs coming from the cervical spine.
The Medical Assessor was of the view that both injuries were caused by the accident and that the impairment arising from them was permanent.
Medical Assessor Gorman considered the claimant had a DRE category II impairment due to the presence of non-verifiable radicular complaints in the C7/8 distribution.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant relies on the report of Dr Mastroianni who assessed the claimant as having an 11% WPI in relation to three injuries and that Medical Assessor Gorman found two of them not caused by the motor accident and that he did not explain causation.
The claimant says while the Medical Assessor found sensory changes in the arms built up after the accident and were caused by an aggravation of the cervical spine degenerative disease, the Medical Assessor did not apply the Nguyen principle.
The claimant asks the Panel to assess both upper limbs plus the cervical spine.
Insurer’s submissions
The insurer says the Medical Assessor did not err in his assessment because he did assess the claimant’s upper arms noting normal shoulder, wrist and elbow motion and that the range of motion method is the most suitable method. As motion was normal there was no impairment.
The insurer says the claimant has not indicated where the error is and why any such error is material.
Procedural matters
The Panel met on 31 January 2023 to discuss the matter and reported to the parties on the same date. The Panel noted:
(a) Medical Assessor Gorman was asked to assess injuries listed as:
(i)facet dysfunction in the cervical spine, and
(ii)left arm, axillary nerve lesion and ulnar nerve neuritis.
(b) the claimant had requested the left and right arm be assessed and the Panel advised it was not aware of any right upper limb injury caused by the accident;
(c) if the claimant had any impairment to either upper limb (such as restricted range of motion) resulting from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[6] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI, and
(d) the Albion Mark Medical Centre (GP) notes were out of order and did not include any radiology reports or letters from specialists.
[6] [2011] NSWSC 351.
The Panel advised the parties of the details of the re-examination and directed the claimant to provide a complete copy of the GP notes and invited both parties to make any final submissions.
The Panel received no further submissions from either party but did receive a further copy of the GP notes[7] and nerve conduction studies from the claimant.[8]
REVIEW OF THE EVIDENCE
[7] AD3 and AD4 in the Commission’s electronic file.
[8] AD8 in the Commission’s electronic file.
Claim form and claim documents
The claimant’s claim form was completed on 6 November 2018 more than 12 months after the accident. In that claim form the claimant said a previous workers compensation claim had been made but at questions 24 and 25 the claimant denies any injuries, illnesses or previous issues that might affect his recovery.
The claim form also indicates no ambulance attended and the claimant was not treated in hospital. The form suggests that Mr Johnson had an MRI and been given medication and treatment from Dr Nagaraj.
The claim form lists the injuries as follows:
(a) neck pain – neck;
(b) shoulder (L) pain and restricted movement – shoulder L, and
(c) right arm nerve pain and numbness – arm (R).
The pain diagram completed by the claimant has crosses marked upon it at the back of the neck, the front of the left shoulder and the front of the left and right forearms. This indicates to the Panel pain in those areas.
Treating medical records and reports
Dr Nagaraj signed the medical certificate attached to the claim form. He indicated on a pain diagram that the claimant was tender in the back of his neck and in the thoracic to low back. There is no mention in the medical certificate of arm or shoulder problems.
Dr Nagaraj’s records have been produced. There are some minor physical symptoms pre accident including:
(a) 7 August 2017 – right wrist previous injury and scaphoid fracture and refracture – has been more painful for a month or so. Tender on scaphoid and dorsal wrist. Hardly any extension, restricted flexion, neurovascularly intact.
Also complained of right knee previous injury when 21 plays up now and again. Has had left knee pain for a month. No swelling, no injury.
Also complains of intermittent episodes of vertigo on getting up.
Panadeine forte was prescribed and X-rays requested.
(b) 16 August 2017 – the X-rays results were discussed in relation to osteoarthritis of knees and wrist. The doctor talked about the importance of exercise, diet and muscle strengthening around the joints.
Also on this date is a chronic disease management plan in relation to the claimant’s osteoarthritis of his knees and right wrist.
(c) 11 September 2017 – left trochanteric bursitis – left hip pain for the last few days after a lot of exercise on right hip and back. Antalgic gait to start and tenderness over the greater trochanter. Hip movements were said to be full but uncomfortable. The claimant wanted something stronger than analgesia and was prescribed Endone.
(d) 20 September 2017 – the claimant was diagnosed with mild obstructive sleep apnoea and was advised to trial a breathing machine and lose weight (his height was recorded as 186cm, weight was 103kg with a body mass index of 29).
After the accident, the records include the following entries:
(a) 25 October 2017 – car accident on Friday, was hit from behind and his body and neck were jerked. Pain started after a few hours. He had no neurological symptoms, but his pains were ongoing made worse with neck and back movements. Mr Johnson was tender in the paraspinal muscles of the neck, lower thoracic and upper lumbar area, lateral flexion of the neck was restricted. Thoracic rotation restricted and painful. Lumbar spine movements were all said to be painful and slightly restricted. Myotomes were said to be “OK” and the claimant was neurovascularly intact.
The claimant was advised to rest, use heat packs and take analgesia.
(b) 22 November 2017 – attended for blood pressure checks and medication.
(c) 9 May 2018 – attended for exercises, claimant was going to ride his push bike to work and further discussion regarding lipids and snoring, “knees are better overall”.
(d) 27 June 2018 – attended for results of blood tests concerning cholesterol.
(e) 12 July 2018 – gastroenteritis.
(f) 28 September 2018 - last year car accident. Over the last few weeks, he has had right sided radicular symptoms, fourth finger numb, neck extension makes it worse, hand grip poor – he was advised to have an MRI and see. The reasons for the visit were said to be hypertension and neck pain.
(g) 5 October 2018 – discussed MRI report “doesn’t really explain his symptoms in full” and the claimant was referred to Professor Jaeger – neurosurgeon. The claimant had been taking his wife’s Lyrica and he was given his own prescription.
(h) 25 October 2018 – pains in the neck radiating down on right – trial tramadol, he had taken Mobic but he was given a script for Tramadol.
(i) 29 October 2018 – review of neck pain, ongoing having frequent physio / remedial massages.
(j) 5 January 2019 – remedial massage was helping also had seen a chiropractor as extension and left rotation was restricted. He was advised to avoid chiropractic manipulation.
(k) 1 February 2019 – ongoing neck pains, wanted further referrals and noted Tramadol and Lyrica were not effective and a trial Norspan patch was given.
Referrals were written for Dr Rob Bolack (osteopath) and Dr Cherukuri (neurosurgeon).
(l) 29 April 2019 – brought in neck X-ray but no report, the claimant’s chiropractor was concerned about possible nerve root compression. It was noted that “the radicular symptoms are not there anymore”.
(m) 18 June 2021 – the claimant had been having therapeutic massages and Dr Nagaraj advised against manipulation. There is mention of left sided cervical radiculopathy with symptoms in the left fourth and fifth fingers.
(n) 4 August 2021 – the claimant came in with his MRI scans which showed mainly C4 – C7 multilevel changes and impingement and he was advised to have neurosurgical review.
(o) 12 August 2021 - referrals to Dr Saeed Khohan and Professor Jaeger were given.
(p) 12 September 2022 – the claimant’s MRI and bone scans were reviewed with the apparent diagnosis of cervical spine facet joint osteo arthritis, disc bulges and severe impingement of C4-7 nerve roots.
(q) 2 December 2022 – the claimant had seen Professor Jaeger “degenerative changes non-surgical” and the claimant had seen a shoulder surgeon “doesn’t really get shoulder pain as such that is limiting but the [abduction] is to just over 10 deg impingement positive and SS loading weak – for ultrasound and see”.
There are no reports from Dr Nagaraj or Associate Professor Jaeger or any of the other medical or allied health professionals who have treated the claimant.
Radiology and investigations
The claimant had an MRI on 2 October 2018[9] at the request of Dr Nagaraj due to right sided cervical radiculopathy. The conclusion was:
“minimal exit forminal narrowing is noted above. Minimal right exit foraminal narrowing at C3-4 and C5-6 level is noted in a patient with right sided symptomatology.”
[9] The report is found within AD3 at page 35.
On 11 April 2019, the claimant had X-rays of his cervical, thoracic and lumbar spine. The report suggests:
(a) there were mild degenerative changes at various levels and in particular at C5/6 with some mild impingement;
(b) there is also a suggestion of “old trauma” at T6 and 7 in the thoracic X-ray and old minor wedging of T9, and
(c) at L3/4, L4/5 and L5/S1 there was mild narrowing of the discs and degenerative changes in the sacroiliac joints.
An MRI scan of the claimant’s cervical spine undertaken on 18 July 2022 at the request of Associate Professor Jaeger due to “non-radicular pain, left upper limb pain” reported:
“Multilevel disc bulges and mild to moderate facet arthritis in the cervical spine. Moderate to severe impingement of bilateral C4-7 roots. Suspicion of mild canal stenosis at C5-C6 level. No cord compression.”
The bone scan undertaken on 22 July 2022 at the request of Associate Professor Jaegar reports:
(a) a marked left C4/5 facet joint arthropathy;
(b) mild to moderate uncovertebral arthropathy at C5/6 on the right, and
(c) mild to moderate but at a lesser extent uncovertebral arthropathy at C3/4 on the left.
Nerve conduction studies undertaken on 4 August 2022 at the request of Associate Professor Jaeger reported that:
(a) bilateral ulnar studies were within normal limits;
(b) there was a mild left carpal tunnel syndrome, and
(c) mild to moderate right carpal.
Medico-legal reports
Dr Mastroianni provided a report to the claimant’s lawyers dated 4 June 2020.
Dr Mastroianni records that the claimant’s neck is stiff and sore with pain worse on the left side, and it is constant. The claimant did not complain of lower back symptoms.
Pain in the left shoulder and tingling and numbness in the fourth and fifth fingers of the left hand was present.
On examination of the neck there was no guarding or spasm reported. There was dysmetria present in rotation and tilt but normal in flexion and extension.
There was right shoulder tenderness above the scapula in the area of the axillary nerve but both right and left shoulder movements were normal. Sensation in the right arm was normal but in the left arm, there was a lack of sensation over the deltoid in the area supplied by the axillary nerve. The left ulnar nerve was palpable and painful with numbness over the fourth and fifth digits.
Dr Mastroianni diagnosed a cervical spine injury and injuries to the axillary nerve and ulna nerve and suggested referral to an orthopaedic specialist or neurosurgeon.
Dr Mastroianni considered the claimant had a DRE Category II cervical spine injury resulting in 5% WPI and a 6% UEI due to the ulnar nerve lesion and 4% UEI due to the axillary nerve lesion. When combined the two upper extremity impairments converted to a 6% WPI. There was no WPI given for loss of movement in the shoulders because the measurements were said to be normal.
No medico-legal reports have been provided by the insurer.
RE-EXAMINATION FINDINGS
Mr Peter Johnson attended for assessment on 10 February 2023 was assessed by Medical Assessor Barnsley. The nature of the assessment and the procedures to be followed were outlined.
No imaging studies or other documentation were brought to the assessment.
History from the claimant
Mr Johnson denied any prior difficulties with pain in his neck, arms, shoulders, or hands before the motor accident the subject of these proceedings.
The claimant says he was the driver and sole occupant of a Mitsubishi Outlander SUV. He was stationary at a roundabout entrance waiting for a truck to pass when he was struck from behind by another vehicle. The impact propelled his car forward. He recalls his head going forward and his chin hitting his chest, and his left arm being flung forward and hitting the windscreen. The car was drivable, and he exchanged details with the other driver before driving home. On that day he only recalls having some pain in the chest.
The following day he became aware of pain over the base of the neck bilaterally, and also over the tip of the left shoulder. He did not have any neurological symptoms at that time. He saw his local doctor (Dr Nagaraj) a few days later, and massage was recommended. He had some mid thoracic pain as well, but this has settled and is no longer troubling him. He did not complain of lower back pain.
The symptoms of neck and shoulder pain persisted over the next several months. It was put to the claimant that there was no mention of these symptoms for several months in the GP notes. Mr Johnson explained that they were present, but as he was receiving allied health (massage) treatment, he did not raise these symptoms with his local doctor between October 2017 and about a year later. Mr Johnson confirmed that he had no neurological symptoms during this period of time.
Mr Johnson thinks that about a year after the accident he developed some tingling in the right hand. This affected the right third, fourth and fifth digits, and was associated with some numbness. He was unable to state whether the numbness or tingling extended into the forearm. The symptoms were initially intermittent but became more persistent. He reported these to his local doctor (Dr Nagaraj) and an MRI scan was ordered. Mr Johnson understands the results of the MRI did not show why he had the tingling. He subsequently attended an osteopath and masseur and more recently has had a course of chiropractic treatment, up to twice a week. This has stopped the worst of the tingling on the right side.
He said that he developed tingling on the left side at about the same time, that is 12 months after the accident. This also affected the third, fourth and fifth fingers on the hand. He was again unable to say whether these symptoms extended into the forearm. It was brought to his attention that his local doctor first mentioned left sided neurological symptoms, describing them as “new” in June 2021. Mr Johnson explained that his left sided symptoms were mild compared to those on the right, so he had not discussed them with his doctor until then.
Because of the persistent symptoms, he was referred to Associate Professor Jaeger, who he understands to be a spinal surgeon. An MRI scan and nerve conduction studies were ordered. Associate Professor Jaeger recommended osteopathic treatment.
Mr Johnson’s current symptoms are:
(a) pain in the neck extending from the C2 spinous process to the C7 spinous process on both sides of the posterior aspect of the neck. The pain is made worse by rotation of the neck, flexion and extension. The pain varies in intensity from day to day but is present most of the time;
(b) he has pain well localised to the tip of the acromion on the left side. He has periods where it is not painful, but it had been bothersome for the last few days and on the day of assessment. When present, it is associated with pain on abduction of the shoulder. He has not identified any aggravating or relieving factors;
(c) he has variable numbness and tingling affecting the third, fourth and fifth fingers of the right hand, and
(d) he has some numbness but not tingling over the third, fourth and fifth fingers of the left hand.
Mr Johnson is currently attending chiropractic treatment every two weeks. He also receives massage every two weeks. He uses occasional Ibuprofen or Paracetamol.
Mr Johnson understands that he is to have a left shoulder ultrasound study.
Examination
On examination, Mr Johnson was a pleasant and cooperative gentleman. There were no inconsistencies observed between his observed movements and formal examination findings. He weighed 94.5kg and was 180cm tall.
Cervical spine
The claimant’s neck range of motion was measured in the three planes required by Table 8 of the Guidelines as follows:
(a) flexion of cervical spine was two thirds of normal range whilst extension was limited to half normal range;
(b) lateral flexion was symmetrically reduced to two thirds normal range, and
(c) there was symmetrical limitation of cervical rotation to half normal range.
Palpation of the neck revealed no guarding or spasm of the cervical musculature. There was no wasting of the cervical musculature.
Upper limb neurological examination
There was no wasting in any of the upper limb musculature. Specifically, there was no significant asymmetry of circumference of the arms measured 10cm proximal to the lateral epicondyle which was 32cm on the right and 31.5cm on the left, and 10cm distal to the lateral epicondyle which was 28cm on both sides.
Power was normal and symmetrical to manual resistance testing in shoulder abduction and adduction, elbow flexion and extension, wrist flexion and extension, hand grip and isolated testing of abductor pollicis brevis and adductor digiti minimi.
In terms of reflexes, finger jerks, supinator, biceps and triceps reflexes were all normal and symmetrical.
Light touch sensation was intact when tested in all dermatomes as well as the distribution of the medial, ulnar and axillary nerves on both sides. Sharp/blunt discrimination was normal across the upper limbs.
Shoulders
There was no wasting of the shoulder musculature. There was tenderness over the left (but not the right) acromioclavicular joint, but not the sternoclavicular joints or glenohumeral joints. He had a weakly positive impingement test in the left shoulder.
The range of active movements in the shoulders was measured using a goniometer with Mr Johnson asked to move as much as possible without causing pain. The measurements were taken three times and were consistent. The measurements are recorded in the Appendix to these reasons.
The observed limitations on the left side were due to pain reproduction. The minor restriction on right shoulder internal rotation was not due to pain.
Medical Assessor Gorman and Dr Mastroianni both found full ranges of movement in both shoulders. The difference between their findings and the limitations noted on the Panel’s shoulder examination were brought to Mr Johnson’s attention. He explained that his shoulders hurt from time to time and when they did, it was painful to move the shoulders, but at other times movement was unaffected.
ASSESSMENT OF IMPAIRMENT
Cervicothoracic spine
The panel considered that Mr Johnson had suffered an injury to the cervical spine in the subject motor vehicle accident. The pain has been present from soon after the injury and is consistent with a whiplash type injury associated with a rear end collision. While the claimant has not attended his GP as regularly as other injured persons might, the Panel accepts the claimant’s reasons for that as being his reliance on allied health practitioners as opposed to medical practitioners.
Due to the current complaints of pain, the claimant clearly satisfies DRE category I of the Guidelines. In order to qualify for a DRE category II assessment, Mr Johnson would be required to have:
(a) pain with guarding. There was no guarding at the time of the examination with Medical Assessor Barnsley, or
(b) non-uniform range of motion – dysmetria – there was asymmetrical loss of motion on one plane of movement (flexion / extension), or
(c) non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling);
(ii)which follows the distribution of a specific nerve root, but
(iii)with no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes – there are no objective clinical findings on testing by Medical Assessor Barnsley.
Mr Johnson’s neck injury meets the criteria for DRE category II due to the presence of dysmetria and this attracts a 5% WPI.
Mr Johnson’s injury does not meet the criteria for DRE category III due to the absence of any of the five signs of radiculopathy as set out in cl 1.138 of the Guidelines.
For completeness the Panel notes the claimant attended upon his GP five days after the accident complaining not just of neck pain but also thoracic spine pain and lower back pain. At the examination with Medical Assessor Barnsley the claimant said his thoracic spine pain had resolved and he had no complaints about lower back pain.
Left and right upper limbs
In his claim form completed one year after the accident, the claimant reported symptoms in his left shoulder and his right arm. At the first attendance on his GP, there is no report of left shoulder or right arm symptoms. The medical certificate completed by Dr Nagaraj a year after the accident confirms the absence of left shoulder and right arm symptoms at the time of the first attendance.
Did the claimant injure his left shoulder in the accident?
The claimant told Medical Assessor Barnsley that he had pain in the tip of the left shoulder and continued left shoulder symptoms for a few months after the accident but did not see his GP because he was having massage therapy. It is the Panel’s observation that the records suggest the claimant is not a frequent attender on his GP and has preferred to rely on allied health providers for treatment. While there is no report or records from the claimant’s massage therapist, the Panel accepts the claimant’s evidence that he injured his left shoulder in the accident. The claimant was the driver of his vehicle, and while the seat belt would have been going over the right shoulder not the left, the claimant’s detailed history of the accident (he was flung forwards with his left arm outstretched and hitting the windscreen) satisfied the Panel that the claimant could have and did injure his left shoulder in the accident.
While pain over the tip of the left shoulder could be a symptom of a left nerve root issue at the C4 level, it is the clinical judgment of the medical members of the Panel that the claimant’s left shoulder tip symptoms are more in keeping with a soft tissue injury to the left shoulder. There is no shoulder imaging which would assist however it is the clinical judgment of Medical Assessors Barnsley and Cameron that this soft tissue injury would not have caused any structural damage to the claimant’s left shoulder and would not be causing the restriction of movement to the shoulder.
Did the claimant sustain injury to his left axial or ulnar nerve?
Medical Assessor Gorman was asked to assess the claimant’s “left arm, axillary nerve lesion and ulnar nerve neuritis”. The Panel told the parties this is what it would assess, and the claimant did not respond to that.
Medical Assessor Barnsley undertook light touch sensation tests and sharp / blunt discrimination tests and found no evidence of medial, ulnar or axillary nerve damage in either upper limb.
The Panel also notes that nerve conduction studies undertaken in August 2022 (after
Dr Mastroianni’s examination) do not support a diagnosis of axillary nerve lesion or ulnar nerve neuritis.
Did the claimant injure his right arm in the accident?
There is no contemporaneous record of right arm injury in the GP notes and there are no records from the claimant’s allied health treatment providers to suggest he has complained of right arm symptoms at the time of the accident. At the re-examination by Medical Assessor Barnsley, the claimant denied any right arm symptoms until a year after the accident.
On the basis of the claimant’s own evidence and the absence of a contemporaneous record, the Panel is not satisfied that the claimant sustained a frank or specific injury to his right arm in the accident.
Are the claimant’s radicular symptoms caused by the accident?
The claimant has complained of tingling in his right hand with numbness and tingling in his left hand. As explained above, these symptoms would be non-verifiable radicular symptoms (confirming a DRE category II impairment) but without objective signs cannot be categorised as signs of radiculopathy (attracting a DRE category III impairment).
The Panel is of the view that in any event, these symptoms in the arms are not caused by any injury sustained in the motor vehicle accident. The claimant told Medical Assessor Barnsley that they did not develop for nearly a year after the accident. This is consistent with the GP’s notes (which record on 28 September 2018 the emergence of symptoms in the last five weeks) and the date of the claim form (6 November 2018) where they are mentioned.
The medical members of the Panel do not consider it medically plausible for there to have been an injury to the cervical spine nerve roots with no radicular symptoms for a year to then become symptomatic.
The medical members of the Panel further note that the two MRI scans (October 2018 and July 2022), both performed after the motor vehicle accident demonstrate the progression of degenerative (not traumatic) changes in the cervical spine that may represent a cause for the current neurological symptoms, namely the development of multilevel foraminal stenosis. But it is the clinical judgment of the medical members of the Panel that the multilevel foraminal stenosis was not caused by the injuries sustained in the accident and it was not aggravated or exacerbated in the accident.
What is the cause of the restriction of motion in the shoulders?
The claimant said that the cause of his loss of motion in the left shoulder evident when examined by Medical Assessor Barnsley was pain and that he has pain in both his shoulders which occurs from time to time.
The Panel notes the claimant has never alleged an injury to the right shoulder but has a minor restriction of right shoulder internal rotation. As the claimant did not injure his right shoulder in the accident this impairment cannot be accident-related.
It is the Medical Assessors’ view that the injury to the claimant’s tip to the left shoulder is not the cause of the claimant’s left shoulder restriction of motion and cannot be the cause of any restriction of motion in the right shoulder.
There is no evidence to suggest there has been a nerve injury (medial, axial or radial) in either upper limb and therefore that is not the cause of the bilateral restriction of motion. The bilateral shoulder impairment could be caused by spinal nerve root injury but as the claimant did not have spinal nerve root injury symptoms until a year after the accident, any restriction of motion caused by such an injury is not caused by the accident.
The Panel notes cl 1.19 of the Guidelines which says
“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment.”
Based on previous examination findings in June 2020 and April 2022 of a normal range of shoulder movements in both shoulders and the claimant’s own history of variable loss or restriction of movement in the left shoulder (occurring from “time to time”), it is the Panel’s view that any impairment to the shoulders is not a permanent impairment in any event, and therefore Mr Johnson does not have any additional WPI in relation to lost shoulder motion.
CONCLUSION
The claimant’s impairment is assessed as follows:
(a) cervicothoracic spine – DRE II – 5% WPI;
(b) left shoulder – 2% WPI – restriction of motion not caused by the accident, and
(c) right shoulder – 3% WPI - injury not sustained in the accident and restriction of motion not caused by the accident.
The Panel has come to the same conclusion as Medical Assessor Gorman. That is that Mr Johnson does not have a WPI greater than 10% resulting from the injuries sustained in the accident.
It therefore follows that Medical Assessor Gorman’s certificate should be affirmed.
APPENDIX
| Right shoulder | Normal | Dr Mastroianni June 2020 | Medical Assessor Gorman April 2022 | Panel Feb 2023 |
| Flexion | 180 | Normal | 180 | 170 (1 UEI) |
| Extension | 50 | Normal | 50 | 50 (0 UEI) |
| Abduction | 180 | Normal | 180 | 150 (1 UNI) |
| Adduction | 50 | Normal | 50 | 50 (0 UEI) |
| Internal rotation | 90 | Normal | 80 (0% UEI) | 70 (1 UEI) |
| External rotation | 90 | Normal | 90 | 90 (0 UEI) |
| Total UEI | 0% | 0% | 3% UEI = 2% WPI |
| Left shoulder | Normal | Mastroianni June 2020 | Medical Assessor Gorman April 2022 | Panel Feb 2023 |
| Flexion | 180 | Normal | 180 | 150 (2 UEI) |
| Extension | 50 | Normal | 50 | 60 (0 UEI) |
| Abduction | 180 | Normal | 180 | 140 (2 UEI) |
| Adduction | 50 | Normal | 50 | 50 (0 UEI) |
| Internal rotation | 90 | Normal | 80 (0% UEI) | 70 (1 UEI) |
| External rotation | 90 | Normal | 90 | 90 (0 UEI) |
| Total UEI | 0% | 0% | 5% UEI = 3% WPI |
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