Kacarova v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Kacarova v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 397
CLAIMANT:	Nonka Kacarova
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Robin Fitzsimons
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	17 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Cameron and claimant’s review under section 7.26; claimant injured in intersection collision in November 2018; claimant alleged injuries to her head (brain) neck, chest, arms and left shoulder and conceded no impairment to arms or chest; main issue was cause of vertebral artery dissection (at C3 level) and whether ongoing “dizziness” related to that injury and caused by the accident; Held – Panel not satisfied claimant sustained a brain injury; Panel satisfied claimant injured her neck and that vertebral dissection was caused by the accident; neck injury assessed under chapter 3 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) as Diagnosis Related Estimate (DRE) II at 5%; vertebral dissection caused impairment to central nervous system causing either impaired gait or altered consciousness and assessed under chapter 4 of AMA 4 at 6%; Panel satisfied left shoulder injury caused by accident resulting in impaired range of motion; right (uninjured) shoulder used as a baseline; left shoulder impairment 3%; total impairment 14% and certificate of MA Cameron revoked.
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 Cameron dated 10 October 2022. 2. Certifies that the degree of Mrs Kacarova’s permanent impairment resulting from the injuries caused by the motor accident on 28 November 2018 is greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Nonka Kacarova was involved in a motor accident on 28 November 2018. She was a front seat passenger in the family car when it was hit on the driver’s side in an intersection collision.
Mrs Kacarova says she injured her neck, chest and shoulders in the accident and made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle she says caused the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Ms Kacarova referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 10 October 2022, Medical Assessor Cameron determined that Ms Kacarova did not have a WPI of greater than 10%. The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 15 February, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 8 March 2023 the President has convened this Panel to conduct the Review.
The Panel notes Medical Assessor Cameron issued a certificate combining his assessment with an assessment of Medical Assessor Williams and therefore the Panel may be required to issue a replacement combined certificate. Medical Assessor Williams’ assessment is not the subject of a review.

LEGISLATIVE FRAMEWORK

General provisions

Ms Kacarova’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). An injured person can make a claim for both economic losses and damages for non-economic loss damages.
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[1] 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.
[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 and disputes must be referred to a Medical Assessor for determination.[2]
[2] Section 4.12 of the MAI Act.
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.

Permanent impairment assessment

Permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident 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 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, and the issues in dispute, the following chapters of the AMA 4 Guides are relevant:
(a) chapter 3, the musculoskeletal system, and
(b) chapter 4, the nervous system.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron was asked to assess the following injuries:
(a)    cervical spine injury and vertebral artery dissection at C3/4;
(b)    chest – soft tissue injury to the chest wall;
(c)    shoulder – left shoulder and arm and bilateral rotator cuff injury, and
(d)    brain injury.
The claimant was 68 at the time of the accident and 72 years of age when the certificate of assessment was issued.
The claimant reported the following history to Medical Assessor Cameron:
(a)    she was in the front seat wearing a seat belt when they were hit from the driver’s side. The car was written off;
(b)    she felt the impact but had no symptoms at first and she and her husband returned home;
(c)    she later developed vomiting and was dizzy with left sided neck pain;
(d)    she visited her general practitioner (GP) the next day and was prescribed medication and because of continuing symptoms she attended again;
(e)    she was referred to Dr Cordato, neurologist who arranged investigations and diagnosed her with an injury to an artery on the left side of her neck, and
(f)    she has had chiropractic treatment and has seen her GP on occasions.
The claimant said Dr Cordato advised her in 2021 there was nothing further he could offer, and she thinks she is getting worse. She has nausea and a strange feeling in the head. She has an unsteady gait, difficulty on stairs and numbness in her left arm. She has a diminished sense of smell.
Medical Assessor Cameron examined the claimant and noted:
(a)    there was no evidence of cognitive impairment;
(b)    there was no muscle spasm or guarding or non-verifiable radicular complaints. Cervical spine movements were restricted and asymmetrical;
(c)    the right shoulder movements were normal and there was mild restriction of left shoulder motion. His measured range of motion is included in the tables attached to these reasons;
(d)    there was no muscle wasting and no neurological deficit in the upper limbs, and
(e)    there was no abnormality in the chest or lower back.
After reviewing the material, Medical Assessor Cameron considered the claimant’s injuries were stable.
Under the heading “Summary of relevant radiological imaging and other investigations” he reports only an MRI of the head dated 25 May 2020 which showed no abnormalities.
Medical Assessor Cameron diagnosed a soft tissue injury to the claimant’s cervical spine and other soft tissue injuries. He also formed the view Ms Kacarova probably sustained a vertebral artery dissection “however this is not associated with neurological deficit” and he determined the claimant did not sustain a traumatic brain injury. He found there was no evidence of a disturbance of consciousness at the time of the accident or other abnormality indicating brain injury.
Medical Assessor Cameron assessed impairment at 5% for the neck as Diagnostic Related Estimate (DRE) category II and 3% for the restricted left shoulder motion.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant says at [2] that Medical Assessor Cameron’s assessment is incorrect because:
(a)    he failed to consider radiological scans and studies in respect of the vertebral artery dissection;
(b)    failed to consider Dr Cordato’s opinion that the claimant’s dizziness and unsteady gait were due to her vertebral artery dissection;
(c)    failed to properly consider the report of Dr O’Sullivan and his opinion that the vertebral artery dissection was caused by the accident, and
(d)    erroneously determined there was no assessable abnormality of station and gait.
The claimant says at [15] that the only radiology referred to was the MRI of 25 May 2020. The claimant says the Medical Assessor failed to consider four other imaging studies.
The claimant says at [18] that Dr Cordato and Dr O’Sullivan both expressed the view that the claimant’s poor balance and dizziness were caused by the dissection.
The claimant says at [22] that Medical Assessor Cameron did not undertake a neurological examination other than for the upper limbs and referred to Medical Assessor Williams’ evaluation of permanent impairment related to dizziness and vertigo.
The claimant notes at [23] that Medical Assessor Williams was only asked to assess dizziness and vertigo resulting from the ear, nose and throat structures and did not undertake an assessment of station and gait under the neurological chapter.

Insurer’s submissions

The insurer submits:
(a)    the Medical Assessor has explained that he had considered the documents and that he is not required to specifically mention all the documents;
(b)    he had referred to the opinions of Drs Cordato and O’Sullivan;
(c)    the contents of the scans and studies will not result in a change to the assessment as Medical Assessor Cameron found no neurological abnormality was causing the alteration to the claimant’s station and gait, and
(d)    while the Medical Assessor considered the claimant’s station and gait, he did not consider any impairment to it was caused by a neurological complaint caused by the accident.

Procedural matters

On 8 March 2023, the Panel issued directions to the parties for bundles of documents to be provided noting there appeared to have been an issue as to precisely what Medical Assessor Cameron had, or did not have, at the time he undertook his assessment.
The claimant provided a bundle (identified in the electronic file as AD2) and the insurer provided its bundle (AD3 in the electronic file).
The claimant lodged a small bundle of documents from Dr Cordato with the consent of the insurer. The Panel admits these documents into evidence as they are relevant to the matters in issue.
The Panel met on 10 May 2023 and reported to the parties on 15 May 2023. The Panel noted the parties did not take issue with the assessment of the claimant’s injuries to her chest, shoulder, arm, and neck (soft tissue injury) only. The parties were asked to confirm whether the only injuries to be assessed were the vertebral artery dissection and any brain injury.
The Panel requested radiology and advised the parties of the re-examination date.
The claimant subsequently advised by way of a message uploaded to the portal, that the chest and arm injuries were not disputed.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant’s application for personal injury benefits[5] was signed and dated 6 March 2019. The claimant says:
“I was a passenger in vehicle … driving along Chapel Street towards the intersection with Mooorefields Road when vehicle … made a right hand turn across our path and collided with our vehicle.”
[5] The claim form and certificate of capacity is at page 55 of AD3 and page 57 of AD3
The claimant alleged injuries to her head, chest, left shoulder, neck and psychological injury.
Dr Islam of Blue Cross Medical Centre completed the medical certificate on 13 February 2019[6] diagnosing, “dizziness with occipital headache and neck pain.” He noted the referral to Dr Cordato and further investigations.

Treating medical records and reports

[6] Page 61 of AD2.

Pre-accident records – Blue Cross Practice

The claimant’s pre-accident records demonstrate a 2007 left knee injury. An MRI of 5 July 2007[7] concludes a “complex medial meniscal tear, chronic subcortical stress fracture of the medial tibial plateau, and osteochondral injury of the medial tibial plateau”. An arthroscopy was done on 13 August 2007. After 16 physiotherapy treatments Mrs Kacarova was discharged from physiotherapy with home exercises and full movement but slight pain[8].
[7] Page 169 of AD3.
[8] Page 177 of AD3.
In 2008 she was referred to Dr Hersch and then Dr Schwartz due to left lateral leg and toe numbness with loss of sensation and paraesthesia after the 2017 fall. The claimant was concerned about nerve symptoms and imbalance when she was working and standing.[9] The claimant made a workers compensation claim. Dr Schwartz wrote to Dr Toomey concerned that the claimant’s symptoms were a neuropraxia either peripheral or lumbosacral and he arranged tests and radiology. Nerve conduction studies suggested, “chronic partial denervation consistent with a mild left L5 radiculopathy.”[10]
[9] Page 186 of AD3.
[10] Page 187 of AD3.
A further referral to Dr Schwartz was given in July 2009 which suggests there was a lumbar disc herniation at L5.
Bilateral knee X-rays were undertaken due to “recurrent falling”[11] with the result being degenerative changes in both knees but no fracture.
[11] Page 208 of AD3.
In 2015 Mrs Kacarova was referred to Dr Rimmer in these terms:
“Thank you for seeing Mrs Nonka Kacarova, age 65 yrs, [who] has a right knee injury few years ago and has had falls, she has a tear of her right medial meniscus and degenerative changes too ?? needs arthroscopy or [total knee replacement] . Please review and advise [me]. She has the MRI.”
The MRI dated 2 March 2015 has a history of a fall noted and injury to the right knee and there was a tear of the medial meniscus identified with degenerative changes throughout the knee.
An MRI of the lumbar spine was undertaken on 26 March 2015 which showed “quite minor spondylitic change but no central stenosis or nerve root compression.”[12]
[12] Page 219 of AD3.
Dr Rimmer saw the claimant on 19 August 2015 and recommended knee surgery.[13]
[13] Page 218 of AD3.
A further referral was given on 19 April 2016 again referring to falls.
Dr Watts wrote to Dr Toomey on 10 February and 6 March 2017 concerning an abnormal portion of bone on the right at L5 and scans confirmed the claimant had “L5/S1 facet joint symptoms without significant neurological complications.” Dr Watts said:[14]
“Examination tends to indicate a faulty walking mechanism and a suspect right-sided pelvic tilt with right-sided lumbar socliosis.”
[14] Page 222 of AD3.
X-rays showing a bony feature at L5/S1 which had progressed since 2009 and a CT scan was done showing an “exuberant facet joint arthropathy.”[15]
[15] The x-ray report is a 224 and the CT scan at 225 of AD3.
On 17 February 2017 Mrs Kacarova was referred to Dr Kuo because of bilateral knee pains. Dr Kuo’s report is dated 2 March 2017[16] which records a history of an arthroscopy in 2010 after which the claimant had pain with a tendency for her left knee to give way. In one of her falls, she then injured her right knee. He recommended conservative measures and a steroid injection into her right knee. She returned to Dr Kuo on 20 November 2017 after four months overseas. There is a history of a further fall onto her right side, an increase in patella-femoral symptoms and a sprained right ankle. He arranged further physiotherapy and injections and then surgery as the last option.[17]
[16] Page 226 of AD3.
[17] Page 229 of AD3.
On 30 November 2017 Mrs Kacarova was referred to Dr Chan for bilateral knee arthritis. The referral says the claimant was awaiting knee surgery but has had falls. The corresponding note in the GP records suggests Dr Chan was to be asked for a second opinion.
The claimant had hydrotherapy in April 2018, giving a 10-year history of falls.
On 25 October 2018 she was referred to Dr Howison, ear, nose and throat (ENT) surgeon for nose bleeds.[18] The corresponding note in the records of the GP practice is “last night nose bleeding. Looks OK.”
[18] Page 82 AD3.
During 2018 there were other attendances before the accident for gastrointestinal issues, fatty liver, review of her renal impairment and borderline glucose readings.
The Panel has not been taken to any pre-accident records suggesting a condition of dizziness or neck pain.

Post-accident GP records

The insurer’s bundle includes records from Blue Cross[19] however these do not include notes as such but they include radiological reports, test results and specialist letters. The claimant’s bundle includes records from Blue Cross as at 7 November 2019.[20] There are no GP records or specialist notes since 2021.
[19] Page 20 AD3.
[20] Page 87 of AD2.
The claimant attended Dr David Wang on 29 November 2018 advising she had a car accident the night before and had left arm pain today and was feeling nauseous when turning her head and was unable to eat. She was prescribed Stemetil.
The claimant returned on 3 December 2018 and saw Dr Hoang who was told about the car accident. The claimant complained of pain in the back of her head, pressure in her ears, feeling dizzy when extending her neck. She was feeling sleepy and had a sore neck and sore shoulder on the left side. A CT scan of the brain was requested.
There was a further attendance on 10 December after the CT scan which showed no sign of brain injury. On 12 December 2018 Mrs Kacarova attended with further complaints of dizziness. On 17 December 2018 she attended on Dr Islam again complaining of dizziness. The Stemetil was said to be helping a bit and her right ear was aching. He requested a carotid artery doppler ultrasound and referred her to Dr Cordato.
The scan of 21 December 2018 showed a “small amount of atherosclerotic plaque seen at the carotid bifurcation” on both sides, however it was not causing significant stenosis.

Dr Cordato

The claimant was first referred to Dr Cordato,[21] neurologist on 17 December 2018. The referral notes the claimant “has been suffering from vertigo / dizziness and dull headache for about 3 weeks, on Stemetil but not helping much.”
[21] A bundle of his records was filed on or about 7 July 2023.
Dr Cordato wrote to Dr Islam on 4 February 2019. The claimant said she did not recall suffering a head injury or losing consciousness and thought “perhaps her head hit backwards onto the seat.”
Dr Cordato does record a seat belt injury and has a history of the car being written off, the onset of symptoms that afternoon and an attendance on Dr Islam the morning after the accident.
While her vomiting had resolved, he says there was nausea and dizziness with a persistent dull headache.
Neurological tests were administered and said to be normal.
He considered the dizziness and headache cervicogenic (that is stemming from the neck) but said further investigations were warranted. On 15 February 2019, electrophysiological testing showed no peripheral vestibular dysfunction (no balance disorder).
An MRI/MRA of the brain, head and neck on 28 February 2019 found:
“…there is no significant intracranial injury. There is a mild degree of microvascular ischemia in the cerebral white matter. There is mild cervical spondylosis. No evidence of a disc protrusion or neural compression.
The cervical canal and cord are intact.
There is focal high grade stenosis of the left vertebral artery at the C3 level (greater than 90%). - There is no dissection. - - Correlation with a CTA is recommended. There is a dominant patent right verebral artery. The common carotid and internal carotid arteries are patent bilaterally. The anterior circulation is intact.”

On 4 March 2019 Dr Cordato advised Dr Islam that he wanted to do a CT Angiogram and he had advised Persantin medication in the interim.
The result of the 12 March 2019 CT angiogram was, “focal high-grade stenosis of the left vertebral artery at the C3/4 level, possibly secondary to localised dissection.” The rest of the vessel was patent as was the right vertebral artery.
Dr Cordato wrote to Dr Islam on 13 March 2019 saying, “I think this is explaining symptoms of dizziness triggered by head movement.” In addition to the Persantin he recommended Lyrica for Ms Kacarova’s, “musculoligamentous symptoms and possible referred nerve pain.” He also recommended specific physiotherapy avoiding neck manipulation.
In a letter dated 26 April 2019, Dr Cordato advised that the claimant’s headaches were “generally much better” and that her intermittent dizziness and left neck and shoulder pain were tolerable and responding to massage and Lyrica.
The 24 June 2019 MRI (reported 26 June 2019) showed no change in the dissected artery and mild cerebrovascular disease.
On 5 July 2019, Dr Cordato wrote to Dr Islam after seeing the claimant and said:
“[Her] repeat MRI shows an unchanged appearance of focal left vertebral stenosis at around C3 where she has most probably suffered post-accident dissection.”
Dr Cordato said he would see the claimant in six months and did so on 15 January 2020. Mrs Kacarova had not improved and there was now, “shooting pain in the left occipital scalp region radiating to the temple and frontal scalp in an occipital nerve distribution.” In addition, there was a new symptom of loss of taste although after further discussion it appears it was a loss of smell only.
He noted a negative Hallpike’s manoeuvre suggesting the vertebral dissection is the reason for the dizziness (rather than vestibular pathology within the inner ear).
At Dr Cordato’s request the claimant had a further MRI of her brain and neck which showed no new developments. A CT of the sinuses on 11 February 2023 showed two 1 cm cysts in the nasal passages.
Dr Cordato wrote to Dr Islam on 12 March 2020 about the loss of smell and could not find a “neurological” explanation and suggested an ENT review. He said:
“From the point of view of MRI there was a stable left vertebral dissection. I think we need to clarify that this is posttraumatic and hence her motor vehicle accident is the responsible cause of her vertebral dissection. It is stable and is best managed conservatively. From the information she has given me and from my reviews of the imaging of her there is no role for her to undergo any form of intervention for it. The best treatment is to continue with antithrombotics and optimal control of her vascular risk factors. She also has a mild degree of chronic small vessel disease on her brain and it is important that her blood pressure, cholesterol and blood sugar readings are all within target normal ranges.”
A further MRI was done on 27 May 2020 and a left mid frontal periventricular / pericallosal white matter lesion was seen, in addition to the previously known findings.
Dr Choroomi, ENT wrote to Dr Becvarovski on 18 June 2020[22] about the claimant’s impaired senses of taste and smell. This hyposmia was said to have developed “gradually” which suggests to the Panel this condition is not related to the accident. While Mrs Kacarova could smell coffee her ability to smell things was said to be worsening. He expressed the view her symptoms “are likely to be due to some head trauma which she sustained during her MVA”.
[22] Page 289 of AD2.
On 3 July 2020, Dr Cordato wrote to Dr Becvarovski at St George Private Hospital concerning this MRI and the claimant’s loss of smell. Dr Cordato had been advised it was unlikely to be nasal related but “probably central brain related.” There was nothing to be done about it. The brain lesion he says was evident 15 months previously and he did not know its aetiology and advised further review in 12 months with a repeat MRI.
On 26 March 2021 Dr Cordato wrote to Dr Islam. The claimant was still complaining of random and unpredictable dizziness which he suspected was either cervicogenic or contributed to by the left vertebral occlusion. He confirmed it was not due to benign positional vertigo.
The claimant was also complaining of left arm paraesthesia with left shoulder discomfort, and Dr Cordato was going to do some nerve conduction studies. Her MRI of the brain was said to be stable. Nerve conduction studies done on 7 June 2021 were normal apart from suggesting a mild left C6-7 radiculopathy.
The last letter from Dr Cordato to Dr Islam is dated 16 June 2021. The claimant’s medication was reviewed. In term of the nerve conduction studies he records “there is not neck and referred arm discomfort” but he has referred Mrs Kacarova for physiotherapy. The Panel considers the word “not” is a typographical error. The word “no” does not appear a plausible substitution as the clamant has been referred for physiotherapy. The Panel is of the view that the most likely word Dr Cordato meant to use was “now”.
Dr Cordato also records a complaint of loss of consciousness on the Sunday morning. Mrs Kacarova reported previous episodes lasting only seconds. The claimant said she fell onto her left leg. Dr Cordato was going to talk to one of his vascular colleagues and arranged for an EEG. The EEG was done on 23 June 2021 and was normal.
There are no further treatment records from Dr Cordato after this June 2021 letter.

Medico-legal reports

Claimant’s reports

The claimant obtained a report from Dr Bodel, orthopaedic surgeon dated 4 March 2021.[23] He said he had seen the claimant on three previous occasions (2009, 2010 and 2015) in relation to her work-related injury. He notes that claim had settled, and that the claimant had returned to work.
[23] Page 77 of AD2
Dr Bodel appears to have a consistent history of the development of symptoms and treatment. Mrs Kacarova reported continuing pain in the head, neck and over the left shoulder. Pain is aggravated with a head down posture and using her arms overhead. She complained of numbness and tingling down the left arm to the middle and ring fingers. She also said she will wake from sleep if she rolls on her left side.
The claimant gives a consistent history of the accident and says the airbags in her husband’s vehicle did not deploy. They were only 200 metres from home and drove home “with difficulty” and the car was later written off (it was a Mazda 3).
On examination, there was guarding, tenderness and asymmetrical loss of motion being more restricted in rotation on the right. Her right shoulder motion was normal however there was restriction in particularly with flexion and abduction in the left. The measurements he obtained are recorded in the attachment to these reasons.
There were no signs of radiculopathy and Dr Bodel noted that vertebral artery dissection was a matter outside his area of expertise.
He assessed WPI at 13% - 5% (DRE II) for the neck and 8% for the left shoulder.
The claimant’s solicitor obtained a report from Dr Howison, ENT dated 8 July 2021[24] to consider the loss of taste and smell. He claimant said this came on two weeks after the accident and has continued to decline and she is now unable to smell and has lost the ability to taste flavours but can distinguish bitter, sweet, sour and salt.
[24] Page 308 of AD2.
Dr Howison expressed the view that the claimant “has sustained damage to the olfactory system due to the head injury she sustained in the motor vehicle accident.” He said that she sustained no injury to the cranial nerve hence she remained with the ability to taste sweet, sour, salt and bitter. He assessed WPI at 3%.
Dr O’Sullivan provided a report dated 2 November 2021 to the claimant’s lawyers.[25] He has a history from the claimant of no head injury and no loss of consciousness. He also has a consistent history of Mrs Kacarova’s symptom development and treatment. The claimant gave Dr O’Sullivan a history of the loss of taste and smell which she said developed within two weeks of the date of the accident.
[25] Page 315 of AD2.
Dr O’Sullivan noted the reports of Dr Bodel and Dr Howison and confined his opinions to the claimant’s left vertebral artery dissection and dizziness. However, after specific questioning, he expressed the opinion that “this is not true vertigo”. He found that the arterial dissection was the cause of the claimant’s poor balance, and the dissection was caused by the accident. He assessed WPI at 9% under the “station and gait” Table 13 at page 148 in chapter 4 of the AMA 4 Guides.

Insurer’s reports

The insurer obtained a report from Dr Walker, neurologist dated 22 March 2021. He expressed the opinion that vertebral artery dissection from a “minor whiplash” was uncommon but not impossible although unlikely if the only symptom recorded was dizziness. He considered the cause of the dissection was atheromatous stenosis rather than trauma related.
Dr Walker has a history of an episode or two of dizziness every day with a feeling like her head is spinning. Mrs Kacarova had left sided neck pain radiating into the left shoulder with arm pain and headaches.
Dr Walker had a history of the onset of anosmia in 2019 and says that this is not accident-related.
On examination, Ms Kacarova walked normally but had a slight tremor in her right hand.
He relates the dizziness to the accident on the basis there was no prior history and says the treatment has been reasonable although he debates the diagnosis. He assessed the claimant’s neck injury as DRE II = 5% WPI.
The insurer obtained a report from Professor Fagan in relation to the claimant’s ear nose and throat impairment.
Professor Fagan obtained from the claimant, a history of the accident that included two collisions, a collision with the car near the driver’s side door and a second collision when the rear door was hit. Dr Fagan had a history from the claimant of feelings of instability. He also has a history of a total loss of smell and taste which came on “a few days after the accident when she had been vomiting heavily”.
Professor Fagan found the claimant had an inner ear disturbance and agreed with Dr Howison that the claimant’s WPI resulting from that condition was 3%.

Other assessments

Medical Assessor Cameron undertook an assessment on 21 December 2019 of the claimant’s injuries to determine whether they were “minor” injuries or not.[26] He found both the cervical spine and left shoulder injury were minor but found the left vertebral artery dissection was not a minor injury.
[26] The wording of the dispute has changed to “threshold” injury since 1 April 2023 however as Medical Assessor Cameron at that time assessed “minor” injury, the Panel will refer to the former terminology.
The claimant was assessed by Medical Assessor Williams on 10 December 2021 (with the certificate dated 24 December 2021). He was asked to assess dizziness and vertigo from an ear, nose and throat (ENT) perspective.
He says at [8] that the claimant had no previous history of head trauma or significant medical issues other than hypertension.
He takes a history of an impact to the driver’s side of Mrs Kacarova’s husband’s car. She did not recall a loss of consciousness or whether she hit her head on the headrest. She says she had no facial lacerations or bleeding from the ears or nose. She had bruising on her left neck, left shoulder and left side of her chest.
The day after the accident, M Kacarova said she was shaking, vomited and had a headache. She attended her GP the day after that was given Stemetil and had an MRI of her brain.
She reported dizziness since then which was like being in a haze most of the time and a feeling of being off balance. The claimant told Medical Assessor Williams she was referred to Dr Cordato who diagnosed the dissected vertebral artery.
The claimant reported that her vomiting stopped after a month, but the dizziness had not improved and in January 2019 she found she had lost her sense of smell.
Medical Assessor Williams records that the claimant walked into his rooms with no difficulty. Tests for dizziness were normal. Tests for smell suggested she qualified for anosmia although her sense of taste was normal.
Medical Assessor Williams found “no objective findings of vestibular dysfunction available to me”. After considering pages 228-229 of chapter 9 in AMA 4 Guides (ear, nose, throat and related structures) with reference to vestibular dysfunction, there was therefore no assessable impairment due to any disorder of equilibrium.
Medical Assessor Williams found the loss of smell not caused by the car accident because there was no head or nasal trauma and, on the history given to him, no record of loss of smell for almost a year after the accident. He found no loss of taste.
He therefore found no impairment in respect of the injuries he was asked to assess.
Medical Assessor Samuell assessed the claimant’s alleged psychological injuries of post-traumatic stress disorder and anxiety.
The claimant reported problems with her breathing in February 2020 which her GP thought were panic attacks. The claimant thought it was nerves and she was experiencing chest pain. She was prescribed Citalopram an antidepressant. She does not appear to be prescribed this currently.
Medical Assessor Samuell found no significant or disabling psychological symptoms and made no diagnosis of any psychiatric condition.

RE-EXAMINATION FINDINGS

The claimant attended a medical examination with Medical Assessor Fitzsimons on 17 July 2023.

Pre-accident history

Ms Kacarova has been in Australia since 1985. She was born in Bulgaria, and she came to Australia via Serbia, where she went to university and worked in a shipping company. Her last employment in Australia was as national credit manager for Hynay Shipping (a Korean shipping company). She had formally retired one year before the accident, but she did continue undertaking some part-time jobs. She has not returned to any work since the accident.
Mrs Kacarova is currently 73 years of age.
The Panel notes that Mrs Kacarova’s has the following vascular risk factors:
(a) her records disclose she has a history of high blood pressure but not high serum cholesterol, and
(b) she is not diabetic however she says she has been told that her kidneys are not working well. She understands that this may be due to the excessive intake of painkillers in the past. The Panel notes that kidney dysfunction may relate to the claimant’s hypertension.

History of the accident and early treatment

On 28 November 2018 she was the front-seat passenger, wearing a seat-belt, in a car which was involved in an intersection collision. She says that the result of the impact was that the seat-belt tightened around her neck. Her head was thrown backwards and forwards and hit the headrest. Afterwards the left side of her neck and the left side of the front of her chest became very “blue”, as a result of a seatbelt bruise. She was aware of pain at the back of her head (occiput) straight away.
She remembers a passer-by opening her door and helping her to get out. For a short time, she thought that her husband, who was the driver, was not responding.
Her car was driven home but later completely written off. She cannot remember exactly how the car was hit when it was T-boned from the right by the other vehicle, although she said it was not travelling very fast.
The accident was only a few hundred meters from home, and so she was not taken to hospital.
She said she saw a doctor the next morning. She had been vomiting overnight and felt very unsteady on her feet and had a sense of rotation, especially if she moved her head or wanted to get up. Her GP gave her medication for the vomiting and arranged for radiology.[27]
[27] This is confirmed by the GP entry of 29 Nov 2018, page 136 of AD2.
Dr Wang told her that she probably had concussion, but that “nothing was broken”. She was advised to continue taking analgesia for pain around the left shoulder.
She had X-Rays at a radiology practice in Campsie five days later.
Later her GP referred her to Dr Cordato, neurologist, who arranged MRI scanning, including MR angiography (MRA) of her cranial and cervical arteries. She was told she had damaged her left vertebral artery and left shoulder. She was prescribed medication. He advised her that her instability and dizziness was due to this dissection.
Mrs Kacarova says she continued vomiting for some two months after the accident, despite taking medications. The Panel notes that the GP notes do not record a history of vomiting over this period of two months after the accident but does record ongoing nausea (treated with Stemetil) and dizziness after the accident. Vomiting on the night after the accident has been quite consistently reported to other doctors who have seen the claimant.
The claimant was referred to physiotherapy for her left shoulder, but her specialist advised the physiotherapist not to touch her neck. She has ongoing occipital pain. She cannot make herself comfortable. She has a funny feeling all over her head. Sometimes she has a pain on the left temple, or it a sense of pressure in her head. She fears she will have a stroke.
When there were big fires around Sydney (in the summer of 2019/2020) Mrs Kacarova said she could not smell the smoke in the way that everyone else around her could.
The claimant said when she began getting a bit better and began a little cooking, she realised she could not smell onion or spices or perfume. In fact, she says she cannot smell anything. She reported difficulty with her sense of taste. She can taste – salty, sour, sweet but not the subtlety of flavours.
She has had multiple falls since the accident she said both “little falls and big falls”. She could not say how many. She said she began getting these falls after the accident. She said she has little warning of an impending fall, other than that she may have a sense of “dizziness.” By this she meant “blurriness” and only very occasionally a rotary vertigo in her head before a fall. She believes she momentarily loses consciousness as part of these falls.
She has had various injuries as a result of these falls. She recalls one occasion in 2021 when she injured a left toe, and the nail came off. There was a more serious injury in December 2022, when she landed on her left buttock (and she showed me a photograph of the bruised buttock). She says she has ongoing pain around her left hip as a result of that particular fall. The Panel notes we do not have GP notes from this time concerning these falls.
Medical Assessor Fitzsimons asked the claimant about the cause of her falls. The claimant explicitly denied that the falls she has had after the accident and before the fall onto her left hip, resulted from pain around her lower back or left hip, or from her old left knee damage. She says she now feels unstable because of the dizziness she feels which she says began after the accident. She was adamant that her falls started straight after the accident.
Medical Assessor Fitzsimons brought records concerning abnormal blood pressure to her attention, but Mrs Kacarova said that her falls had nothing to do with her blood pressure abnormalities.

Current symptoms and treatment

The claimant complained of continuing dizziness. Medical Assessor Fitzsimons asked her to describe this “dizziness”. Mrs Kacarova said “I feel blurred. I feel blurred most of the day”. After some further discussion she then clarified that by blurriness she does not mean a sense of rotation. She means that she is not stable. This “dizziness” may be brought on if she elevates her left arm or lies on her left shoulder. Sometimes she reports there is momentary loss of consciousness associated with these sudden falls.
Mrs Kacarova has no difficulty with speech or with swallowing, and she has no double vision. Although she feels “blurriness” she denied having any visual difficulties.
The claimant complained of pain extending from her neck over the upper thorax to her left shoulder and into the third and fourth fingers.

Mrs Kacarova says she has been unable to smell anything since the accident, and that her sense of taste is blunted. However, she can taste salt and sugar, but not spices.
Mrs Kacarova said she has great difficulties with walking up and down, particularly with walking down, as she is afraid she will fall. She holds handrails on both sides where possible. She has an old two-storey house and now sleeps downstairs, whereas before the accident she slept upstairs. She has installed a downstairs shower near a bedroom. She used to care for a garden, but not now. She feels “dizzy” when she gets out of a chair and has to hold onto furniture. She says that her injured hip has added to these mobility problems, but that she altered the house layout after the accident but before the hip injury last December.
She only goes shopping if her husband or her sister come with her. She may hold onto the trolley if she feels dizzy while shopping. She does not travel or drive because of the dizziness, which she again describes as a “blurred” feeling. She also avoids seeing friends, because of her dizziness. She remembers to shower as usual, but her sister (who lives nearby) may help her with showering in case she feels dizzy.
She has no difficulty with memory. She continues to read a lot (for instance, she was currently reading a book about archaeology).
She usually takes a taxi to appointments, and arrives on time, and finds her way around home or while shopping satisfactorily. She looks after her own bank account, although her husband may take care of payments as she has a tendency to become angry. She does not see her friends as much as she used to, because she is worried about dizziness.
Mrs Kacarova’s current medications include:
(a)    Lyrica 25mg;
(b)    Tramal SR 100mg (an opiate);
(c)    APX-paracetamol/codeine 500mg/30;
(d)    Zanidip (lercanidipine, for blood pressure);
(e)    Micardis 80mg;
(f)    Cartia 100mg (aspirin, for the vertebral artery dissection), and
(g)    Pariet 10mg.
Mrs Kacarova saw her treating neurologist, Dr Cordato, quite regularly after the accident. However, he told her in 2021 that there was no more he could do for her and she no longer sees him.
She has had shoulder and hip physiotherapy intermittently since the accident, but it has not helped much.
She sees her GP regularly for medication.

Past health

Medical Assessor Fitzsimons brought various GP records from before the accident to the claimant’s attention, and in particular the 2014 records regarding falls related to left knee pathology. The claimant advised she could not recall more than one or two falls due to left knee pain and instability in her knee. She did recall a significant fall on to her right knee, which necessitated a later injection into the right knee. She has had surgery on her left knee.
It was also brought to Mrs Kacarova’s attention various records regarding back pain and left sided “sciatica”, including a GP record of 24 January 2017 which describes back pain and sciatica, and refers to MRI scanning She had difficulty remembering this. On reflection she thought she might have had back pain for a while, but that it did not extend down a leg, and she said that it had got better. She explicitly denied ever falling before the accident because of back pain.

Examination

Mrs Kacarova is left-handed. Her blood pressure was measured at 158/83 sitting and 149/84 standing. There was no significant postural drop in pressure from sitting to standing. Both of these measurements are within the range of high blood pressure stage 2.
On the whole she presented in a co-operative straightforward and articulate manner, but English is not her native language, and there were times when difficulty in sentence construction and also a marked accent necessitated clarification of her intended meaning or further explanation of questions.
There were no evident cognitive abnormalities. A mini-mental examination was normal She had an 8-digit forward recall, and a 3-digt backward recall. Serial 7 subtractions from 100 were quick and accurate. She was fully orientated in time. Copying of overlapping pentagons was normal, as was drawing a conventional clock with the numbers and hands placed accurately.
There was no dysarthria (speech abnormality resulting from neurological injury). For example, Mrs Kacarova had no difficulty pronouncing “baby hippopotamus”. There were no abnormalities of facial sensation, within any of the three divisions of the trigeminal nerves. There was no facial muscle to suggest an issue with the seventh cranial nerve.

Cervical spine

There was no cervical guarding. Right lateral rotation and right lateral flexion were full. Left lateral rotation and left lateral flexion were each limited to approximately one half normal. Forward flexion was full. Extension was half normal.
Tests of power and sensation in the upper limbs did not reveal any abnormality. Deep tendon reflexes in the upper limbs were normal and symmetrical. The forearms were equal in circumference. The left upper arm measured 0.5 cm greater in circumference than the right which is in accordance with the claimant’s left arm dominance and does not indicate atrophy or wasting.
Romberg’s test was borderline in that Mrs Kacarova began swaying, but not grossly, after standing with her eyes closed. She could not attempt Unterberger’s test, because of her weak and painful upper left leg and hip.

Lower limbs

Right heel-shin test was excellent. She could not meaningfully attempt left heel-shin testing because of left hip pain which she says is consequent upon a hip injury from a fall last December. Heel-toe gait could also not be meaningfully tested because of hip pain and the need to avert a fall. The initial attempt was unsteady.
There were no observable abnormalities of proprioception of either her feet or her great toes. Two-point discrimination test on the dorsum of her right foot was normal at about 3cm, but she appeared to have difficulty in detecting two-points at all on the dorsum of her left foot. The medical members of the Panel note that the findings may relate to impingement on her left common peroneal nerve, which is often implicated with knee pathology.
Two-point discrimination was also normal (3mm) on her fingers. Position sense was intact bilaterally.
It is the clinical judgment of the medical members of the Panel that these findings and observations do not support peripheral neuropathy as a cause of the claimant’s tendency to fall.
The right knee reflex was very sluggish. The left knee reflex could not be elicited and likely explained by her past knee surgery. Ankle reflexes were absent bilaterally on repeated testing, and even with re-enforcement procedures, save for a flicker with re-enforcement on one occasion.

Shoulders

Mrs Kacarova reported pain over the medial aspect of the left trapezius in the upper thorax, extending in a lesser manner over the left shoulder.
Mrs Kacarova did not disclose any injury in the accident to her right shoulder.
The following active movements were recorded with the assistance of a goniometer:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

140°

130°

Extension

60°

40°

Adduction

30°

20°

Abduction

150°

130°

Internal Rotation

90°

50°

External Rotation

90°

50°

Radiology

The following radiological images were provided and viewed at the consultation. They were reported as follows:
(a)    a CT brain scan dated 5 December 2018 reported as follows, “There is no significant sequelae secondary to the patient’s head trauma”. The medical members of the Panel agree that no evidence of direct traumatic injury;
(b)    bilateral carotid and vertebral Doppler duplex studies dated 20 December 2018 showed normal anterograde flow in vertebral arteries. There was a small amount of atherosclerotic plaque at the carotid bifurcations which was not haemodynamically significant;
(c)    an MRI brain and MRA carotid and vertebral arteries dated 26 June 2019 showed multiple small scattered high signal focus in the cerebral white matter consistent with the known pre-existing microvascular ischaemia. This has remained stable. The posterior fossa structures are preserved. The ventricles and subarachnoid structure are preserved. On the MRA study, the focal stenosis/dissection of the left vertebral artery at the C3 level is again noted. This is unchanged by comparison with a CT angiogram of 12 March 2019. The rest of the vessel is intact. The right vertebral artery is patent. The common carotid and internal carotid arteries are patent bilaterally. The report notes, “Persistent focal stenosis/dissection of the left vertebral artery at the C3 level with no significant recanalization. Remaining vessels patent. There is mild cerebrovascular disease”, and
The medical members of the Panel agree that multiple signal hyperintensities on T2 brain MRI imaging appear microvascular and are, on the basis of the claimant’s history, a result of hypertension. The narrowing of the left vertebral artery on MRA at the C3 level is striking. Normal posterior fossa with no MRI evidence of infarction is consistent with absence of clinical evidence of a completed stroke;
(d)    the Panel was unable to view the images of the MR angiography undertaken on 28 February 2019. The report has been considered (see paragraph 65 above);
(e)    an MRI of the internal auditory canals (IAC), brain and paranasal sinuses dated 27 May 2020 showed thickening of fluid in sphenoid sinus, a retention cyst at the base of the right maxillary antrum and mucoperiosteal thickening of the left inferior mastoid air cells as described. The olfactory bulbs and olfactory sulci appear normal, and the brainstem and cerebellum appear within normal limits for age. Foci of cerebral hemispheric white matter lesions are mainly peripheral and “would be most in keeping with mild microvascular ischemic change”.
One lesion in the pericallosal /periventricular white matter is not typical for microvascular change. The medical members of the Panel agree that this lesion, previously seen but not commented on in the scan of 26 June 2019, is unusual, particularly for size, but not conclusively different. There is the abnormal appearance of the left vertebral artery at the edge of the region scanned, and
(f)    the imaging of the CT neck angiogram (CTA), 12 March 2019 could not be viewed by the Panel but the report has been read and considered. It shows focal high-grade stenosis of left vertebral artery at C3/4 level which the radiologist thought was possibly secondary to local dissection. The rest of the left vertebral artery, the right vertebral artery and both common carotid arteries were patent.
The Panel notes that CTA can detect vascular dissections not seen on MRA (and sometimes vice versa). This can also be inferred from the MRA radiological report (28 February 2019) which recommended CTA.
Mrs Kacarova cannot recall having had any left shoulder radiology undertaken and did not have any with her at the examination.

WHAT INJURIES WERE CAUSED BY THE ACCIDENT?

Following receipt of the Panel’s report issued after the preliminary teleconference, the claimant conceded she had no impairment to her chest or arms as a result of accident.
The Panel notes the claimant’s history of multiple falls since the accident including a fall in December 2022 when the claimant injured her left hip which has caused considerable pain and further mobility issues. While the claimant attributed this fall to the accident, the Panel will not consider that injury and any associated impairment as it has not been referred for assessment and particularly because there are no treatment records before the Panel about it.
The Panel has proceeded on the basis there is to be an assessment de novo of the claimant’s:
(a)    brain injury;
(b)    neck injury, and
(c)    left shoulder injury.

Did the claimant sustain a structural injury to her brain in the accident?

The claimant noted a head injury in her claim form. She told Medical Assessor Fitzsimons that on impact, the seat belt tightened around her neck and her head was thrown backwards and forwards. This history has not been given to others. In the letter to Dr Islam after his first consultation, Dr Cordato records that the claimant did not recall suffering a head injury or losing consciousness but she thought that she might have hit her head on the seat. She did not tell Dr Bodel she had hit her head. Medical Assessor Cameron has a history of her feeling the impact but no history of her hitting her head. She denied any head injury or loss of consciousness to Medical Assessor Samuel and Medical Assessor Williams.
The claimant was not taken to hospital and attended her GP the day after the accident complaining of left arm pain and nausea when turning her head.
While the claimant’s head may have come into contact with the headrest as a result of the collision, the Panel is not satisfied that the mechanism of this accident caused any significant head injury or structural injury to the brain.
When the totality of the evidence is considered, the Panel is not satisfied that there is any impairment as a result of any direct injury to the claimant’s head in this accident.

Did the claimant injure her neck in the accident?

The claimant’s claim form alleged an injury to her neck. Dr Islam, the claimant’s long-term GP completed a medical certificate which included “neck pain”.
The claimant has been investigated by Dr Cordato and treated by him and others (including physiotherapists) for musculoligamentous symptoms in her neck and shoulder.
The Panel is satisfied that the claimant did injure her neck in the accident and that this injury was a musculoligamentous injury which is still causing symptoms.

Was the vertebral dissection caused by the accident?

The Panel takes particular note of the early post-accident records of the Blue Cross Medical Centre in particular the following entries:
(a) 29 November 2018 – “MVA last night. Got L arm pain today, feeling nauseous when turning her head, unable to eat came in for a script Reason for contact: Dizziness”, and
(b) 3 December 2018 – “pain back of the head, pressure in ears. Feeling dizzy when extending her neck feeling sleepy sore neck sore shoulder left side Examination: tender left side of the neck, [range of movement] cause pain, tender left trapezius”.
The claimant was referred within four weeks of the accident to Dr Cordato due to ongoing dizziness, vertigo and headaches since the accident. After appropriate and necessary testing, the claimant was diagnosed with a probable left vertebral artery dissection at the C3 level. The Medical Assessors have viewed the imaging and agree that it shows a probable left vertebral arterial dissection.
The fact that characteristic symptoms of vertebral artery dissection presented so soon after the accident argues strongly in favour of a causal connection by way of vertebral artery dissection rather than the onset of these symptoms being due to unrelated atheroma for which in any case there is very little evidence elsewhere in the visualized cervical arterial system.
This conclusion is supported by the records of her GP the morning after the accident when Mrs Kacarova presented with nausea and dizziness on turning her head and by her GP’s prescription of Stemetil for these symptoms. The Panel notes the claimant has given a consistent history to a number of doctors (including Professor Fagan) of vomiting on the night after the accident and feeling nauseous.
While vertebral artery dissection is not a particularly common occurrence after a motor accident, it is a well-recognised consequence that is by no means exceptionally rare.[28] The clinical judgment of the medical members of the Panel is that the claimant’s left vertebral artery dissection resulted in a nervous system injury, related to the neck injury and was caused by the accident.
[28] The medical members of the Panel note that dissection is sufficiently common for CTA to be a pretty routine screening procedure in many Emergency departments following whiplash type injuries/headaches after car accidents.
The medical members of the Panel note that the more common symptoms of vertebral artery dissection include ataxia (trouble with balance or co-ordination), dizziness, hearing loss, double vision, neck pain (sometimes ipsilateral), severe headaches, slurred speech (dysarthria), vomiting, “drop attacks”, and vertigo. Other symptoms may relate to various pathways in the brainstem supplied by the vertebrobasilar arterial system.
The medical members of the Panel note that a complete partial or total loss of sense of smell is not a recognized common association of vertebral artery dissection, as the olfactory nerves and frontal cortex areas for registering smell are normally supplied by the anterior cerebral circulation.
In summary, Mrs Kacarova has consistently complained of “dizziness”, neck pain and severe headaches which supports the diagnosis of vertebral artery dissection as does the history of vomiting immediately after the accident and nausea for weeks if not months after the accident. Both intermittent true vertigo and pre-syncope with “drop attacks” (both of which may be described as “dizziness”) can be episodic features of vertebral artery pathology when symptoms are initiated by head movement.
The nature of the injury to the neck therefore is:
(a) a musculoligamentous injury to the cervical spine, and
(b) the dissection of the left vertebral artery at or near the C3 level.

WHAT IS THE IMPAIRMENT RESULTING FROM THESE INJURIES?

Musculoskeletal

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions: cervical, thoracic and lumbosacral. In the case of Ms Kacarova only the cervical region is to be assessed.
There are five diagnostic related categories and a number of indicia provided (see Table 6.7 in the Guidelines). In Mrs Kacarova’s case DRE category I, II and II are relevant.
The first is DRE category I which is selected if there are symptoms which may include pain. Mrs Kacarova clearly satisfied category I as she continues to complain of neck symptoms including pain and restriction of neck movement.
DRE II requires:
(a)    pain with guarding – there was no guarding when examined by Medical Assessor Fitzsimons;
(b)    non-uniform range of motion (dysmetria) – there was asymmetry of movement in that right-sided movements were full whereas left sided movements were reduced by half. In additional forward flexion was full while extension was restricted by half;
(c)    non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling) – Mrs Kacarova complained to Medical Assessor Fitzsimons of pain extending from her neck to her left shoulder and into the third and fourth fingers, 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. In Mrs Kacarova’s case her radiology and nerve conduction studies suggest a possible C6 and C7 nerve root issue however the Panel notes that para 6.142 Motor Accident Guidelines provides that diagnosis of radiculopathy should not depend solely on electrophysiological studies. In the light of the finding of dysmetria, it is not necessary to consider this further.
DRE III requires radiculopathy which is defined in cl 6.138 as the dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination:
(a)    loss or asymmetry of reflexes;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/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.

In this case, testing by Medical Assessor Fitzsimons revealed no loss of reflexes, no atrophy, no weakness and no reproducible sensory loss. The claimant does not satisfy the criteria of radiculopathy within the meaning cl 6.138 of the Guidelines and therefore does not have a DRE category III neck impairment.
Mrs Kacarova satisfies the requirements of a DRE category II which results in a 5% impairment. The Panel notes that other examiners including the claimant’s expert Dr Bodel have assessed the claimant’s neck injury as DRE category II.

Vertebral artery dissection

When Mrs Kacarova turns her head, this is likely on occasions to interrupt blood flow from the dissected vertebral artery to the brain and the Medical Assessors are of the view that this plausibly explains the claimant’s episodes which she describes as dizziness. This dizziness now has salient features of “drop attacks”, given their unpredictable and sudden onset and the reported transient loss of consciousness (with or without preceding brain “dizziness - blurriness”) without a commonly present sense of rotation. Such “drop attacks” are a well-recognized feature of vertebrobasilar insufficiency. The Panel accepts that the claimant’s episodic “dizziness” is therefore related to her accident-caused injuries and is producing an impairment.
In coming to this conclusion, the medical assessors do not entirely discount the possibility that some of Mrs Kacarova’s earlier symptoms, including those of vertigo, may have been due to random emboli from a jagged dissection, rather than being just due to vertebrobasilar arterial insufficiency. The medical assessors are of the view that vertebrobasilar insufficiency is more likely for the reasons given above, including the fact that the vertebral artery stenosis was reported as over 90% and over a length of 8 mm. The reason the claimant was prescribed Cartia (aspirin, which she continues to take) and Persantin was to prevent brain thrombosis secondary to any emboli. Given the facts taken together, the distinction between symptoms due to emboli from the vertebral artery or vertebrobasilar insufficiency is ultimately immaterial to determination of this Certificate. Either might result in different symptoms in the supplied areas of brain at different times.
The claimant does not have a frank or direct injury to her spinal cord or brain, but she does have an impairment to her central nervous system as a result of the dissected left vertebral artery.
Clause 6.161 of the Guidelines provides that “…section 4.3 ‘Spinal cord’ must be used for motor or sensory impairments caused by a central nervous system lesion.”
Impairment then is assessed in accordance with section 4.3 of chapter 4 of AMA 4 Guides. Clause 6.161 says that impairment assessed using section 4.3 should be combined with the associated DRE from chapter 3. In the circumstances of Mrs Kacarova’s case, section 4.3a - station and gait is relevant.
The claimant was adamant the falls she has had since the accident are unrelated to her known pre-existing lower limb and back complaints and that the falls have been present since the accident. When challenged on this she expressed surprise that the GP notes and Dr Cordato’s notes do not record any falls at all. There is no doubt that the claimant has complained consistently since the accident of dizziness and that this “dizziness” – however categorised has affected her ability to stand (she hangs on to furniture), mobility (she relies on the shopping trolley when walking) and stairs (she has moved her living quarters from upstairs to downstairs).
It is the clinical judgment of the medical members of the Panel that, on the basis of her dizziness, the claimant’s station and gait impairment should be assessed using the first criteria, “Patient can rise to a standing position and can walk but has difficulty with elevation, grades, stairs, deep chairs and walking long distances.”
The Panel notes a range of 1-9% is provided and that clause 6.163 provides:
“The 'Nervous system' Chapter of the AMA 4 Guides lists many impairments where the range for the associated WPI is from 0% to 9% or 0% to 14%. Where there is a range of impairment percentages listed, the medical assessor must nominate an impairment percentage based on the complete clinical circumstances revealed during the examination and provide reasons.”
It is the clinical judgment of the medical members of the panel that while the reported effect of the claimant’s dizziness on her activities of daily living is great, the claimant has other mobility issues including pre-existing knee and back conditions which may also be affecting the claimant’s ability to stand and mobilise. For that reason, while the Panel is satisfied that the claimant’s accident-related injuries have caused an impairment to her station and gait, that impairment should be assessed at 5%.
The claimant complained to Medical Assessor Fitzsimons (and on at least one occasion to Dr Cordato) of “momentary loss of consciousness associated with sudden falls.” The dissected artery and resultant occlusion could also be responsible for these transient episodes of altered consciousness.
There is no report in the GP notes of a loss of consciousness associated with sudden falls and the Panel notes the first report of a complaint of loss of consciousness appears in Dr Cordato’s letter to Dr Islam on 16 June 2021. The medical members of the Panel are of the view that it is unlikely two treatment providers would fail to record such a significant complaint as losing consciousness and falling in their notes and reports if such episodes had occurred before 16 June 2021.
The Panel therefore accepts that the claimant developed a sense of episodic brain “blurring” with or without brief loss of consciousness in early to mid-2021.
The Panel is not convinced that the documentary evidence points to experiences of any loss of consciousness associated with falls before mid-2021. Dr O’Sullivan did not consider her complaints were a true vertigo and recorded that her head felt much better when she lay down. He also referenced Dr Cordato’s report of a sudden fall in June 2021 without loss of consciousness. Many of the reports of “dizziness” before June 2021 do not refer to vertiginous features.
The medical members of the Panel note that these transient episodes of loss of consciousness since mid-2021 would support a diagnosis of drop attacks due to vertebrobasilar insufficiency. “Drop attacks” like faints due to acutely impaired brain circulation and brain “fogginess” may not necessarily be associated with recognised brief loss of consciousness, although they often are. However, noting the delayed onset of this symptom and in the absence of treatment records after mid-2021, the Panel is cautious about making a categoric diagnosis at this time.
If the claimant is experiencing drop attacks due to vertebrobasilar insufficiency, the impairment associated with this would be assessed under chapter 4 of AMA 4 Guides in particular 4.1d “Permanent Disturbances in Level of Consciousness and Awareness” and Table 4 or 4.1e “Episodic Neurological Disorders” and table 5. If the Panel were prepared to assess impairment in accordance with either of those tables the Panel would note that a range of 0-14% WPI is suggested for the appropriate criteria. The Panel notes the claimant says she has moved her bedroom from upstairs to downstairs, installed a bathroom downstairs to assist her living arrangements and has reduced her outings in order to minimise her risk of falls whilst unconscious. The Panel considers this would attract an impairment in the order of at least 8%.
The Panel also notes that the term “dizziness” is a broad and general term, which can be used by patients and doctors under different clinical circumstances to denote quite different specific (or non-specific) clinical symptoms. For instance, it can connote a sense of whirling rotation (or “vertigo”) due to either peripheral vestibular or central brainstem pathology. It can also be used to describe a sense of “light-headedness” with an impending fall (for instance, when blood pressure drops suddenly), or with an impending “drop attack”. Either or both of these symptoms can occur with vertebrobasilar insufficiency, as with vertebral artery dissection – or indeed with emboli from a vertebral artery dissection. Either can cause falls.
It is notable that the earlier “dizziness” with which Mrs Kacarova presented was most characteristic of vertigo, whereas what she described to Medical Assessor Fitzsimons is more characteristic of dizziness preceding “drop attacks” with falling. This is consistent with the opinion of Dr O’Sullivan who concluded that “on specific questioning, this (dizziness) is not true vertigo” and who concluded that the claimant’s station and gait disorder was due to her left vertebral artery dissection.
The Panel also notes that Medical Assessor Williams found no vestibular dysfunction and no impairment due to disorders of equilibrium during the course of his assessment of the claimant’s ear, nose and throat structures. He found no loss of the sense of taste and while there was impairment to the sense of smell he found this was not due to the car accident. His findings were made on the basis he was not satisfied there was evidence of a head injury at the time of the accident which was in turn based on the history given by the claimant that she sustained no head trauma in the accident.
This is not inconsistent with the Panel’s finding of neurological symptoms due to impairment of blood flow to the brain caused by the dissection of the vertebral artery.
For completeness the Panel notes that clause 6.162 provides that headache is to be assessed as part of the impairment related to a specific structure. In this case Mrs Kacarova complains of headaches which form part of the assessment of the cervical spine (if they are cervicogenic headaches) or as part of the central nervous system lesion (if they relate to the vertebral dissection injury).

Left shoulder

The claimant could have sustained a frank or primary left shoulder injury in the accident, causing impairment or an impairment related to her neck injury.
The claimant has had no left shoulder imaging that she can recall and has complained of left shoulder symptoms since the accident (and it was included in her claim form). The Panel notes her history to Medical Assessor Fitzsimons of the seat belt wrapping around her neck and observes that the claimant was a passenger where the seat belt would have been going over her shoulder. It is the clinical judgment of the medical members of the Panel that a

T-bone collision could have caused the claimant to hit her left shoulder on the inside door or some other part of the car. In the absence of any radiology, the Panel is reluctant to make a finding of a specific or frank injury to the left shoulder.
The Panel notes the claimant has had a predominantly left cervical spine injury and this could also explain restriction of shoulder motion. If any impairment to the shoulders 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[29] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[29] [2011] NSWSC 351.
The claimant has consistently complained of left shoulder symptoms and has had her left shoulder restriction of motion considered by other examiners. The Panel is satisfied that the claimant does have a left shoulder impairment related to either a left shoulder or neck injury caused by the accident.

How should left shoulder impairment be assessed?

On the measurements undertaken by Medical Assessor Fitzsimons, the claimant’s current left shoulder upper extremity impairment is 10% which translates to 6% WPI. While this is a greater impairment than when examined by Medical Assessor Cameron (3%), it is not as great as when she was examined by Dr Bodel (8%).
However Medical Assessor Fitzsimons found restricted shoulder motion in the uninjured right shoulder which no other examiner has found. Both Medical Assessor Cameron and Dr Bodel recorded normal range of motion in the right shoulder. The claimant did not report an injury to the right shoulder as a result of the accident or since the accident. It is likely that, at the age of 73, she could well have some degenerative changes in the shoulder joint which is causing her range of motion to be less that that specified in the AMA 4 Guides as “normal”.
This has raised for the Panel an issue of whether the current degree of impairment in the injured left shoulder is solely due to the injury sustained in the car accident or whether there is a non accident-related cause to explain the deterioration in the left shoulder from when the claimant was examined by Medical Assessor Cameron as this deterioration may now possibly be mirrored in the right uninjured shoulder.
Clause 6.51 of the Guidelines says:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline, and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.
The Panel is of the view that, in the absence of any radiology of the left shoulder (and the right) and bearing in mind the claimant’s age, the Panel should use the uninjured right shoulder as a baseline measure.
The Panel is therefore of the view that in accordance with cl 6.52, the right upper extremity impairment (UEI) of 5% should be deducted from the left UEI of 10% to give a 5% UEI which, using Table 3 at page 20 of AMA 4 Guides corresponds to a 3% WPI.

CONCLUSION

The Panel is satisfied that the claimant has a WPI that is greater than 10% on the basis of the following:
(a)    neck – DRE II  5% WPI
(b)    vertebral artery dissection (station and gait)         6% WPI
(c)    left upper extremity (shoulder)  3% WPI
Total  14%.
The Panel has not included within the impairment assessment any impairment in respect of any episodic loss of consciousness or any injury to any other part of the claimant’s body caused by any falls since the accident due to any episodic loss of consciousness.
As the Panel has come to a different conclusion to Medical Assessor Cameron, it follows that his certificate should be revoked, and a new certificate issued.

Attachment A - shoulder motion comparison table

Right Shoulder	Normal	Dr Bodel March 21	Medical Assessor Cameron March 22	Review Panel July 23
Flexion	180	180	Normal (180)	140 - 3% UEI
Extension	50	50	Normal (50)	50 - 0% UEI
Abduction	180	180	Normal (180)	150 - 1% UEI
Adduction	50	50	Normal (50)	30 - 1% UEI
Internal rotation	90	90	Normal (90)	90 - 0% UEI
External rotation	90	90	Normal (90)	90 - 0% UEI
Total upper extremity impairment		0	0	5% UEI 3% WPI

Left Shoulder	Normal	Dr Bodel March 21	Medical Assessor Cameron March 22	Review Panel July 23
Flexion	180	120 – 4%	140 – 3%	130 -3%
Extension	50	30 – 1%	40 – 1%	40 – 1%
Abduction	180	90 – 4%	150 – 1%	130 – 2%
Adduction	50	10 – 1%	40 – 0%	20 – 1%
Internal rotation	90	50 – 2%	80 – 0%	50 – 2%
External rotation	90	50 – 1%	80 – 0%	50 – 1%
Total upper extremity impairment		13% UEI = 8% WPI	5% UEI = 3% WPI	10% UEI = 6% WPI

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	130°
Extension	60°	40°
Adduction	30°	20°
Abduction	150°	130°
Internal Rotation	90°	50°
External Rotation	90°	50°

[2023] NSWPICMP 397

17 August 2023