Karroum v Allianz Australia Insurance Limited
[2024] NSWPICMP 91
•22 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Karroum v Allianz Australia Insurance Limited [2024] NSWPICMP 91 |
| CLAIMANT: | Leyal Karroum |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant suffered injury in a motor accident on 28 December 2019 when her vehicle was rear-ended by the insured taxi cab; dispute about the assessment of permanent impairment to the cervical spine, lumbar spine, right shoulder and left shoulder; claimant re-examined by Review Panel; where the Review Panel found that there was no initial injury to left shoulder but a consequential injury as a result of overuse of left upper extremity; pressure effect from the weight of sling on left brachial plexus region following two surgeries to the right shoulder; where the Review Panel found that the combined assessment of all body parts assessed was the same as found in the original assessment (9%); where the original assessment had to be revoked on the basis that the Review Panel made different findings on each individual body part assessed; Held – original assessment of 9% revoked and replacement certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 13 March 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10% (9%): · cervical spine; · lumbar spine; · right shoulder, and · consequential injury to left shoulder. |
STATEMENT OF REASONS
BACKGROUND
On 28 December 2019, the claimant, Leyal Karroum, was injured in a motor accident when her vehicle was rear-ended by a taxicab insured by Allianz.
The claimant claimed that in the accident, she sustained injuries to her cervical spine, lumbar spine, right shoulder and left shoulder.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of her claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for her injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Alan Home for assessment.
On 13 March 2023, the Medical Assessor issued a certificate finding that the following injuries were caused by the accident:
· cervical spine;
· lumbar spine, and
· right shoulder.
The Medical Assessor certified that the injuries gave rise to a permanent impairment of 9%.
The Medical Assessor found that the motor accident did not cause an injury to the left shoulder.
THE REVIEW APPLICATION
On 11 April 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. It appears that the Medical Assessor’s certificate was issued to the parties on 14 March 2023. Consequently, the review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Chris Oates, Medical Assessor Les Barnsley and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three medical assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor noted that there was early documentation of neck and back pain and pain in the right shoulder and that the mechanism of the accident was consistent with causing whiplash injury to the cervical spine, lumbar spine and the right shoulder.
The Medical Assessor found that there was no injury to the left shoulder caused by the accident because there was no complaint of left shoulder pain noted in the medical records after the accident and the claimant did not complain of left shoulder pain at the assessment.
As previously indicated, the Medical Assessor assessed the injuries caused by the motor accident as giving rise to a permanent impairment of 9%. In making this finding, the Medical Assessor attributed a WPI of 5% to the cervical spine, 4% to the right shoulder injury, and 0% to the lumbar spine injury.
MATERIAL BEFORE THE PANEL
The Panel considered the material filed by the parties. The claimant submitted a paginated and indexed bundle of documents comprising of 340 pages and the insurer submitted a paginated and indexed bundle of documents comprising of 1,263 pages.
There were no additional documents submitted by either party.
SUBMISSIONS
Claimant’s submissions
In submissions to the President’s delegate in the review application and in submissions to the Medical Assessor in the application for a medical assessment, it was indicated that in the motor accident, the claimant sustained injuries to her neck, low back and right shoulder, with radicular symptoms to her upper and lower limbs.
The Panel notes that there was no reference to the left shoulder in those submissions although an injury to the left shoulder was referred for assessment and the Medical Assessor found that there was no injury to the left shoulder caused by the accident.
It was pointed out that on 9 December 2014, the claimant complained of some neck and back pain, but the pain resolved. There were no further consultations with Dr Letran until after the accident when there were complaints of severe neck and lower back pain with radicular symptoms in the upper and lower limbs and severe pain in the right shoulder. Accordingly, it was submitted that the claimant’s neck and back problems are causally related to the accident.
The Panel was referred to the MRI scan of the lumbosacral spine and the cervical spine of 28 February 2020 which noted a history of lumbar radiculopathy and identified disc bulges at the L3/4, L4/5 and L5/S1 levels of the lumbar spine.
The claimant submitted that the reference in the report of Associate Professor Paoloni dated 16 April 2020, that the claimant has “right sided lateral distal pain referral from the lumbar spine and right foot paraesthesia” is consistent with lumbar radiculopathy.
The claimant submitted that the Medical Assessor erred in assessing the claimant with a WPI of 0% when there was a history of non-verifiable lumbar spine radiculopathy.
Insurer’s submissions
The insurer submitted that the report of Associate Professor Paoloni does not support a finding of radiculopathy. In particular, while Associate Professor Paoloni recorded subjective complaints of “occasional” ulnar digital paraesthesia and right foot paraesthesia, he found that “upper and lower limb neurological examination is normal”.
The insurer submitted in any event, the Medical Assessor was entitled to his own opinion, including an independent assessment of the claimant and all the evidence available to him at the time of the assessment and the claimant’s self-reporting.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel that relates to the matters under review, may conveniently be summarised as follows.
Pre-accident records
According to the records of Wilson Road Medical Clinic, the claimant consulted a general practitioner (GP), Dr Tan Letran on 9 December 2014 with the following history:
“neck and back pain for
2 week [sic]work 2 jobs - Home care.”[9][9] Page 736 of the insurer’s bundle.
Dr Letran requested an X-ray of the cervical, thoracic and lumbar spine which was performed on 11 December 2014. The imaging showed that there was no significant scoliosis or other abnormalities of the cervical, thoracic or lumbar spine and that no disc pathology was demonstrated.[10]
[10]Page 557 of the insurer’s bundle.
According to the clinical records of the Wilson Road Medical Clinic[11] and the other material before the Panel, there is no evidence of any further complaints made or treatment sought by the claimant for her neck and back until after the subject accident.
Post-accident records
[11]Page 736 of the insurer’s bundle.
Clinical records of The Valley Medical Centre, Green Valley
Three days after the accident on 31 December 2019, the claimant consulted GP, Dr Michael Soraine at this general medical practice. Dr Soraine recorded the following:
“[The claimant] has had car accident on saturday [sic] 28.12.2019, she was driver, did not go to hospital
having right shoulder pain and lower back pain-her right shoulder much worse
sevre [sic] tenderness right shoulder, with severe restrictions in movements in all directionsadvise brufen-arrange xr and us then review.”[12][12] Page 22 of the claimant’s bundle.
The claimant’s statement
In her personal injury claim form dated 29 January 2020, the claimant described her injuries as follows:
“…cervical whiplash/lumbar spine syndrome/right shoulder impingement syndrome”.[13]
[13] Page 28 of the claimant’s bundle.
Clinical records of Wilson Road Medical Clinic, Green Valley
In a certificate of fitness issued on 28 January 2020, Dr Letran recorded his diagnosis in the following terms:
“Cervical Whiplash/Lumbar spine Pain Syndrom/Right Shoulder Impingement Syndrome”.[14]
[14] Page 32 of the claimant’s bundle.
The clinical records revealed numerous follow-up treatment visits by the claimant with Dr Letran for her injuries to the neck, back and right shoulder during the period from February 2020 to February 2023. There was no evidence of any complaints by the claimant about the left shoulder.[15]
[15] Pages 151-197 of the claimant’s bundle, pp 150-791, pp 959-1056 of the insurer’s bundle.
Prime Physiotherapy records
In the Allied health recovery request dated 6 February 2020, physiotherapist, Ms Jamie Chen reported that on assessment, the claimant reported and was observed to have:
“Constant right neck, shoulder and upper back pain
Frequent tension headaches and migraine
Occasional lower back pain, reduced walking/standing tolerance ~10-15 minutes
Cervical spine rotation R= 40 degrees, L= 50 degrees, Limited by right neck pain
Right shoulder flexion/abduction 50 degrees, limited by right shoulder pain
Right shoulder internal rotation (hand-behind-back) significant limited, unable to reach bra strap. Limited by right shoulder pain.
Lumbar spine movements moderately restricted in all directions.”[16]
The evidence shows that the claimant continued to receive physiotherapy treatment for the neck, right shoulder and lower back from Ms Chen until about 28 May 2020.[17]
[16] Page 26 of the insurer’s bundle.
[17] Page 33 of the insurer’s bundle.
The first reference to any problems with the left shoulder after the accident, appeared in a report from physiotherapist, Ms Chantelle Buck, dated 14 February 2022. In that report, Ms Buck recorded the following:
“[the claimant] last attended physiotherapy on 11/02/22.
Her right sided shoulder function has been slow to progress, which I believe is complicated by the onset of left sided radicular pain affecting the cervical spine and left shoulder.”[18]
[18] Page 139 of the insurer’s bundle.
Associate Professor Justin Paoloni
In April 2020, the claimant was referred to sports physician, Associate Professor Justin Paoloni for further treatment of her neck, right shoulder and lumbar back.
The Panel has reviewed various reports issued by Associate Professor Paoloni on 16 April 2020, 7 and 27 May 2020, 11 and 18 June 2020, 14 July 2020 and 18 July 2020 regarding treatment given to the claimant.[19]
[19] Pages 101-111 of the claimant’s bundle.
In his first report dated 16 April 2020, he noted the claimant’s primary problem was right lateral shoulder pain. The claimant had occasional digital paraesthesia and peri-scapular pain, right lateral distal pain referral from the lumbar spine and right foot paraesthesia.[20]
[20] Page 79 of the claimant’s bundle.
The claimant was treated with a series of Platelet-rich plasma (PRP) injections for right shoulder pain and a Traumeel injection for lumbar back pain.[21]
[21] Page 79 of the claimant’s bundle.
In his report to Dr Letran on 14 July 2020, he noted that the claimant’s right shoulder pain remained unchanged despite the PRP injections. The claimant had some improvement in central lumbar back pain but continued to have lumbar back spasm.[22]
[22] Page 87 of the claimant’s bundle.
Associate Professor Paoloni recommended that the claimant be referred to an orthopaedic shoulder surgeon for further treatment.[23]
[23] Page 87 of the claimant’s bundle.
Dr David Lieu
The claimant was referred to orthopaedic surgeon, Dr David Lieu for treatment of her right shoulder pain in November 2020.
The Panel has reviewed various reports issued by Dr Lieu dated 27 November 2020, 20 January 2021, 10, 11 and 26 March 2021, 23 April 2021, 4 June 2021, 16 and 28 July 2021, 17 August 2021, 1 September 2021, 20 October 2021, 14 December 2021 and 25 March 2022, regarding treatment given to the claimant and the operations he performed.[24]
[24] Pages 114-135 of the claimant’s bundle.
On 11 March 2021, Dr Lieu performed a right arthroscopic subacromial decompression procedure, excision of calcific deposit and rotator cuff repair. The findings during the operation were a large calcific deposit posterior supraspinatus and subacromial impingement.[25]
[25] Page 1,216 of the insurer’s bundle.
On 17 August 2021, Dr Lieu performed a further operation by way of right shoulder arthroscopy and removal of a loose screw.[26]
[26] Page 1,241 of the insurer’s bundle.
Medico-legal evidence
Dr Jonathan Herald, orthopaedic surgeon was qualified by the claimant. He provided a report on 11 April 2022.
Dr Herald’s assessment was a C5/6 disc prolapse with left C6 radiculopathic symptoms to the left upper limb, a soft tissue injury to the lumbar spine with non-verifiable radicular complaints to the left leg and a right shoulder aggravation of underlying calcific tendinitis with subsequent bursitis and requirement for subacromial decompression.[27]
[27] Page 58 of the claimant’s bundle.
Dr Herald assessed the lumbar and cervical spine as DRE Category II with no deductions for any pre-existing conditions resulting in a WPI of 5% each of the lumbar and cervical spines. He assessed the right shoulder as giving rise to a WPI of 6% resulting in a combined WPI of 15% on the Combined Values Chart.[28]
[28] Page 60 of the claimant’s bundle.
Dr Thomas Rosenthal, occupational physician was qualified by the insurer. He provided a report on 9 May 2022.
At the examination on 2 May 2022, the claimant complained of being very stiff in the right shoulder with additional pain at the back of the neck radiating into the left arm.
The claimant reported to Dr Rosenthal that her left arm symptoms commenced after the first surgical procedure and that she gets numbness in the middle ring and little fingers of her left hand.
The claimant reported to Dr Rosenthal that she had an MRI done of her cervical spine and that she had C6 impingement which was being managed by Dr Lieu.[29]
[29] Page 141 of the insurer’s bundle.
Dr Rosenthal recorded that the claimant reported that “her left shoulder is ok.”[30]
[30] Page 141 of the insurer’s bundle.
Dr Rosenthal was of the opinion that the claimant had sustained a soft tissue injury to the neck, a possible soft tissue injury to the lumbar spine and a soft tissue injury to the right shoulder with surgery for internal derangement.
Dr Rosenthal believed that the claimant does not have a C5/6 disc injury or radiculopathy caused by the motor accident.
Dr Rosenthal believed that at the time of the examination in May 2022, there may have been continuing internal derangement at the right shoulder but the soft tissue injuries to the neck and back should have resolved.
Dr Rosenthal assessed upper extremity impairment (right shoulder) at 9% which converted to a WPI of 5%.
RE-EXAMINATION FINDINGS
On 31 October 2023, the claimant was re-examined by Medical Assessor Barnsley and Medical Assessor Oates at the medical suites of the Commission. The claimant attended in person and unaccompanied.
Relevant personal details
The claimant is a single mother to two daughters. Prior to the accident, she was working as a childcare assistant on a casual basis 40 hours per week and had done this work for about two years before the accident. She has not been able to return to work since the accident. She is on a supporting parents benefit and she is in receipt of weekly payments of statutory benefits from the insurer.
Pre-accident medical history
The claimant said she had had soreness in the lower back about five or six years before the motor accident but there was no associated leg pain. She saw her GP. She had some conservative treatment and the condition resolved.
The claimant said she had no previous problems with the neck or shoulders.
In the past, she has had Diabex for insulin resistance.
History of the motor accident
The claimant said on 28 December 2019, she was the driver of a Toyota Echo hatchback with her two daughters who were aged 9 and 11, travelling in the back seat. Her vehicle was stationary at a red light, first in the line of traffic when it was hit from behind by a following large sedan. Her vehicle moved about one metre forward but there was no further impact.
The claimant said she panicked and called out for help. She blew the horn to alert relatives who were ahead of her in the traffic. She does not recall any impact injury and had her hands on the steering wheel at the time of impact. She had a sore chest from the seatbelt tensioning. Her vehicle was written off. No police or ambulance attended.
History of symptoms and treatment following the motor accident
The claimant said she had some chest soreness and pain that night in her neck. She took Panadol. She was worse the next day. She saw a GP, Dr Soraine on 31 December 2019 at Green Valley Plaza because her usual GP was on Christmas holidays. She recalls being sent for an X-ray, which she thinks was of her neck.
The claimant said she then saw her usual GP, Dr Letran, on 28 January 2020. She was complaining of neck pain and headaches, with radiation of pain to the right shoulder. She said the left side was okay. She had no back problems at the time.
Dr Letran ordered an X-ray and ultrasound of the right shoulder and an X-ray of the cervical spine and these were done on 3 February 2020. She was treated with medications including Celebrex and had physiotherapy. She was referred to Associate Professor Paoloni, sports physician, and he administered PRP injections.
The claimant stated the low back pain started about a month or so after the motor accident. She had an MRI scan of the lumbar spine on 28 February 2020. She had PRP injections to the neck, right shoulder and back but there was no benefit.
The claimant stated that she started getting a sensation of heat radiating from the right hip through the lateral right thigh and posterior right calf to the lateral three toes of the right foot with tingling in the toes. Associate Professor Paoloni then recommended she see a surgeon.
The claimant said that she was referred to Dr David Lieu regarding her right shoulder.
The claimant saw Dr Lieu on 27 November 2020. She had an MR arthrogram of the right shoulder on 9 December 2020. She had temporary relief from two cortisone injections to the right shoulder, which were done on 12 February 2020 and 2 March 2020. She had an MRI scan of the right shoulder.
The claimant said that Dr Lieu recommended surgery and on 11 March 2021, she had subacromial decompression and excision of calcific deposits and rotator cuff repair. Her right shoulder got worse after the operation, and she was found to have a loose fixation screw. She had more surgery on 17 August 2021 with arthroscopic removal of loose screw and her right shoulder started to improve after this.
She developed tingling in the left forearm from the elbow to the ulnar three fingers and this has been present since the first operation to the right shoulder. She put it down to having to use the left arm more when her right arm was rested in a sling for six weeks. The left arm symptoms became worse after the second right shoulder surgery, which also necessitated rest of the right arm in a sling for six weeks.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant stated that she had no subsequent injury after the motor accident and had no or relevant condition developed.
Current symptoms
The claimant said she has right-sided neck pain a few times a week, lasting for two to three hours at a time, radiating to the back of the head associated with headaches. It can come with sitting too long or lying down too long. She also has left-sided neck pain after the last episode of shoulder surgery. She has central low back pain which radiates up towards the scapulae and also downwards to the sacrum. It is present intermittently and worse with static standing, excessive walking, or walking up steps or up inclines. There is very rarely tingling in the right hip, through the lateral right thigh and calf, to the lateral right foot.
She has intermittent right shoulder pain present with everyday activities, such as vacuuming and hanging washing up. There is no left shoulder pain, however she feels tingling intermittently in the left arm from the elbow distally to the forearm and ulnar three fingers of the left hand.
The Panel examiners asked the claimant about Medical Assessor Home’s report of occasional paraesthesia in the lateral three toes of the left foot, and she said that she has never had symptoms in the left foot.
General presentation at the assessment
The claimant was of average build and sat comfortably whilst relating the history. She was able to move freely about the examination room and transferred freely out of a chair and on and off the examination couch.
Examination of the cervical spine (cervicothoracic)
There was tenderness over the upper trapezii bilaterally but no muscle guarding or muscle spasm.
Flexion was three-quarters of normal range, as was extension. Lateral flexion was two-thirds of normal bilaterally. Rotation was three-quarters of normal bilaterally.
Reflexes in the upper limbs were symmetrical. Power in the upper limb was normal. There was no atrophy of palmar muscles. Sensation was slightly decreased at the left thumb and left little finger in a non-dermatomal distribution. Power of abductor digiti minimi was normal.
Tinel’s sign was negative at the medial elbow over the left ulnar nerve. Sensation was intact in both forearms, apart from some slight reduction in the ulnar aspect of the left little finger and at the tip only of the left ring finger. This reported partial sensory loss did not follow a dermatomal pattern nor a peripheral nerve distribution.
Upper arm girth at 10cm above the elbow crease; right equals left equals 34cm. Forearm girth at 10cm below the elbow crease; right 26cm, left 25cm – consistent with stated right-hand dominance.
Examination of right and left shoulders
There was no wasting of deltoid, supraspinatus or infraspinatus visible.
Active range of movement was measured with a goniometer and repeated to check for consistency.
Shoulder movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
160°, 150°, 150°.
flexion 180°, 170°,
Extension
Extension 50°, 50°, 50°.
50°, 55°, 50°.
Abduction
130°, 140°, 130°.
170°, 170°, 170°.
Abduction
40°, 40°, 40°.
50°, 50°, 50°.
Internal Rotation
70°, 70°, 70°.
70°, 75°, 70°.
External Rotation
90°, 90°, 90°.
90°, 90°, 90°.
There were symptoms of impingement on rotation.
Examination of lumbar spine (lumbosacral)
Flexion and extension were full range. Lateral flexion was two-thirds of normal bilaterally. Rotation was two-thirds of normal bilaterally. There was tenderness over bilateral sacroiliac joint areas. There was no muscle guarding or spasm.
Supine straight leg raising 60° on the right with negative stretch test and 60° on the left with negative stretch test, but bilateral tight hamstrings.
Power right equals left. Sensation was normal bilaterally. Reflexes were all of low amplitude but symmetrical.
Thigh girths were 56cm on right and left at 10cm above superior patellar pole. Calf girths were 43.5cm on the right and left 43cm at 10cm below the inferior patellar pole.
Consistency of presentation
The claimant was consistent in her clinical presentation.
DIAGNOSIS AND CAUSATION
The diagnosis was cervical spine soft tissue injury. This was related to the accident as it is referred to in the claimant’s personal claim form on 29 January 2020, the GP clinical records from 31 December 2019 and the physiotherapy records from 6 February 2020.
There was a lumbar spine soft tissue injury related to the accident, which was also as it is referred to in the claimant’s personal claim form on 29 January 2020, the GP clinical records from 31 December 2019 and the physiotherapy records from 6 February 2020.
There was also right shoulder soft tissue injury consisting of subacromial bursitis and aggravation of a previously asymptomatic calcific tendinosis of the supraspinatus component of the rotator cuff. The right shoulder injury is related to the accident, as it is referred to in the claimant’s personal claim form on 29 January 2020, the GP clinical records from 31 December 2019 and the physiotherapy records from 6 February 2020.
There was no evidence that there was a direct left shoulder injury related to the motor accident.
There was a consequential soft tissue condition affecting the left upper extremity which is related to overuse of this part and a likely pressure effect from the weight of the sling on the left brachial plexus region, whilst the dominant right arm was immobilised in the sling for a six-week period following each of the two operations on the right shoulder.
The Panel examiners noted the previous history of calcific tendonitis of the right shoulder, which was shown on imaging, which represents a pre-existing constitutional condition. This was not previously symptomatic according to the history given by the claimant and there was no contradictory evidence before the Panel.
PERMANENT IMPAIRMENT
The Medical Assessors agreed that the descriptors present on examination of the cervical spine put the cervical spine into DRE Category I giving a WPI of 0%.
There was no dysmetria, no guarding and no non-verifiable radicular complaints. Furthermore, there was no radiculopathy to justify placement in a higher DRE category.
For the lumbar spine, the Medical Assessors agreed there were criteria present which would place the claimant in DRE Lumbosacral Category II giving a WPI of 5%.
There were non-verifiable radicular complaints which followed a right S1 nerve root distribution.
There was no evidence of radiculopathy to justify placement in a higher DRE category.
There was restricted active range of movement in the right shoulder, which was largely consistent on repeated examination.
160° of flexion gives 1% upper extremity impairment. 130° of abduction gives 2% upper extremity impairment. 70° internal rotation gives 2% upper extremity impairment. Adding these gives 5% upper extremity impairment, equivalent to 3% whole person impairment.
The left shoulder showed some slight restriction of active range of movement which results in an assessable impairment.
Internal rotation of 70° gives 1% upper extremity impairment, which is equivalent to a WPI of 1%.
As indicated above the reported sensory changes in the left hand do not attract an assessable permanent impairment because they do not constitute cervical radiculopathy nor peripheral nerve injury.
Combining 5% by 3% by 1% gives rise of WPI of 9%.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Oates and Medical Assessor Barnsley in relation to the injuries to the cervical spine, lumbar spine, right shoulder and a consequential injury to the left shoulder.
CONCLUSION
Although the total WPI assessed by the Panel is the same as the total WPI assessed by Medical Assessor Home, the Panel has reached different conclusions in their assessments of the WPI of the cervical spine, the lumbar spine and the right shoulder. Furthermore, the Panel has assessed a WPI for a consequential injury to the left shoulder.
Accordingly, the Panel revokes the certificate of the Medical Assessor and issues a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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