Kelly v AAI Limited t/as AAMI
[2022] NSWPICMP 39
•3 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kelly v AAI Limited t/as AAMI [2022] NSWPICMP 39 |
| CLAIMANT: | Michael Kelly |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL: | Principal Member Josephine Bamber Medical Assessor Alan Home Medical Assessor Thomas Rosenthal |
| DATE OF DECISION: | 3 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accidents Compensation Act 1999 (MAC Act); Medical Review Panel matter; claimant’s application for review pursuant to section 63 of the MAC Act in relation to assessment of whole person impairment (WPI) in relation to original assessment of 8% WPI; Held- Certificate revoked and WPI assessed at 2% upon re-examination of the claimant by the Panel’s Medical Assessors. |
Medical Assessment – Permanent Impairment
Review Panel Certificate
issued under Part 3.4 of the Motor Accidents Compensation Act 1999
following a review under section 63 as to
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%
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:
The Panel revokes the certificate dated 23 April 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:
· lumbar spine – soft tissue injury;
· cervical spine – soft tissue injury, and
· right shoulder – restricted motion secondary to neck pain.
BACKGROUND
Mr Michael Kelly suffered injury in a rear end motor accident on 27 November 2016, the details of which are set out later in these reasons.
AAI Limited t/as AAMI (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr Kelly any damages to which he may be entitled under the Motor Accidents Compensation 1999 (the MAC Act).
The parties are in dispute as to whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See s 58(1)(d) of the MAC Act.
The degree of permanent impairment is determined by making an assessment pursuant to Motor Accident Permanent Impairment Guidelines- Version 1, effective from 1 June 2018 (the Guidelines)[2]. The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[2] Issued pursuant to s 44(1)(c) of the MAC Act and see s 133 of the MAC Act.
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The medical assessment which is the subject of this review was conducted by Medical Assessor McGrath dated 23 April 2021. He found Mr Kelly has 8% whole person impairment (WPI) comprised of 0% WPI in relation to his cervical spine, 5% WPI for his lumbar spine and 3% WPI for his right shoulder.The application for referral of a medical assessment to a review panel was made on behalf of Mr Kelly within 28 days after the parties were issued with Medical Assessor McGrath’s certificate.[4]
[4] Section 63(7) of the MAC Act and see [3] of the claimant’s submissions noting the Medical Assessment Certificate was received by them on 22 June 2021 and the Application for Review was filed on 20 July 2021.
On 26 November 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as she was 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.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
CONDUCT OF THE REVIEW
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.[6]
[6] 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 and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
On 29 November 2021 the Panel issued a Direction to the parties requiring them to each file an indexed, paginated bundle of documents that they wished to rely upon in relation to the review. Mr Kelly’s documents were filed as AD2 and AD3 and the insurer’s as AD4. The Panel has considered the entirety of this material.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
On 13 December 2021 the Panel conducted a preliminary review of the matter and determined that a re-examination of Mr Kelly was required of all of the body parts referred for assessment, being the cervical spine, lumbar spine and right shoulder. The Panel advised the parties of this in a Direction issued by the Commission on 25 January 2022. In the Direction the Panel also advised the parties that the re-examination was to be conducted by both Medical Assessors of the Panel.
RE-EXAMINATION
The following re-examination report was prepared by the Panel’s Medical Assessors and has been adopted by the whole Panel.
Investigations:
· Right shoulder ultrasound, 15 December 2016 demonstrated an intact long headed biceps tendon with normal anatomical location. The subscapularis tendon is intact and demonstrates mild tendinosis. The supraspinatus tendon is intact with no tears and demonstrates mild insertional tendinosis. The overlying subacromial/subdeltoid bursa is mildly thickened, suggestive of bursitis. Infraspinatus tendon is intact and demonstrates normal echotexture. The AC joint is normal. No fracture is seen within the limitations of the ultrasound.
Conclusion: mild subscapularis and supraspinatus tendinosis without tear. Mild distension of the subacromial subdeltoid bursa suggestive of bursitis.
· MRI cervical spine, 12 May 2017. No abnormal marrow signal is detected. Vertebral body heights are preserved and there is normal vertebral body alignment. The prevertebral soft tissues are not thickened. Cervical spondylosis is present with mild central canal narrowing at C5/6 due to a posterior disc bulge seen in association with a posterior annulus tear. There is no cord compression, and no abnormal cord signal is seen to suggest the presence of cord oedema or haematoma. Neural foraminal narrowing is noted at a few levels on both sides, most significantly on the right at C5/6 with possible irritation of the right exiting C6 nerve root.
· CT lumbar spine, 4 June 2018. At L1/2, L2/3 and L3/4, no abnormality. At L4/5, a mild posterior disc bulge is noted at this level with abutment of both L5 nerve roots in the lateral recess without convincing evidence of impingement. At L5/S1, no significant disc bulge or impingement of the exiting nerve roots is noted.
· MRI scans lumbar spine, 7 March 2019. There is a normal alignment of the lumbar spine. The vertebral body and intervertebral disc heights are preserved. There is mild disc desiccation at L3/4. There is not disc protrusion and no canal or foraminal narrowing at any level to cause radiculopathy. There are very mild degenerative changes of the facet joints.
· Electrophysiological report of 4 June 2019 reported by Dr Wardman is reported as follows: There was no evidence of carpal tunnel syndrome in the present study. There may be bilateral mild ulnar neuropathy (fully localised) or reduced amplitude secondary to wear and tear. It is noted that C5/6 radiculopathy could not be excluded.
Review of medical documents
The Medical Certificate of Dr Tor dated 30 November 2016 refers to diagnosis or description of injuries as tenderness, right upper arm, tenderness limitation in relation to the right shoulder, pain and restricted range of motion of the lower back.
Personal Injury Claim Form, 7 December 2016 refers to complaints of neck pain, right shoulder pain, lower back pain, headaches, upper leg pain.
On 16 January 2017, Dr Tor certifies complaint of pain in the right side of the neck radiating to the right arm with ultrasound of the right shoulder reporting rotator cuff tendinosis at the subacromial bursa. An injection to the right shoulder was requested pending approval. MRI scan was requested to rule out cervical radiculopathy.
The report from Dr Tor dated 8 March 2017 refers to early clinical findings at 30 November 2016 of ongoing complaints of right-sided neck pain radiating down the right arm. Pain and restricted motion of the right shoulder.
The Medical Certificate of Dr Tor dated 19 May 2017 documents soft tissue injury to the neck, right shoulder and lower back.
The report of Dr Giblin dated 13 September 2017 documented complaints of right-sided neck pain associated with intermittent paraesthesia in the right arm and hand, pain and stiffness in the right shoulder. There is documented clinical findings of restricted right-sided spinal motion and mild restriction of elevation of the right shoulder. The panel note the attached Whole Person Impairment Assessment document dated 19 November 2019.
The report of Dr Tor dated 20 October 2017 refers to pain and restricted motion of the right shoulder and right-sided neck pain There is no mention of the lower back.
The report of Dr Darwish, 12 December 2017 refers to neck pain, pain in the right arm and paraesthesia in the right hand. At examination, there was record of decreased sensibility at the ulnar aspect of the right hand and the right C8 dermatome. Deep tendon reflexes symmetrically depressed. He recommended nerve conduction studies to exclude an ulnar neuropathy and a right C6 perineural cortisone injection.
The report of Dr Barold indicates that Mr Kelly developed lower back pain with radicular symptoms in the right upper leg since about December 2017 which he found was not causally related. In an attached Impairment Report, he opined DRE Category 2 impairment for the cervical spine and a 5% WPI rating for the right shoulder.
The patient health record from Rosemeadow Medical Centre and Happy Family Practice documents a motor vehicle accident recorded 30 November 2016. There is record of headache, pain in the right shoulder, and lower back. A diagnosis of soft tissue injury to the right shoulder and lower back was made. At review on 7 December 2016, there is record of right shoulder pain and pain radiating to the right arm. Careful review of the clinical notes reveals persisting complaints of neck and right shoulder pain on multiple presentations from late 2016 and continuing into 2020.[9] There is no further documentation of lower back pain.
[9] As set out in the claimant’s submissions pp 3-5 and insurer’s bundle pp 70-71.
The further record of lower back pain is in June 2018 where the doctor documents complaint of right-sided lower back pain radiating to the right buttock. CT scans of the lumbar spine were then requested.
The report of Dr Breit, 1 May 2018 refers to complaints of pain in the neck with radiating pain along the right arm, paraesthesia involving the middle, ring and little fingers and further complaints of occipital headache. There is documented pain in the lumbar region which is not constant radiating to the right hip but no leg pain. Occasional tingling in the lateral aspect of the right thigh.
The examination findings are noted by the Panel. There is restricted leg raise on the right, documented with complaint of back pain in the upper extremities, mild restriction of motion at the left shoulder, marked restriction of motion at the right shoulder and neurological findings of irritability at the ulnar nerve.
We note the Impairment Assessment of Dr Breit which indicates no impairment of either shoulder or lumbar spine and Category 2 impairment of the cervical spine based upon radicular type symptoms.
The report of Dr Darwish, 4 February 2019 now documents the onset of lower back pain radiating to the right buttocks since the accident of 2017 getting worse. At 18 June 2019, Dr Darwish documents a finding of MRI scans of March 2019 which have been considered by the panel. At review by Dr Darwish, on 8 July 2019, there is now documentation of the nerve conduction studies of 4 June 2019 showing minor bilateral neural ulnar neuropathy of sensory type. MRI scans of the lumbar spine were reviewed and interpreted as showing minor degenerative changes.
The report of Dr Keller dated 13 November 2019 documents no current physical symptoms but management of symptoms with intermittent Panadeine Forte. There were complaints of lower back pain developing in early 2017 and CT scan imaging in June 2018 with back pain occurring intermittently two to three days a week. Intermittent right arm pain lasting up to an hour, 8/10 on visual analogue scale (VAS) in intensity and migraines once or twice weekly with restricted capacity for activities of daily living. There was a full range of cervical spine motion demonstrated. There was reduced active motion with increased motion with gentle passive assistance to 140° with full internal and external rotation of the right shoulder. There was a full range of motion to the left shoulder. He documented a full range of symmetrical spinal motion without spasm. No abnormal neurological findings in the lower extremities. He found no assessable impairment.
The Panel found similar active right shoulder motion to that detailed by Dr Keller.
The Certificate of Assessor David Gorman, 12 March 2020 opined that the injuries caused by the motor vehicle accident gave rise to an impairment which is not yet permanent. He opined soft tissue injuries to the cervical spine, lumbar spine and right shoulder and at examination, he documented intermittent guarding, dysmetria and spasm in the cervical spine, restriction of motion at the right shoulder and restriction of motion at the lumbar spine. He found that the restricted motion at the lumbar spine was symmetrical. There is no guarding or muscle spasm.
These findings are similar to the findings at the current assessment. However, there was no finding of cervical dysmetria at the current assessment.
The Medical Assessment Certificate of Assessor McGrath, the subject of this review documented normal examination findings, normal neurological findings in the upper extremity, no measurable atrophy, normal power in the upper extremity, in the lumbar spine, asymmetrical range of motion in flexion and extension and lateral flexion with one-quarter flexion in the lumbar spinal segments with extension retained.
This contrasts with the examination findings at the current assessment where there is symmetrical restriction of spinal motion in the lumbar region. Assessor McGrath found no abnormality on neurological examination. Straight leg raise normal on both sides and normal deep tendon reflexes, power and sensation. There was mild restriction of active elevation of the right shoulder which is consistent with the clinical findings at this assessment.
The report of Dr Robert Breit dated 12 November 2021 indicated complaints of pain in the neck, right arm, lower back, anterior and posterior right thigh with anterior right thigh paraesthesia. He found negligible neck motion in any direction, negligible lumbar motion in any direction, thoracic rotation half normal range in both directions. There was normal leg raise in a long sitting position but marked restriction of leg raise on the right with marked back pain when examined supine. There was a finding of almost no internal rotation, only 10° of external rotation at the right shoulder with other motion markedly restricted. However, it was found that there was a greater range of motion to distraction.
He found that the clinical presentation was totally inconsistent and declined to assess permanent medical impairment on that basis.
Past history
Mr Kelly denies any prior history of neck, back or shoulder complaints. He reports that he has taken Metformin to manage diabetes since 2015. He states that his diabetes is well managed and well controlled with this regime, which is stable.
He lives with his mother and his daughters aged 8 and 7. He is a non-smoker.
Details of subject accident
On 27 November 2016, Mr Kelly was the unaccompanied seat belted driver of a Proton sedan, stationary at the intersection of Fitzgibbons Lane in Rosemeadow at the intersection of Appen Road when his vehicle was struck from behind by a four-wheel drive vehicle. He recalls that his vehicle was shunted forward two or three metres and sustained rear end damage. He was able to alight from the vehicle to exchange details with the other driver. He telephoned police, who did not attend. Ambulance did not attend. He was able to drive his vehicle to his home.
He recalls the onset of physical symptoms three-or four-days post-accident. At that stage, he recalls experiencing neck pain, pain in his right arm and pain in his lower back. He attended his general practitioner, Dr Tor. He was referred for physical therapy. He recalls the use of medications.
Physical therapy continued for eight sessions. He states that there was a later return to physical therapy in 2019 without much benefit.
He attended Dr Darwish. He underwent nerve conduction studies to assess his right arm symptoms.
There was discussion about injection to the cervical spine, but this was not funded and did not proceed. There have been no spinal or shoulder injections.
Mr Kelly confirms an increase in low back pain in mid-2018 leading on to CT scan imaging. There was no definitive treatment of his back condition.
Current treatment
He reports the current use of medications including Endep 10 mg nocte, Panadol Osteo four tablets daily. He ceased Lyrica due to unacceptable side effects.
Current symptoms
Mr Kelly reports current symptoms of intermittent neck pain present most of the day average intensity 7/10 on VAS. Pain is more severe on the right side of the neck. He describes difficulty turning his neck to the left when pain is more severe. There is occipital headache without associated symptoms.
There is complaint of intermittent right arm pain lasting for 5 to 10 minutes at a time. Pain extends along the post-axial border of the right arm and forearm extending to the ulnar border of the right hand. He describes intermittent paraesthesia along the ulnar forearm and intermittent paraesthesia in the medial three digits of the right hand.
He recalls an episode of giving way when he dropped a sandbag during the course of his work as a speed camera attendant several months after the accident.
In the lower back, he describes right-sided pain present most of the time. He describes the intensity of pain at 6/10 VAS. There is no exacerbation of pain with coughing and sneezing. There have been occasional episodes of bladder urgency but no other difficulty with micturition. There is no bowel disturbance.
He describes intermittent shooting pain along the back of the right thigh from the buttock to the knee but not below the knee. There is a complaint of intermittent paraesthesia at the medial border aspect of the right thigh above the knee. There are no distal symptoms.
Mr Kelly is right hand dominant. He describes a sitting tolerance of 30 to 45 minutes, a similar tolerance for driving. He reports a walking tolerance of 10-15 minutes.
Over the past month, he has taken to using a walking stick as he is concerned about falls. He has not fallen. Deep forward bending at the waist exacerbates his back pain and he avoids this. He says that he also experiences back pain with crouching. He climbs stairs asymmetrically using a handrail.
His sleep pattern is broken.
He says that he obtains assistance from his mother with dressing in socks and shoes. He is able to lift and carry five kgs in his left hand. He avoids lifting in his right.
He says that his mother performs all domestic chores. He is able to perform simple meal preparation, but his mother performs all of the cleaning. Shopping is undertaken online. He has not resumed previous active hobbies playing social cricket and soccer.
Vocational history
Mr Kelly commenced work as a speed camera operator in July 2016. Prior to that, he had worked as a store attendant at Coles and as a ticket checker for Transport New South Wales. Following the subject accident, he was off work for two months before resuming his duties. He said that he only worked for one day before he was retrenched.
He thereafter worked as an Uber driver three to four days weekly from mid-2017 until April 2021. He has since worked as a delivery driver for Menulog. He estimates that he now works four hours, three to four days weekly.
PHYSICAL EXAMINATION
Mr Kelly was examined by Medical Assessors Rosenthal and Home.
On examination, Mr Kelly is a 43-year-old, standing 173 centimetres, weighing 41kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature without muscle spasm. Active spinal motion is performed to one-quarter normal range in flexion and extension. Active motion is performed to one-quarter normal range in right and left rotation. Active motion is performed to one-quarter normal range in right and left lateral flexion. There is no dysmetria. There is no true muscle guarding.
Upper extremities
Neurological examination of the upper extremities reveals normal upper limb power throughout. The deep tendon reflexes are symmetrically preserved. There is normal sensibility throughout the upper extremities. There is no muscle wasting. There are no signs of nerve tension. There are no focal clinical signs of ulnar neuropathy.
Left shoulder
On examination of the left shoulder, there is no muscle wasting. Active motion is preserved, measured by goniometer methods as follows:
Shoulder Movements
Active ROM Measured
Left degrees (°)Flexion
170
Extension
50
Abduction
170
Adduction
50
External Rotation
90
Internal Rotation
90
Right shoulder
At the right shoulder, there is no muscle wasting. There is initial hesitancy of motion with Mr Kelly reporting neck pain with shoulder elevation above 70°. When examined in a supine position, he was able to place his hand on top of his head, virtually full shoulder abduction then measured at 140°, abduction also measured at 140° in this position. There is full active external and internal rotation demonstrated whist supine.
Accurate range of motion with consistency was not obtained, despite three repetitions using a goniometer. This was brought to Mr Kelly’s attention. When asked about the inconsistent motion, he advised that he restricts shoulder motion due to neck pain.
There is normal power of resisted movements across the rotator cuff. Impingement signs are negative.
Thoracolumbar spine
On examination of the thoracolumbar spine, there is normal spinal curvature without muscle spasm. Lumbar flexion and extension are performed to no more than one-quarter normal range and are symmetrically restricted in this fashion. Thoracic rotation are symmetrically performed to half normal range. Right and left lateral flexion are symmetrically performed to one quarter normal range. No true muscle guarding.
Straight leg raise is performed to 70° in a long sitting position but only 20° on the right in a supine position with indirect methods. There is straight leg raise to 70°, identical to the left side. Lasègue’s sign is negative.
Lower extremities
Examination of the lower extremities reveals normal lower limb power in all muscle groups. There is reduced sensibility in a small patch at the anterior aspect of the right mid-thigh which does not conform to any dermatomal pattern. Deep tendon reflexes are symmetrically preserved. There is no muscle wasting.
The lower limb reflexes are symmetrically reduced in amplitude at the knees, ankles and hamstrings.
The circumference of the thighs is symmetrical at 49.5cm. The circumference of the calves is symmetrical at 39cm.
Mr Kelly is able to stand on toes and heels.
DIAGNOSIS AND CAUSATION
Mr Kelly was involved in a motor vehicle accident in which is vehicle was struck from behind. There is early documentation of neck pain, pain in the lower back and referred pain from the neck into the right arm across the right shoulder.
He has reported right arm pain and some altered sensibility throughout the period since the subject motor vehicle accident, as documented in the medical file.
The Panel found that the right upper limb symptoms reported do not follow a dermatomal pattern and cannot be described as non-verifiable radicular complaints on that basis.
Non-verifiable radicular complaints are described in the Guidelines as symptoms, for example shooting pain, burning sensation, tingling that follow the distribution of a specific nerve root but there are no objective clinical findings, signs of dysfunction of the nerve root, for example loss of diminished sensation, loss or diminished power, loss or diminished reflexes.
The Panel have assessed Mr Kelly is suffering from a soft tissue injury to the cervical spine.
Diagnostic imaging has demonstrated underlying spondylosis at C5/6. However, there are no clinical features of a C6 radiculopathy.
At the right shoulder, Mr Kelly initially demonstrated hesitancy of right shoulder elevation however when assessed with indirect methods, there is greater freedom of shoulder motion and in particular no evidence of restricted rotation that would be anticipated from an intrinsic shoulder condition.
Whilst the initial active range of motion of the shoulder was reduced, there is too much variability and inconsistency for which the Panel could not provide any medical basis.
When asked about the inconsistency between the findings of various examinations, Mr Kelly advised that he limits shoulder motion due to neck pain.
In relation to the lumbar spine, there is early documentation of low back pain. There appears to be a delay before further documentation of low back pain in mid-2018. Mr Kelly recalls that he had suffered back pain throughout this period, but back pain increased upon spontaneously in mid-2018. The Panel is satisfied and finds that Mr Kelly sustained a soft tissue injury to the lumbar spine.
It is noted the CT scan imaging of the lumbar spine demonstrated a shallow disc bulge at L4/5 but no other pathology. Mr Kelly at the time of the Panel’s examination reports symptoms of intermittent paraesthesia in the right anterior thigh.
At examination, the Panel found a small patch of reduced sensibility in the anterior right thigh which did not conform to a dermatomal pattern. It did not conform to a peripheral nerve lesion pattern. The complaints of intermittent pain at the posterior right thigh are noted. There are no true radicular complaints in the lower extremities. The Panel found that there was a soft tissue injury.
SUMMARY OF INJURIES CAUSED BY THE ACCIDENT
· Cervical spine soft tissue injury
· Right shoulder restricted motion, secondary to neck pain (Nguyen case principle[10])
· Lumbar spine soft tissue injury
[10] Nguyen v The Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351.
IMPAIRMENT ASSESSMENT
The Panel has assessed permanent impairment using the Guidelines and AMA 4. Permanent impairment is defined in AMA 4 as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
In the Panel’s view the impairment in this case meets the definition of permanency outlined above.
Cervicothoracic spine
The clinical presentation is consistent with a DRE Cervicothoracic Spine Category 1 Impairment rating.
There are complaints of intermittent neck pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% WPI rating arises in accordance with the methodology set out in AMA 4, Ch 3, p 103.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor vehicle accident and that there may be continuing symptoms, however the relevant Guides rate the associated impairment at 0%.
Right shoulder
The Panel found that Mr Kelly was likely to be voluntarily self-limiting range of shoulder motion during the initial assessment.
The Panel found that the observed range of shoulder motion could not be attributed to discomfort from the neck or scapula area which could not on medical grounds plausibly give rise to such gross restriction of active motion. At most, a neck injury would cause a mild restriction involving terminal range of elevation.
In any case, the observed restriction was so variable it could not be considered a permanent impairment.
Clause 1.50.4 of the Guidelines, p 14, directs that if there is inconsistency in range of motion, it should not be used as a valid parameter of impairment evaluation.
Clause 1.50.5 directs that if range of motion measurements at examination could not be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if the impairment is present.
The Panel has therefore determined to assess right shoulder impairment by analogy[11] (see below).
[11] See Clause 1.24 of the Guidelines.
It is determined that due to a symptom referral from the neck, there could reasonably be a small impairment of the right shoulder akin to the presence of mild AC joint synovial hypertrophy. Table 20, p 59, AMA 4, provides 10% joint impairment for mild joint swelling. Table 18, p 58, AMA 4, provides a maximum WPI of 15% for the AC joint. 10% of 15% is 1.5%, rounded up to 2% WPI.
Therefore 2% WPI is present for the right shoulder condition.
Lumbar spine
The clinical presentation is consistent with a DRE Lumbosacral Category I impairment rating. There are complaints of intermittent low back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% WPI rating arises in accordance with the methodology set out in AMA 4, Ch 3, p102.
The Panel notes that the Assessor McGrath found evidence of dysmetria of spinal motion. This was not reproduced at the current assessment where spinal motion was reduced symmetrically in all directions.
Combined WPI
The combined WPI equals 2% using the combined values chart, AMA 4 p 322. This is summarised in the Table below:
Body Part or System
AMA Guides/ MAA Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1.
Cervical spine
AMA4 Chapter 3
Page 103
YES
0%
0%
0%
2.
Lumbar spine
AMA4
Chapter 3
page 102
YES
0%
0%
0%
3.
Right shoulder
Figures 38, 41, 44, AMA4,
pages 44, 45, 46
YES
2%
0%
2%
* %WPI = percentage whole person impairment
0
1
0