Kerde v AAI Limited t/as GIO
[2022] NSWPICMP 74
•4 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kerde v AAI Limited t/as GIO [2022] NSWPICMP 74 |
| CLAIMANT: | Hassan Kerde |
INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL: | Member Belinda Cassidy Dr Alan Home Dr Neil Berry |
| DATE OF DECISION: | 4 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accidents Compensation Act 1999 (MAC Act); medical assessment of whole person impairment (WPI) and review under section 63 of the MAC Act; claimant had previous lumbar spine injuries; injuries in motor accident included cervical, thoracic and lumbar spine, right knee, right shoulder and gastrointestinal issues caused my consumption of anti-inflammatory and pain killing medication; Held- claimant’s WPI not greater than 10% (8%) but different to original assessment of 0%; no matter of principle. |
| DETERMINATIONS MADE: | The Review Panel: 1. Revokes the Combined Certificate of Assessor Edward Korbel dated 18 June 2021. 2. Revokes the Certificate of Assessor Ian Cameron dated 25 April 2021. 3. Certifies that the degree of Hassan Kerde’s permanent impairment resulting from the injuries caused by the motor accident on 24 January 2017 is not greater than 10% on the basis of: a. Assessor Korbel’s assessment of 0% WPI b. The Panel’s assessment of 8% WPI. |
STATEMENT OF REASONS
INTRODUCTION
On 24 January 2017, Hassan Kerde was sitting in the driver’s seat of a work vehicle undertaking traffic control duties when, at about 2.30am his work vehicle was run into from behind[1].
[1] Further details are found in the police report at pages 41-46 of the claimant’s bundle of documents.
Mr Kerde says he was injured in the accident and on or about 30 January 2017 he made a claim against GIO, the third-party insurer of the vehicle that he says caused the accident[2]. GIO has wholly admitted liability for the claim[3].
[2] The claim form is found at pages 31-36 of the claimant’s bundle.
[3] The insurer’s section 81 notice is found at pages 39-40 of the claimant’s bundle.
Mr Kerde says he is entitled to non-economic loss. The insurer says he is not. That dispute was referred to the former Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA). Medical Assessors Edward Korbel and
Ian Cameron determined that the injuries referred to the claimant for assessment did not result in a whole person impairment (WPI) greater than 10%[4].[4] Assessor Korbel issued a combined certificate on 18 June 2021 combining his assessment of 0% (in a certificate dated 15 April 2021) for erectile dysfunction and Assessor Cameron’s assessment of 0% (for the spine, knee, leg and arm injuries).
The claimant applied to the Personal Injury Commission (the Commission) for a review of Assessor Cameron’s decision and on 21 October 2021, the President’s delegate allowed the review having determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The President of the Commission then convened the Panel.
LEGISLATIVE FRAMEWORK
Provisions in the Motor Accidents Compensation Act 1999
Mr Kerde’s claim for damages is made under the Motor Accidents Compensation Act 1999 (the MAC Act). His entitlement to, and the amount of damages that can be awarded to him is subject to the provisions of Chapter 5 of that Act.
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with section 134[5] and entitlement to those damages is restricted by section 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[5] The current maximum as of October 2021 is $590,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[6].
[6] See section 132 and section 44(1)(c) of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[7] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[7] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017 and can be found on the SIRA website.
The claimant’s submissions refer to the Motor Accident Guidelines. Those Guidelines (and in particular Chapter 6) are relevant to the assessment of WPI under the Motor Accident Injuries Act 2017 only. As Mr Kerde’s accident occurred before 1 December 2017, that Act and its Guidelines do not apply.
The Panel notes that the clauses the claimant has referred to in the Motor Accident Guidelines are the same as those in the Motor Accident Permanent Impairment Guidelines with the only apparent distinction being the numbering.
Dispute resolution provisions
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Assessor Cameron’s, further medical assessments and the review of medical assessments by a review panel[8].
[8] Sections 61, 62 and 63 of the MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act2020 (the PIC Act). A review panel is to determine how it conducts and determines the proceedings.
The review of the medical assessment undertaken by Assessor Cameron is a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
THE MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Ian Cameron’s certificate is dated 25 April 2021.
At page 2 of his decision, he notes that the following injuries were referred for assessment[10]:
(a) intestine – gastrointestinal issues due to medication use;
(b) right knee and leg – soft tissue injury, tendon damage, meniscal tear to the right knee patella femoral pain and crepitations;
(c) right shoulder, arm and hand – soft tissue injury / nerve damage and muscle injury;
(d) lumbar spine – soft tissue injury, discal injury;
(e) thoracic spine – soft tissue injury, discal injury, and
(f) cervical spine – soft tissue injury, discal injury
[10] The Panel notes the application for whole person impairment assessment (page 27 of the claimant’s bundle) lists an injury to the claimant’s reproductive organ and says the injury is ‘erectile dysfuction’. This injury was not referred to Assessor Cameron and is not before the Panel. It was assessed by Assessor Edward Korbel at 0%.
Assessor Cameron noted that the claimant had a work-related back injury in 2003, had ‘several weeks off work’ and recovered. After the motor accident, the claimant is said to have provided a statement to police and then gone home. When he woke up the next day, he had low back pain, right leg and upper back pain. Assessor Cameron had a history of another motor vehicle accident on 21 May 2018 which caused an injury to his left hand and six weeks off work.
Assessor Cameron records the claimant’s medications include Panadeine Forte, Nuromol and Metamucil. Mr Kerde reported seeing his general practitioner (GP) occasionally and occasionally visiting a chiropractor which he pays for himself.
The claimant reported to Assessor Cameron that he had low back pain with right leg pain which he felt was ‘sciatic in nature’. He also reported psychological issues. He reported abdominal bloating which he controlled with diet.
On examination Assessor Cameron records:
(a) no abdominal tenderness or abnormality;
(b) no scarring;
(c) moderate and symmetrical reduced range of motion (to 70%), no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints;
(d) there was full range of motion of the shoulders with pain at extremes of movement and a full range of motion of other upper extremity joints, no neurological abnormalities in the upper limbs;
(e) in the thoracic spine – moderate and symmetrical reduced range of motion (to 60%) with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints;
(f) in the lumbar spine - moderate and symmetrical reduced range of motion with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints, and negative nerve tension signs, and
(g) knees – no crepitus or instability and full range of movement (0 – 130 degrees) no neurological abnormalities in the lower extremities.
Assessor Cameron noted it was four years and three months since the accident and the injuries “will be permanent”.
Assessor Cameron found the claimant sustained soft tissue injuries to his cervical, lumbar spine and right knee but no other injuries. He said there was no evidence of any additional injury to the right knee or any injury to any intervertebral disc.
He found no evidence of a specific (frank) injury to the intestine or gastrointestinal tract. He said that the diagnosed gastritis is non-specific and not related to the accident and there is no permanent impairment related to it.
He says there is no evidence of a specific (frank) injury to the right upper extremity and no evidence of nerve injury or evidence of injury to the thoracic spine.
He found the degree of the claimant’s WPI was 0% in respect of the following injuries:
(a) soft tissue injury to the right knee – range of motion method - 0%;
(b) soft tissue injury to the lumbar spine – diagnostic related estimate (DRE) Category I – 0%, and
(c) soft tissue injury to the cervical spine – DRE Category I - 0%.
SUBMISSIONS AND PROCEDURAL MATTERS
Claimant’s submissions
The claimant’s submissions lodged with the application for review are dated 19 July 2021[11]. The following general grounds were relied upon (in paragraph 4):
(a) the Assessor’s findings on causation and assessment of impairment are inconsistent with the treating medical evidence and the pre-accident recorded history and in breach of the AMA4 Guides and the Guidelines;
(b) the Assessor’s findings are substantially inconsistent with the treating evidence including radiological investigations from before and after the accident and the medical records;
(c) the Assessor failed to use a goniometer when measuring the upper limb and therefore his findings are unreliable. The claimant identifies the relevant provisions of the Guidelines as clauses 6.48 – 6.57;
(d) chapter 3 of the AMA4 Guides requires measurements to be taken and recorded by way of a goniometer;
(e) the Assessor did not record his measurements and his findings were speculative and in breach of NRMA v Brown[12], and
(f) Assessor Cameron has not formulated his findings on causation and impairment in accordance with the correct test laid out in clauses 6.6 and 6.7 and in conjunction with 6.31 and 6.34 of the Motor Accident Guidelines.
[11] And are found at page 007 of the claimant’s bundle.
[12] [2019] NSWSC 1236.
In terms of causation generally the claimant (at paragraph 6) restates clauses 6.6 and says (at paragraphs 7-10) that Assessor Cameron has speculated the cause of the claimant’s injuries and impairments. The claimant relies on “post-accident” treatment records as demonstrating evidence of injury and continuing consistent complaints of pain and restricted movement “which were not the subject of any objective evidence of impairment immediately prior to the subject accident”. The claimant says Assessor Cameron has failed to disclose his path of reasoning and cites various cases.
Respondent’s submissions
The insurer submits that a goniometer does not have to be used (cl 1.50.1) but that it should be used where clinically indicated. Also, the insurer notes that the Assessor found a full range of movement in the shoulders and the knee.
In terms of the findings on impairment and causation of the lower back, neck and right knee the insurer says the 0% finding was clear from the examination findings and that the claimant’s submissions lack clarity. The insurer says the Assessor must use his own independent judgment and is not required to adopt or follow findings from treating doctors or independent medical examiners and he was required to assess the claimant as the claimant presented on the day of the assessment.
In terms of the injuries not found to be caused by the accident (intestine, right arm and thoracic spine) the insurer argues the claimant would have been assessed at 0% for each in any event.
The insurer also relies on the claimant’s reports to the Assessor which did not include an injury to those body parts.
Procedural matters
The Panel was convened on 24 November 2021 and met by teleconference on 9 December 2021. The Panel issued a report and directions document to the parties shortly thereafter concerning:
(a) Injuries – the Panel advised that all of the alleged injuries would be assessed as well as the claimant’s alleged gastrointestinal problems said to have arisen due to the consumption of medication since the accident.
(b) Documents – the panel confirmed receipt of the bundles of documents and sought additional documents:
(i)documents relating to a claim made after the May 2018 accident;
33.(ii) a chronology of treatment, and
34.(iii) the claimant’s gastroscopy and colonoscopy report.
(a) Re-examination – the Panel determined a re-examination was necessary which would be undertaken by Medical Assessors Home and Berry[13].
[13] The re-examination of the claimant was deferred due to Covid.
Directions were issued to the parties. The claimant was required to produce documents and final submission by 18 January 2022 and the insurer by 25 January 2022.
The claimant provided additional documents in compliance with the directions (AD4 and AD5), but no additional submissions. The insurer also provided additional documents but no additional submissions (AD6).
EVIDENCE BEFORE THE REVIEW PANEL
General evidence
The claim form[14] discloses an accident 14 years ago where the claimant injured his lower back at work. The claimant says he lodged a workers compensation claim but he could not recall the details. At question 24 of the claim form, Mr Kerde says this injury ‘recovered after about 1 year’.
[14] Page 1 of the claimant’s bundle.
At question 22 the following injuries were listed:
(a) STI / discal neck and upper back;
(b) STI discal back;
(c) STI / tendon damage/meniscal tear right knee;
(d) radiculopathy into the right upper limb;
(e) psychological sequalae, and
(f) radiculopathy into right leg.
The accompanying pictogram is reproduced below:
[Image unable to be replicated]
Mr Kerde discloses that his GP is Dr F Hanna of Chester Hill. Dr Hanna signed the medical certificate[15] on 27 January 2017 diagnosing a soft tissue injury to the cervical spine, lumbar spine and right knee.
[15] Page 38 of the claimant’s bundle.
In answer to the panel’s directions the claimant advised that he was involved in a motor vehicle accident in the course of his employment on 21 May 2018. The claimant says that he fractured his right hand, made a workers compensation claim, had one week off work and has made no further claim for benefits beyond that paid by the workers compensation insurer.
Pre-accident relevant records
In answer to the panel’s directions, the insurer provided a chronology of relevant pre-accident attendances on various medical and allied health professionals with references to the page numbers in the two bundles of documents[16].
[16] The chronology is part of document AD6 in the Commission’s electronic file.
Records from Dr Ghayath Al Shelh and Fairfield Heights Medical Centre evidence a previous work-related injury to the claimant’s lower back in 2003. There were attendances for this complaint in 2003, 2005 – 2008 and 2012 at various medical practices.
A bundle of Dr Hanna’s records[17] commence with an attendance on 14 January 2005 (and a referral on that day to Dr Mark Sheridan neurosurgeon for “back pain getting worse”) and another on 15 February 2005 (with a referral to Dr Clark for “opinion and management of L5/S1 disc lesion work related”).
[17] At page 121 of the claimant’s bundle.
Within Dr Hanna’s records are attendances on 4, 12 and 25 March 2014 for left shoulder and upper arm issues diagnosed as a rotator cuff syndrome for which radiology, pain killers and physiotherapy were prescribed.
The left shoulder ultrasound reports a “bursal surface tear …with underlying humeral head bony irregularity” and “dynamic scanning demonstrates abduction in both internal and external rotation to be painful”. There was no evidence of tendon or bursal impingement.
Dr Maniam’s notes have been produced[18] and they commence with a consultation on 26 March 2003. The claimant gave a history of lifting a granite bench top with another worker and as he bent to put it down his back “went” and he could not straighten. No radiation into his legs was noted but there was radiation to the buttocks. There is no report from Dr Maniam to any insurer or lawyer or any correspondence from
Dr Maniam to the claimant’s GP.[18] Page 92 of the insurer’s bundle.
Neurosurgeon, Dr Mark Sheridan’s letter to Dr Al-Shelh in Bankstown is dated 30 June 2003[19]. The claimant was said to have had persisting lower back pain but with no leg symptoms. An MRI was reviewed showing damage to the L5/S1 disc with a minor bulge. Because there was no sign of severe root compression, no surgery was proposed but an ongoing exercise-based program was recommended.
[19] Page 422 of the claimant’s bundle.
Neurosurgeon, Dr Simon McKechnie’s records[20] include handwritten notes, referrals, radiology and a number of reports some of which appear to bear the date they were printed as opposed to when they were written. The Panel notes the following attendances:
(a) 15 September 2005 – first attendance and the report of that attendance notes “persistent lower back pain with radiation through the buttock and posterior thigh with occasional paraesthesia” since his February 2003 accident. The claimant complained of worsening symptoms;
(b) 22 November 2005 – clinically the claimant was unchanged, but the MRI suggested the disc protrusion was smaller. Dr McKechnie refers to chronic pain;
(c) 4 July 2012 – this attendance was prompted by a work-related injury on 22 May 2012 while lifting. Back pain worsened during the day radiating through the left leg into the calf and foot with occasional paraesthesia. It was suspected he had lumbar radiculopathy possibly due to an acute disc protrusion;
(d) 1 August 2012 – still complaining of lower back pain with intermittent paraesthesia but radiating on both sides. The MRI scan was reviewed suggesting no thecal sac or nerve root impingement and Lyrica was prescribed for the neuropathic pain;
(e) 4 September 2012 – the Lyrica had helped a bit, and the claimant was encouraged to continue physiotherapy and exercise. The claimant was working light duties at this time;
(f) 19 December 2018 – injury at work on 24 January 2017 after which the claimant complained of “severe lower back pain radiating through the right leg and into the foot consistent with S1 radicular pain”. Has had cortisone injection into the back;
(g) 4 February 2019 - still complaining of pain extending intermittently through the right leg. The MRI was reviewed showing a small L4/5 right disc protrusion and another at L5/S1 but no significant nerve root compression. Surgery was not recommended. Injections into right L4 and S1 nerve roots were recommended, and
(h) 3 April 2019 – there was some improvement following the injections and again Dr McKechnie advised no operative treatment but core strengthening exercises and Mr Kerde was to avoid heavy work and lifting on a long-term basis.
[20] Page 415 in the claimant’s bundle.
Treating health providers
The claimant also provided a detailed chronology of the treatment he has had since the accident up until 25 February 2020[21]. The claimant has attended several medical practices and seen a number of doctors since the accident.
[21] This chronology is part of AD4 in the Commission’s electronic file.
The Panel has extracted from the claimant’s bundle[22] details of the following documents:
[22] Document A4 in the claimant’s bundle includes all of the documents before Assessor Cameron. The documents referred to in this paragraph are generally found from page 47 to page 62 unless otherwise stated. They were not arranged in chronological order. The Panel has done this.
(a) x-rays neck and lower back 27 January 2017 by Dr Mark Cohen[23] - “No disc pathology or other significant abnormalities of the cervical or lumbar spine”;
[23] Page 138 of the claimant’s bundle
(b) MRI scan right knee 27 January 2017 by Dr Hazan to Dr Hanna[24] notes clinical details of “Possible meniscal tear – MVA” and the conclusion “Normal examination”;
[24] Page 153 of the claimant’s bundle.
(c) MRI scan lumbar spine dated 3 February 2017 addressed to Dr Hanna with the conclusion “Mild right paracentral broad based disc bulge” with a small annular tear but no nerve root impingement. There was also “Mild bilateral facet joint degenerative change at L3/4 and L4/5”;
(d) a referral dated 31 March 2017 from Dr Hanna to Mr Choi physiotherapist for treatment of mechanical “derangement neck and back, soft tissue injury [right] knee”;
(e) a referral dated 31 March 2017 from Dr Hanna to Dr Abu Arab psychologist for treatment of “pts” (presumed post-traumatic stress disorder);
(f) ultrasound left shoulder 22 December 2017 by Dr De Silva to Dr Malik[25] “No rotator cuff tear demonstrated or inflammatory tendinopathy… Impression bursitis with impingement”;
[25] Page 210 of the claimant’s bundle.
(g) CT scan lumbosacral spine dated 4 December 2018 addressed to
Dr Usmani with a history given of “Chronic low back pain. Numbness and weakness at the right lower limb”. The comment was “Disc protrusion at the L5/L1 level abutting the right S1 traversing nerve root as described”;(h) a referral dated 19 December 2018 for an MRI of the lower spine from
Dr Simon McKechnie neurosurgeon;(i) MRI lumbar spine to Dr McKechnie dated 28 December 2018 with a history of “Back and right leg pain ?S1”. The comment says “There is no significant neural compression. There is a small right foraminal disc protrusion at L4/5. There is a small right sided disc protrusion at L5/S1. No canal stenosis”;
(j) letter dated 8 January 2019 from Dr Usmani to the emergency department at Bankstown-Lidcombe Hospital advising the claimant was “Severely Depressed and Suicidal. In chronic pain. Going through Divorce”;
(k) a referral dated 4 February 2019 for CT Guided right L4 and S1 perineural cortisone injection also from Dr Simon McKechnie;
(l) report dated 14 February 2019 of a CT guided intrathecal or epidural injection to Dr Simon McKechnie;
(m) a letter dated 10 April 2019 from Dr Sethi to the insurer requesting approval for a gastroscopy and colonoscopy. Dr Sethi says the claimant says
Mr Kerde has been taking medication since the accident and that his abdominal symptoms started after the accident;(n) ultrasound left shoulder by Dr Younis 23 July 2019[26] reports “tendinosis of supraspinatus tendon” and “subdeltoid bursitis” which may be assisted by cortisone injection. This was done on 25 July 2019;
(o) referral dated 28 October 2019 to the Pain Clinic at Liverpool Hospital referring to “Chronic pain left shoulder, lower back, neck pain since 3 years getting worse. Only relief is through opioids Endone. None of the following medications work”. There is then a list including Brufen, Oxycodone hydrochloride, Lyrica, Zoloft, Palexia, Tramadol, Panaedine forte and Voltaren;
(p) a referral dated 4 November 2019, from Dr Usmani of Greenacre to Psych Central with a reference to a mental health plan;
(q) a mental health plan dated 4 November 2019 from Dr Usmani for depression and anxiety and chronic pain, and
(r) CT scan lumbar spine and sacrococcygeal spine 29 November 2019[27] with conclusion “Possible irritation or impingement of the right L5/S1 nerve root. CT guided nerve blocks may benefit for this patient”. The scan of the sacrum area identified no fracture but “Mild grade 2 sacroiliitis bilaterally”.
[26] Page 467 of the claimant’s bundle.
[27] Page 492 of the claimant’s bundle.
Dr Hanna – Chester Hill
Records from Dr Hanna of Chester Hill have been provided since the date of the accident[28] commencing with the first attendance recorded on 25 January 2017. There are referrals for physiotherapy dated 31 January 2017 (to Barend Nieuwsteraten), to an orthopaedic surgeon dated 7 February 2017 (Dr Guirgis), to a Dr Trivett Bruce dated 2 March 2017 to Mr William Choi and Dr Abu Arab on 31 March 2017. There are a number of certificates of capacity issued by Dr Hanna in this material.
[28] Page 63 of the claimant’s bundle.
Within Dr Hanna’s documents is a form for the transfer of the claimant’s medical file to the Australian Health Care Centre dated 12 November 2017.
Dr Malik - Australian Health Care Centre
Dr Malik provided a report to GIO which appears to be dated 26 February 2018[29]. This report says:
(a) the claimant presented complaining of neck pain and knee pain and on examination Mr Kerde was found to have soft tissue injuries to the knee, neck and lower back. A knee MRI was normal, a neck x-ray showed osteophytes at C3-4 and a lumbar spine x-ray was normal;
(b) when pain did not improve, Mr Kerde was referred for an MRI of the lumbar spine which showed an L5/S1 disc bulge and degenerative changes;
(c) as at 17 January 2018, the claimant’s back pain was ongoing but he had to return to work which has not assisted his injury;
(d) the clamant has anxiety and erectile dysfunction as a result of and after the back injury;
(e) Dr Malik was unaware of any pre-existing injuries;
(f) Mr Kerde was medicated with anti-inflammatories and Endep which was stopped and he was referred to Dr Ali Ghahreman. There is no report from Dr Ghahreman before the Panel;
(g) the claimant was seen on 12 and 27 November 2017, 19 December 2017 and 9 January 2018, and
(h) as at 25 February 2018 the claimant has ongoing cervical neck, lumbar spine and right knee pain with psychological implications.
[29] Found at pages 12 – 15 of the insurer’s bundle (including a clarification report).
Health records have been provided by Dr Malik which include the bundle of documents from Dr Hanna’s surgery at Chester Hill[30].
[30] Page 192 of the claimant’s bundle.
The first attendance was 12 November 2017 where the claimant gave a history of an injury to the back and right knee and that he had a workers compensation and motor accident claim ongoing. On 27 November 2017 there is a reference to the motor accident and “injury resulting in cartilage damage in the right knee and lower lumbar spine” and there was reference to “diffuse vague pain in the upper back also”. There is this note as well, “few years ago has had injury left shoulder – he had rotator cuff injury” and Mr Kerde was referred for a left shoulder ultrasound (rotator cuff tear acute on chronic).
On 19 December 2017 the claimant was referred to Dr Ali Ghahreman (back pain secondary to MVA?) and there is a reference to “cervical neck spondylitic features but normal x-ray” and a referral was given for psychological help due to the breakdown of the claimant’s marriage.
After attempts to contact the claimant by his administrative staff, the claimant further attended on 9 January 2018 where Dr Malik notes Mr Kerde was seeing an orthopaedic surgeon on 15 January and that he had chronic let shoulder impingement with bursitis and chronic back pain. There is no mention of the neck in the notes.
On 25 February 2018 Dr Malik wrote a referral to Dr Medhat Guirgis in respect of ongoing right knee pian and ongoing back pain. On 8 May 2018 is a note of “worsening radicular symptoms in left lower limb” and he was seeing a neurosurgeon.
The claimant attended on Ms Austen at that practice for counselling and has seen her a few times.
There is an attendance on 8 May 2018 for “depression” as well as insomnia and radicular nerve pain with this note “Based on worsening radicular symptoms in left lower limb … he is seeing a neurosurgeon. Will be discussing with him the ongoing worsening cervical spondylosis”.
Dr Usmani – icare Medical Centre and sports clinic
The first attendance recorded is 4 December 2018 with a lengthy examination and history recorded. The only complaint is back pain with pain radiating down the right leg with numbness, weakness and pins and needles. There is a note of a three-day exacerbation and a prescription for Voltaren and Panadeine Forte was given along with a referral to Dr Simon McKechnie. A referral was also given for a right perineural injection.
Mr Kerde returned to Dr Usmani on 10 December 2018 with pain worse after the injection and he was seeing a surgeon on 19 December 2018.
On 20 December 2018 the claimant was in further pain with additional medication given including Palexia and on 27 December his pain levels were discussed and when the claimant attended on 5 January the referral was given for pain management.
There were several attendances in January 2019 for mental health issues and pain management.
Dr Usmani – Greenacre Medical Centre
Records from Greenacre Medical Centre[31] commence with a first consultation on 20 February 2019 with a “history of chronic back pain with acute flareups”. He was said to have seen a spinal surgeon for corticosteroid injections. The claimant said he had worsening pain, had run out of Lyrica, was separated from his wife and buttling for custody of his children.
[31] Page 449 in the claimant’s bundle.
On 22 March 2019 he attended advising he was seeing spinal surgeon on 3 April for ongoing low back pain. Mr Kerde was complaining of “epigastric pain, dyspepsia or bloating secondary to multiple pain medication”. There was mild epigastric tenderness present on examination and a referral to Dr Sethi was given along with a Centrelink certificate. There was a further attendance on 26 March 2019 with the same symptoms.
On 22 May 2019 the claimant attended again for gastrointestinal issues and suspected peptic ulcer. On 13 June 2019 there is reference to Mr Kerde seeing a gastroenterologist and wanting a second opinion. A referral to Dr Nabil Rahme was given.
Two consultations took place in July and then further attendances in August and September 2019 – for left shoulder pain with an impingement test positive and a referral for an ultrasound given.
An updated set of records[32] includes a consultation on 29 November 2019 with severe low back pain for days with pain radiating down the leg and other attendances for weight loss.
[32] Page 470 of the claimant’s bundle.
Gastrointestinal issues
Dr Usmani referred the claimant to Dr Siddarth Sethi, gastroenterologist and his letter to Dr Usmani is dated 10 April 2019[33]. This letter contains a history of abdominal pain, a feeling of fullness and discomfort becoming severe. The claimant told Dr Sethis this started after taking Nurofen, Voltaren, Mobic, Lyrica and Tramadol after an accident two years previously. He recommended a gastroscopy and colonoscopy.
[33] Page 711 of the claimant’s bundle.
A letter from Dr Pran Yoganathan dated 26 June 2019 has been provided[34] which notes that the clamant had lower back pain following a motor vehicle accident for which he consumed a number of non-steroidal anti-inflammatory medications. Although he ceased his medication over the last month, Mr Kerde was still experienced vomiting, upper abdominal pain and diarrhoea. A gastroscopy was booked and undertaken on 2 August 2019, but the records suggest the claimant did not attend for follow up appointments on 21 August and 11 September 2019.
[34] Page 413 of the claimant’s bundle. The letter is not addressed to anyone in particular.
The Mt Druitt Hospital notes regarding the gastroscopy and colonoscopy on 2 August 2019 have been produced[35].
(a) at page 24 of the bundle (page 1 of 21 at the foot of the page) the endoscopy report notes an upper gastrointestinal endoscopy was carried out due to the indications of “diarrhoea” with a diagnosis of normal oesophagus, normal stomach and normal duodenum;
(b) at page 25 of the bundle (page 2 of 21 at the foot of the page) is the colonoscopy report where the indications were “chronic diarrhoea”. There were internal haemorrhoids and diverticulosis in the sigmoid and transverse colon noted, and
(c) on the last page in the bundle are the results of pathology which diagnosed mild chronic gastritis on the gastric biopsy and not abnormality on the biopsies taken of the small bowel or colon.
[35] Document AD5 in the Commission’s electronic file.
Claimant’s medico-legal evidence
Mohammed Assem has provided a seven-page report to the claimant’s solicitors dated 27 March 2019[36].
[36] Page 672 of the claimant’s bundle.
Dr Assem had a history of “previous back injury 15 years ago that subsided” and that there were “no other relevant medical or surgical conditions reported”.
Dr Assem notes that Mr Kerde’s complaints of pain in the neck and upper back have subsided.
The claimant did complain to Dr Assem of having constant pain in the back (3 out of 10) increasing to 8 – 9 out of 10 without reason. This pain radiates to the right thigh and lower leg with pins and needles. Symptoms are worse after sitting.
The claimant also complained of constant pain in the knee and that after 40 minutes knee pain limits his ability to walk. He avoids squatting, kneeling or negotiating stairs.
On examination of the back there was some palpation, no muscle guarding, or spasm and forward flexion was restricted to three-quarters with pain. On examination of the knee there was pain in the patella femoral compartment and coarse crepitations on the right and mild on the left. There was a full range of motion in the knee.
Dr Assem diagnosed:
(a) chronic mechanical lower back pain with non-verifiable radicular complaints of L5/S1 distribution on the right-hand side with pathology at the same level, and
(b) patellofemoral pain and crepitations following a direct injury to the right knee.
Dr Assem expressed the view that Mr Kerde’s prognosis was guarded and that there would be a gradual progression of the underlying pathology with time.
At page 314 of the insurer’s bundle of documents is a two-page report from
Dr Mohammed Assem also dated 27 March 2019 addressed to the claimant’s lawyers. It is not clear whether this was before Assessor Cameron. It was not included by the claimant’s solicitor in the claimant’s bundle.Dr Assem’s second report is headed “PI Assessment Medical Report” and suggests the claimant has reached maximal medical improvement and has a WPI of not greater than 10% with the following impairments:
(a) lumbar spine – DRE II – 5% WPI, and
(b) right knee – patellofemoral crepitations after a direct injury – 2% WPI.
Dr Ben Teoh (psychiatrist) has provided a medico-legal report dated 6 July 2018[37]. He recorded the claimant’s physical injuries as neck, back and right knee and had a history of pins and needles in both legs. He says he was unable to play professional snooker. Dr Teoh had a record of a further accident on 21 May 2018 in which the claimant injured his right elbow, left hand and big toe. There is no past history of any psychological injury or condition and Dr Teoh diagnosed a chronic adjustment disorder with depressed mood and assessed the claimant as having a 17% WPI.
[37] Page 665 of the claimant’s bundle.
Insurer’s medico-legal and other evidence
The claimant made a workers compensation claim as well as a motor accident claim. That claim was denied by CGU Insurance on 14 March 2017[38] on the basis that in CGU’s view Mr Kerde did not sustain an injury arising out of or in the course of employment and that his employment was not a substantial or main contributing factor to his injury. Essentially the insurer relied on its report of Dr John Watson and found no ongoing neck injury, the mechanism of the accident could not have led to a knee injury and the claimant’s pre-existing back condition was the source of any back complaints.
[38] Page 117 of the insurer’s bundle.
Dr Watson’s report to the claimant’s employer’s workers compensation insurer is dated 15 February 2017[39]. Dr Watson recorded current symptoms of right knee pain, left lumbar spine pain with some radiation into the buttock, pain in the neck with no radiation into the upper limbs. Mr Kerde was examined and reported some pain in his knee and lower back but had normal movements of neck and back and shoulders.
Dr Watson records ‘minor ongoing subjective symptoms’ with no objective evidence of significant pathology.[39] Page 127 of the insurer’s bundle.
Dr Watson could not confirm a neck injury as the claimant made no complaints and there was no evidence of any neck injury on examination. He expressed the view that if Mr Kerde had injured his neck, it was a soft tissue injury only which had resolved.
A factual investigation was undertaken by the workers compensation insurer[40]. Within that report is a statement from Mr Maguire, the General Manager of Mr Kerde’s employer. It explains that nature of the truck he was sitting in and the scorpion feature (impact absorbing safety barrier) behind it. The claimant undertakes traffic control for roadwork sites and drives a truck. He works nights. The vehicle he drives parks with flashing lights and a sign board which essentially warns drivers approaching from behind of the existence of road works ahead.
[40] Page 141 of the insurer’s bundle. The investigators are AHC Investigations.
The claimant reported damage to the scorpion feature but not to the truck itself.
Mr Maguire describes the damage. Photographs are attached to the report, taken on the night of the accident but they are not very clear. The damage to the offending vehicle appears to be significant.In his statement dated 13 February 2017 Mr Kerde says he sustained injuries to his right knee, neck and back[41]. He says he is having restrictions and pain in the right knee. He reported “neck is currently okay” but pain in his lower right back and left of his spine is the worst and will not go away. He said he “never suffered these pains or symptoms previously”.
[41] Paragraph 19 of the statement.
Dr Andrew Keller undertook an examination and impairment assessment of the claimant and his injuries on 23 March 2018[42]. He notes the history of a 10 kmph impact recorded in the GP’s notes. He found no traumatic injuries to the neck, back or right knee and noted full symmetrical range of motion in the cervical and lumbar spine and normal examination of the right knee with no restriction of motion. Soft tissue injuries were diagnosed with 0% WPI.
[42] Page 16 of the insurer’s bundle
Dr Keller was given a history of constant lower back pain and intermittent pain in the right knee. The claimant said he had a 2001 soccer injury causing lower back pain but there is no report of the 2003 work related back injury or subsequent consultations.
The claimant complains of constant lower back pain associated with daily pins and needles in the legs. He also complained of intermittent pain in the right knee. There was no complaint by Mr Kerde recorded by Dr Keller of neck, thoracic or mid back pain, right shoulder or arm symptoms or right lower leg symptoms other than the knee.
Dr Keller refers to the work truck the claimant was sitting in at the time of the accident and the “scorpion device” fitted to it which was designed to absorb the impact of any rear end collision. He considered it unlikely that the claimant would have sustained any lasting injuries noting the speed of the offending vehicle before impact and the presence of the impact absorbing mechanism on the back of the claimant’s truck.
Dr Keller referred to the claimant’s previous back issue as “brief lower back pain” and “a history of left shoulder tendinopathy in 2014 that is the likely explanation of his current [shoulder] complaint”.
There is a medico-legal report from psychiatrist Dr Peter Young dated 23 April 2019. The claimant blames the breakdown of his marriage and the separation from his children on the accident as he said he could not work and earn an income to support them.
RE-EXAMINATION REPORT
The claimant was examined by Medical Assessors Berry and Home on 25 March 2022.
History from claimant
Mr Kerde reported that he was the seat-belted driver of a truck positioned adjacent to gardening contractors. His truck was struck from behind by a Subaru Forrester four-wheel drive whilst positioned on James Ruse Drive in Rose Hill. There was greater impact on the right-side corner of the rear of the vehicle. He recalls that there was damage to the attenuator (the scorpion feature) but not the body of the truck. He recalls feeling a jolt. He believes that his right knee struck the dashboard.
The claimant recalls that he alighted from the truck to exchange details with the driver of the car. He says that the driver put the damaged bumper bar of his car into the vehicle and drove away. Mr Kerde then returned to his truck and drove to a nearby service station to exchange details with police.
The claimant recalls symptoms of psychological shock and mild pain in his right knee, but he recalls no other immediate physical symptoms.
After speaking with police, Mr Kerde returned in the truck to the work depot at Campbelltown before driving home. He arrived home at 3.00 am and slept until
11.00 am. When he woke, he experienced pain in his neck, lower back and right knee. He telephoned his employer.The claimant says that he was taken to Bankstown Hospital Emergency Department where he was assessed. There was no imaging performed. He then attended his GP. He recalls that he was referred for scans.
Mr Kerde received a period of physical therapy for several weeks but found that this exacerbated his back pain. He subsequently attended a chiropractor whom he attended for spinal adjustments for a period of six weeks. There was temporary symptom benefit. He recalls that the insurer declined further funding. He recalls subsequent exercise at home.
The claimant attended Dr McKechnie and received a spinal injection with mild benefit.
Mr Kerde says that he has attended a chiropractor fortnightly over the past 12 months. He describes symptom benefit following spinal adjustments.
The claimant reports the current use of Panadeine Forte analgesia, two tablets two to three times a week. He also takes occasional Nurofen to manage headaches. He had, in the past and when the pain was more acute, consumed medication at a greater rate.
Current symptoms
Mr Kerde denies any symptoms of neck pain. He recalls that early symptoms of neck pain which settled within a short period of the accident.
Mr Kerde told the medical members of the Panel that he does not experience any complaints at the right shoulder or any symptoms in the right upper limb.
He says that he experiences occasional frontal headache symptoms.
Over the past 12 months, Mr Kerde reports that he has developed pain in his mid-back and pain in the left rib cage, diagnosed by his chiropractor as a “popped rib”.
Midline back pain was said to be present most of the day at 5/10 on the visual analogue scale (VAS).
The claimant says that there is a complaint of constant low back pain of average intensity 5-6/10 on the VAS, felt in the midline, but more severe on the right side. Pain radiates sometimes to the buttock and the back of the right thigh as far as the knee. There are no complaints of radiating pain below the knee.
Mr Kerde reports that there is sometimes a sensation of global paraesthesia in the right leg associated with prolonged sitting, particularly when sitting on a toilet.
The claimant described anterior right knee pain which is fairly constant but increases with activity. He says there is sometimes swelling and frequent painless creaking in the knee. Mr Kerde does not report symptoms of giving-way. He is able to semi-crouch. He is able to kneel for short periods.
Mr Kerde is right hand dominant. He reports a sitting tolerance of 40 minutes limited by back pain. There is a similar tolerance for driving. He is able to walk for up to an hour before limited by back and right knee pain. He is not able to sleep through the night waking due to back pain. He is independent for activities of self-care and estimates a capacity to lift up to 6 kg.
Mr Kerde said he had not suffered any gastro-intestinal symptoms or problems before his motor accident. As far as the claimant could recall, he began to experience bloating and cramping sometime in 2018. He then began to suffer constipation and diarrhoea and then found that any food or liquid intake would make his bloating worse, and he experienced a sticking sensation at the lower end of the sternum when he ate.
Mr Kerde explained he was referred to a gastroenterologist, Dr Pran Yoganathan who undertook gastroscopy and colonoscopy on 2 August 2019 which revealed no major abnormalities to explain his symptoms, however, a subsequent gastric biopsy report showed mild chronic gastritis.
Mr Kerde told the medical members of the Panel that he only eats one meal a day, otherwise he suffers severe bloating and upper abdominal pain. He confirmed that he opens his bowel on average four times a day and has anything from a constipated stool to diarrhoea. However, the most important thing to him is that there is a feeling of incomplete emptying but he reported no bleeding from the bowel.
Examination findings
The claimant is 38 years of age, standing 178 cm and weighing 106 kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There is a full range of active cervical spine flexion and extension to normal range. There is a full range of right and left-sided rotation to normal range. There is a full range of lateral flexion on each side to normal range.
Upper extremities
Neurological examination of the upper extremities reveals no muscle wasting. There is normal myotomal power in all muscle groups. There is normal sensibility throughout the upper extremities. The deep tendon reflexes are symmetrically preserved.
There was a full range of active motion of the right and left shoulders measured with a goniometer as follows:
Shoulder Movements
RIGHT - Active range of motion measured in degrees
LEFT – Active range of motion measured in degrees
Flexion
180
180
Extension
50
50
Abduction
170
170
Adduction
50
50
External rotation
90
90
Internal Rotation
80
80
Thoracolumbar spine
Examination of the thoracolumbar spine reveals normal spinal curvature. There is no muscle spasm. Tenderness is elicited to palpation overlying the right-sided paravertebral structures at the L4/5 level. Active spinal motion is relatively well maintained with flexion full, smooth lumbar deflexion. Extension is full. Right lateral flexion is performed to four-fifths normal range, left lateral flexion is full, ipsilateral pain is declared during right lateral flexion. There is mild muscle guarding. Tenderness is elicited to palpation in the mid-thoracic spine between T7 and T10. There is a full range of thoracic rotation to each side which is symmetrical, normal in range. There is no muscle guarding.
Lower extremities
Neurological examination of the lower extremities reveals straight leg raise to
70 degrees bilaterally. Lasègue's sign is negative bilaterally. There is a negative slump test. Neurological examination of the extremities reveals normal lower limb power in all muscle groups. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
Right knee
On examination of the right knee, there is no abnormality to inspection or palpation. There is no joint effusion. There is moderate patellofemoral joint crepitus on the right side. There is mild crepitus on the left. Pain is declared during Clarke’s manoeuvre, that is, compression of the patella against the femur during quadriceps contraction reproduces anterior knee pain. Ligaments are stable in both AP and lateral planes.
The circumference of the thighs were symmetrical at 53 cm. There was no calf wasting. There was a fair range of active motion in the knee at 0-130 degrees. This compares with 0-135 degrees on the left side.
Gastrointestinal injury
On physical examination, the medical members of the Panel observed that Mr Kerde was a solidly built man who was in no obvious discomfort.
Mr Kerde’s abdomen was slightly protuberant. There were no scars or obvious hernias. With the claimant lifting his head and shoulders, he displayed a mild non-tender divarication of the rectus muscles but no evidence of hernia. There was no tenderness to palpation. There was no guarding, rigidity or rebound and no palpable masses.
With the claimant in the left lateral position, anal examination showed no evidence of haemorrhoids. Further internal examination was not carried out as the claimant had had a colonoscopy.
WHAT INJURIES WERE CAUSED BY THE ACCIDENT?
The claimant was involved in a motor vehicle accident in which he was the seat-belted driver of a truck struck from behind by a four-wheel drive. While the Panel notes the particular truck had some form of impact absorbing mechanism, the Panel accepts the claimant’s evidence of a jolting sensation with the right knee impacting the dashboard. There is early documentation, in particular the medical certificate attached to the claim form and the GP’s notes that support injuries to the neck, lower back and right knee.
Cervical spine - neck
The claimant advised the medical members of the Panel that his neck pain had resolved, and the Panel confirmed there was no abnormality on examination of the cervical spine. This is consistent with the reports of Drs Watson, Assem and Keller.
The Panel is satisfied that the claimant did sustain a soft tissue injury to the cervical spine, which has resolved.
Lumbar spine – lower back
The Panel is satisfied, on the basis of the contemporaneous records and the claimant’s history that Mr Kerde suffered a soft tissue injury to the lumbar spine. There is evidence of underlying L5/S1 discopathy, evident on previous scans of the spine and treatment by Dr McKechnie and others.
The medical members of the Panel diagnose a soft tissue injury to the lumbar spine, aggravating a pre-existing condition with somatic referred pain.
Right knee
At the right knee, the claimant sustained a soft tissue injury with a contusion of the patella (kneecap) due to direct injury to the knee. The medical members of the Panel diagnose symptomatic patellofemoral joint chondromalacia and the Panel is satisfied this was caused by the accident.
Gastrointestinal issues
There is no evidence that Mr Kerde had any gastrointestinal issues before the accident. The Panel accepts the claimant’s history of his medication consumption after the accident and the development of gastrointestinal issues as a result. In the clinical experience of the medical members of the Panel, gastrointestinal issues can be caused by the consumption of medication such as Panadeine Forte and anti-inflammatories such as Voltaren.
The claimant has had an investigative endoscopy and gastroscopy. He has been diagnosed with gastritis. The Panel accepts this diagnosis and is satisfied that the claimant’s gastritis has been caused by the accident.
Injuries not caused by the accident
Although the claimant reports recent symptoms of thoracic back pain, there was no early documentation of thoracic back pain. The claimant described the onset of thoracic back pain or mid-back pain over the past 12 months.
The Panel did not find that there is a causal relationship between the claimant’s recent complaints of thoracic back pain and the motor vehicle accident and therefore any thoracic spine injury and associated impairment is not caused by the subject motor vehicle accident.
There is no evidence that the claimant sustained a frank or direct injury to the right arm or shoulder. There are no abnormalities on examination of the right shoulder or right arm in any event. There is no evidence of soft tissue injury or nerve damage, as listed by the claimant in the application for medical assessment.
Furthermore, after a careful examination of the claimant, the medical members of the Panel are of the view there is no restriction of right shoulder motion secondary to spinal injury.
Finally, the Panel notes that radiology of the claimant’s shoulders appears to be restricted to the left shoulder which the claimant has never alleged was injured in the car accident and which may be related to a pre-existing rotator cuff pathology.
ASSESSMENT OF WHOLE PERSON IMPAIRMENT
General provisions
Clause 1.21 of the Guidelines says that: “The evaluation should only consider the impairment as it is at the time of the assessment”.
It is now five years since the accident, four years since the examination by Dr Keller and three years since the examination by Dr Assem. The medical members of the Panel note that the type of injuries sustained by the claimant in the accident would be likely to improve over time.
In the light of the Panel’s findings with regards to causation above, the Panel will consider the assessment of whole person impairment of the following injuries:
(a) lumbar spine;
(b) right knee, and
(c) gastrointestinal tract.
Assessment of the lumbar spine
When undertaking an assessment of the spine, the AMA4 Guides and the Guidelines provide for five categories of Diagnostic Related Estimates (DRE). Each category provides a fixed degree of impairment.
Table 7 in the Guidelines includes the following summary of three of these DREs relevant to this claim and the Panel’s assessment:
(a) low back pain, neck pain or symptoms – DRE I;
(b) low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II, and
(c) low back or neck pain with radiculopathy – DRE III.
Mr Kerde has low back pain and other symptoms so is at least DRE I. While the claimant reports referred pain into the buttocks and to the back of the thigh there are no true radicular symptoms such as impaired reflexes, muscle atrophy, nerve root tension signs, muscle weakness or reproducible sensory loss following an appropriate spinal nerve root distribution. The medical members of the Panel found no clinical signs of radiculopathy during the course of their examination.
Mr Kerde’s presentation is, in the clinical judgment of the medical members of the Panel consistent with a DRE II for the following reasons:
(a) there was muscle guarding evident on examination and
(b) there was non-uniform impaired range of motion (dysmetria).
A 5% WPI rating arises in accordance with the methodology set in AMA 4, Chapter 3, page 102 and the Guidelines.
Assessment of the knees
Part 3.2 of Chapter 3 of the AMA4 Guides provides 13 methods of assessing “the Lower Extremity” and states that “in general, only one evaluation method should be used to evaluate a specific impairment”. Range of motion is one of these and diagnosis-based estimates are another.[43] Neither of these provides for crepitation.
[43] Section 3.2e at page 77 and section 3.2i at page 84.
On page 82 – 83 of the AMA4 Guides under the heading 3.2g Arthritis is table 62 entitled “Arthritis Impairments Based on Roentgenographically determined Cartilage Intervals”. The note at the bottom of the table says that:
“In a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on roentgenograms, a 2% whole-person or 5% lower extremity impairment is given.”
At the examination, the medical members of the Panel recorded moderate crepitation in the right knee when compared to mild in the left and some restriction of movement. There was patella femoral pain. Noting the history of a right knee impact in the accident and early complaints of right knee pain, the Panel is of the view it is appropriate to award the claimant 2% WPI for his right knee injury.
Assessment of the gastro-intestinal tract
The claimant’s original application for assessment alleged “Gastrointestinal issues (due to medication use) namely mild chronic gastritis”.
If any condition affecting the gastrointestinal tract results from the consumption of medication consumed for the muskulo-skeletal injuries sustained in the accident then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[44] gastrointestinal impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[44] (2011) NSWSC 351 – that was a case about a neck injury which resulted in impairment to the shoulders.
Assessment of the digestive system is provided for in Chapter 10 of the AMA4 Guides and clauses 1.244 – 1.249 in the Guidelines.
Clause 1.246 provides as follows:
“Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Upper digestive tract disease caused by the use of anti-inflammatory medications resulting in severe and specific signs or symptoms must be assessed as a class 2 impairment according to Table 2 (page 239, AMA4 Guides).”
The claimant has mild chronic gastritis which is an upper digestive tract condition. Noting clause 1.246 of the Guidelines there is a deemed class 1 impairment which must be assessed at between 0% and 2%. The claimant is not having continuous treatment or medication, his weight is maintained and there are no surgical procedures anticipated however Mr Kerde is experiencing continuing albeit mild symptoms. The Panel considers it is appropriate to award the claimant 1% WPI for his accident-caused gastritis.
In terms of his lower digestive tract, the claimant has had a normal colonoscopy. Any symptoms are likely to be due to irritable bowel syndrome which would not be related to the accident, has no assessable impairment and therefore this condition would attract a 0% WPI if resulting from the accident.
CONCLUSION
The Panel assesses the claimant’s WPI as a result of the injuries sustained in the accident as follows:
(a) lumbar spine / lower back 5%;
(b) right knee 2%, and
(c) gastrointestinal tract 1%.
It follows that Assessor Cameron’s certificate must be revoked and a fresh certificate issued.
The Panel notes that Assessor Cameron’s assessment was included by Assessor Korbel in a Combined Certificate. While the claimant’s WPI assessment has changed from 0% to 8%, the overall outcome has not changed and he remains with a WPI of not greater than 10%. The Panel has however formed the view that both Assessor Cameron and Assessor Korbel’s combined certificate should be revoked and a fresh certificate issued.
0
1
0