Khalil v AAI Limited t/as AAMI
[2022] NSWPICMP 440
•1 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khalil v AAI Limited t/as AAMI [2022] NSWPICMP 440 |
| CLAIMANT: | Gihan Khalil |
INSURER: | AAI Limited trading as AAMI |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 1 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 24 March 2019: the dispute related to the assessment of permanent impairment under the Motor Accident Injuries Act 2017; injury to cervical spine; injury to lumbar spine; injury to left shoulder; Held – soft tissue injuries to cervical spine, lumbar spine and left shoulder caused by accident; cervical spine diagnosis related estimate (DRE) cervicothoracic category I assessed at 0% whole person impairment (WPI); 0% WPI for injury to left shoulder; lumbar spine assessed as DRE lumbosacral category II assessed at 5% WPI; total WPI not greater than 10%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Neil Berry dated 25 March 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which is not greater than 10% and is 5%: · soft tissue injury to the cervical spine; · soft tissue injury to the lumbar spine, and · soft tissue injury to the left shoulder. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 24 March 2019 Ms Gihan Khalil (the claimant) was a front seat passenger in a vehicle driven by her husband on the M1 Motorway which stopped in a line of traffic due to road works when their vehicle was hit from behind at high speed causing
Ms Khalil to sustain injury (the accident). Ms Khalil had difficulty getting out of the vehicle by herself and had pain to the neck, the left shoulder and the low back.Ms Khalil asserts she sustained the following injuries in the accident:
(a)injury to the left shoulder;
(b)injury to the neck, and
(c)injury to the lower back.
Ms Khalil has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Ms Khalil under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Khalil as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Neil Berry. Assessor Berry assessed Ms Khalil on 17 March 2022 and issued a certificate dated
25 March 2022 in respect of a total 5% whole person impairment (WPI) arising out of the injury to the lumbar spine.[2][2] AD1 p 46.
Ms Khalil has sought a review of the medical assessment of Medical Assessor Berry.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Berry was lodged on 21 April 2022 within 28 days of the date on which the Certificate of Assessor Berry was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 15 August 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act, AD2 p 6.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) [5]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 20 September 2022 the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[8]
[8] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to 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 a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Berry:
· left shoulder – strain and referred pain from the cervical spine assessable as per Nguyen;
· cervical spine – musculo-ligamentous strain, and
· lumbar spine – L5/S1 disc prolapse and S1/L1 nerve root compression.
Medical Assessor Berry reported Ms Khalil said her neck was occasionally sore, but the pain tends to come and go. When the pain is severe, she also experiences pain in the left shoulder. She complained of constant pain in the left side of the back which radiates into the left buttock and left thigh to the level of the knee.
On examination Assessor Berry reported Ms Khalil was not tender to palpation in the neck or the paraspinal muscles and she demonstrated a full range of motion of the neck. He reported she indicated some discomfort at full rotation to the left in the trapezius muscle. He reported there was no muscle guarding, no muscle spasm and no alteration of spinal contour.
In regard to the lumbar spine Assessor Berry reported Ms Khalil was tender in the left paraspinal muscles. He noted lumbar lordosis was preserved and there was no muscle spasm. He reported Ms Khalil demonstrated half the normal range of flexion, less than a third of the normal range of extension, normal right rotation and half rotation to the left.
In regard to the lower extremity Assessor Berry reported Ms Khalil demonstrated 90º of straight leg raising on both sides with discomfort felt in the buttocks. He found no evidence of nerve root tension, reflexes were brisk and equal, there was no sensory changes and no unilateral muscle wasting.
Assessor Berry reported Ms Khalil demonstrated a full range of motion at both shoulders, minimal tenderness in the trapezius muscle on the left side, but no wasting and no muscle spasm.
Assessor Berry found the following injuries caused by the accident had resolved:
· cervical spine as he found no symptoms related to the cervical spine, and
· left shoulder as Assessor Berry concluded there was no referral of symptoms from the neck as the neck injury had resolved and the minimal discomfort in the left shoulder was consistent with a resolving soft tissue injury.
Assessor Berry found the claimant had sustained a soft tissue injury to the lumbar spine which he assessed as a DRE category II resulting in a 5% WPI.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 11 April 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 50. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD2 paginated from pages 1 to 340.
Application for personal injury benefits
In the Application for personal injury benefits dated 17 April 2019 the claimant nominated her injuries as lower back left side, neck pain and left shoulder pain.[9]
[9] AD1 p 9.
Treating medical evidence
Clinical records of Dr Nashed
The records disclose an earlier workers compensation claim arising out of injury to the left knee and ankle on 10 February 2009.
On 2 April 2019 Dr Nashed, general practitioner (GP) recorded the accident.[10] He reported back pain and on examination noted restricted range of movement and tenderness in the lumbar spine. He reported no pain, no tenderness and no restriction of movement of the neck.
[10] AD2 p 193.
Certificates of capacity issued by Dr Nashed following the accident provide a diagnosis of “L5 disc prolapse and S1 nerve root compression”.
CT lumbar spine, 8 April 2019[11]
[11] AD2 p 13.
The report concludes:
1.“At L5/S1, posterior disc bulge is compressing the left S1 nerve root and possible left L5 nerve root.”
Following a CT scan Dr Nashed reviewed Ms Khalil on 9 April 2019 when he reported left sciatica, left L5 nerve root compression and left S1 nerve root compression.[12] He prescribed Lyrica and Mobic.
[12] AD2 p 193.
Thereafter, certificates of capacity issued by Dr Nashed referrable to the accident provide a diagnosis of “L5 disc prolapse and S1 nerve root compression”.
On 20 May 2019 Dr Nashed referred Ms Khalil to Dr Andrew Jordan, rheumatologist in respect of lower back pain radiating to the left buttock and left thigh.[13]
MRI of the lumbar spine, 12 June 2019[14]
[13] AD1 p 38.
[14] AD1 p 37.
The report concludes:
(a) there are age-related degenerative features, most conspicuous at L5/S, involving both the discovertebral and facet joints;
(b) at this level, a left paracentral annular tear is associated with low-grade disc bulge, which may be impinging on the left S1 nerve root in some positions. There is no visible associated herniation, although small osteophytes contribute to low-grade foraminal encroachment, and
(c) at other levels, there is no disc herniation or significant bony stenosis and no focal neural impingement.
In an Allied health recovery request completed by physiotherapist Caitlin Hort on
24 June 2019 she described the diagnosis as “L5/S1 disc prolapse and S1 and L5 nerve root compression from MVA on 24/3/19”.[15] Ms Hort reported constant left lower back pain, travelling into the buttock and posterior thigh to knee level. She also reported a feeling of general weakness in legs including the thigh and that Ms Khalil struggled to lift her leg up to put her shoes on. She reported flexion to knee kevel increased pain and extension caused a major loss of motion.[15] AD2 p 146.
Dr Andrew Jordan, rheumatologist
Ms Khalil saw Dr Jordan on 29 July 2019.[16] He reported following the accident
Ms Khalil had immediate pain in her left leg and went by ambulance to Gosford Hospital. He also reported “she also had initial pain in her neck and left arm, but this has resolved”.[16] AD2 p 287 and 328.
Dr Jordan noted it was four months post-accident and Ms Khalil had not improved at all, with problems in the left lumbar region and her left buttock radiating down to her knee in the lateral and posterior thigh. He noted there was no numbness or paraesthesia in the leg and the pain never radiated to the foot. He reported Ms Khalil had undergone physiotherapy for the preceding four weeks and was taking Lyrica and Panadol Osteo. Dr Jordan also reported Ms Khalil had developed some right hip pain and because she seemed to be favouring it, had developed a problem with the left lateral hip.
On forward flexion Ms Khalil could reach below her knees. Lateral flexion was slightly reduced. He found some weakness in the gluteal muscles and noted Ms Khalil could do a single leg squat with unsteadiness. Her peripheral strength was normal and reflexes normal. Peripheral pulses were normal. Straight leg raise was positive at 50º on the left with reproduced hamstring pain but no back pain. Straight leg raising was normal on the right. He found no hip joint instability but marked left trochanteric tenderness. Sensory examination to light touch was normal.
Dr Jordan found the pain was from the accident. He thought there was some irrigation of the nerve from the annular disc tear, and he also noted the annular disc tear may cause the structures to spasm and lock. He recommended a left L5/S1 perineural steroid injection.
On 21 August 2019 following a CT guided left L5/S1 epidural steroid injection
Dr Jordan reported Ms Khalil was 90% better.[17] He concluded the excellent response to the injection showed the annular disc tear was irritating the left L5 nerve.[17] AD2 p 292 and 327.
CT scan of the cervical spine, 3 November 2020
The report describes the history as neck pain radiating to the left shoulder. The findings include, inter alia the following:
“The C5/6 level shows disc osteophytic change and bilateral uncovertebral joint osteophytes. Moderate to severe central canal narrowing is seen. No foraminal narrowing is seen.
The C6/7 level shows disc osteophytic change, more on the left side. No canal stenosis or foraminal narrowing.
The C7/T1 level is satisfactory without canal or foraminal narrowing.
No further significant bony lesion in the C-spine.
Incidental note is made of sclerotic change involving the left lateral portion of the T2 vertebral body”.
Medico legal evidence
Dr Ian Meakin, orthopaedic surgeon
Ms Khalil saw Dr Meakin in a joint medico legal assessment on 1 July 2020. Dr Meakin reported there was a full measurable range of motion in the cervicothoracic spine and the right and left shoulder with no discomfort. He concluded:
“Ms Khalil has sustained soft tissue injury to her low lumbar back, referencing the L5/S1 level. There was pre-existing but asymptomatic facet joint degenerative change at L5/S1 with the current left paracentral annular tear with low grade disc bulge which may impinge on the left S1 nerve root. This secondary pathology potentially relates to the effects of the motor vehicle accident.”
Dr Meakin assessed a DRE lumbosacral spine impairment category II resulting in an assessment of 5% WPI. He found there was an asymmetrical active loss of range of motion of the lower spine due to pain with no distal neurological impairment and no evidence of palpable paravertebral muscle spasm or guarding. He found there were no clinical symptoms to satisfy the definition of a non-verifiable radicular complaint. The definition of radiculopathy set out in the Guidelines was not met in that there was no asymmetry of reflexes or evidence of muscle atrophy or muscle weakness anatomically localised to an appropriate spinal nerve root distribution.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 21 April 2022.
The claimant submits the MRI of the lumbar spine dated 12 June 2019 demonstrated the following pathology:
(a) a mild posterior bulge associated with a left paracentral tear, and
(b) contact with the left S1 nerve root.
The claimant submits despite that pathology Assessor Berry did not consider whether radiculopathy was present and did not consider the radiculopathy criteria in the Guidelines.
Insurer’s submissions
The insurer provided submissions dated 9 May 2022.[18]
[18] AD2 p 3.
The insurer disputes Assessor Berry failed to engage with the relevant radiological findings but in any event submits that such consideration would be immaterial to the assessment having regard to the cl 6.121 of the Guidelines which expressly states “an imaging result alone is insufficient to qualify of a DRE category… and “does not make the diagnosis”.
The insurer notes that the point of delineation between DRE II and DRE III is the presence of radiculopathy which involves clinical findings established by way of clinical examination of the claimant. The insurer submits the presence of low back pain with non-verifiable radicular complaints correctly placed the injury to DRE category II.
THE MEDICAL EXAMINATION
Background
Medical Assessor Kenna examined Ms Gihan Khalil, a 49-year-old female, at his rooms at Level 20, St Martins Tower, 31 Market Street, Sydney on 11 October 2022 in relation to injuries incurred to the:
· left shoulder;
· cervical spine, and
· lumbar spine.
The accident occurred on 24 March 2019, a period of some three and a half years ago.
Ms Khalil has been in Australia some 27 years and is married with two children. Her husband works in medical technology.
Ms Khalil is a business consultant in the IT industry. She has been in the industry for some 20 years, working four days per week.
Ms Khalil has not been involved in any prior or subsequent motor vehicle accidents and has no past history of neck, left shoulder or lumbar spine problems.
Since the accident she has had two injections pertaining to the lumbar spine, both of which provided some temporary help, and she continues to take oral medications including Panadol Osteo and Lyrica.
The accident
On 24 March 2019, Ms Khalil was a front seat passenger wearing a seat belt in a car driven by her husband. The vehicle was stopped on a highway in stop/start traffic conditions when a large 4WD with a bull bar rear-ended their vehicle with what appears considerable force. The claimant’s vehicle was towed and was non-repairable.
There was no loss of consciousness, but Ms Khalil was shocked and initially unable to self-extricate.
Both ambulance and police attended.
Subsequently Ms Khalil stated she experienced low back pain which radiated to the left buttock plus neck and left shoulder discomfort.
She was taken to Gosford Hospital and discharged the same day and then came under the care of her GP.
Medical management post motor vehicle accident
Dr Nashed, GP of Merrylands noted a complaint of neck pain with associated pain radiating towards the left shoulder. Whilst it was stated in the report that her condition had resolved over several days, nevertheless Ms Khalil continues to experience some intermittent cervical symptoms radiating towards the left shoulder.
Ms Khalil commenced physiotherapy and also was prescribed analgesics. As a result of her persistent lower back symptoms, she was referred to Dr Jordan, rheumatologist, who saw her about three months post-accident.
The MRI confirmed at that time an L5/S1 annular disc tear with possible irritation of the left S1 nerve root.
Ms Khalil underwent a CT-guided left S1 epidural steroid injection and shortly thereafter, noted a 90% relief of pain with significant lessening of lower back and no paraesthesia of pain in the buttock.
Subsequently, there was some return of symptoms but not to the level of the pre- injection status.
Importantly, even in 2020 Dr Jordan, rheumatologist made no findings of radiculopathy, noting that a full neurological examination of the lower extremities revealed no abnormality. Tendon reflexes were symmetrically present and equal, and sensation was normal with no loss of power and no muscle wasting involving either thigh.
There was no assessable impairment pertaining to the cervical spine, nor indeed the left shoulder.
It was Dr Jordan’s considered view that Ms Khalil had sustained soft tissue injury to the lower back secondary to L5/S1 discogenic injury. A subsequent MRI confirmed a left paracentral annular tear and disc bulge compatible with impingement of the left S1 nerve root and clinical signs. It was considered this pathology related to the effects of the accident.
The Panel has engaged with the material available, namely the relevant radiological investigations and the MRI of the lumbar spine on 12 June 2019, addressing issues as to clinical presentation in relation to a left paracentral tear, a mild posterior bulge and contact with the left S1 nerve root.
The Panel also notes with the passage of time there has been some improvement, although the effect of the injections has dissipated to some extent.
Current symptoms
Her current symptoms consist of left-sided neck pain with referral also towards the tip of the left shoulder but not into the upper arm, as well as lower back pain with referral into the back of the left leg but not past the ankle.
Ms Khalil notes since the accident, her neck has improved between 40-60%, although she still feels pain and stiffness particularly on turning.
The left shoulder has improved about 70% and is far less problematic. Ms Khalil feels some localised discomfort to the left shoulder which she feels is related to the neck but is aggravated by movement. There are no symptoms involving the left upper limb.
The most problematic is the lower lumbar spine and she acknowledges some improvement, but only about 25%.
She states the pain in the lower back has been persistent throughout. She has had two injections and she has intermittent symptoms involving the left lower extremity.
EXAMINATION FINDINGS
General presentation
Findings on clinical examination include specific measurements of range of motion ROM (where applicable) of each of the injuries assessed.
Cervical spine
There was no muscle guarding or spasm present. Assessor Kenna noted symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.
There was no neurological deficit in either upper limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
MOVEMENTS RANGE EXHIBITED Flexion 20% restriction Extension 20% restriction Rotation to the right 20% restriction Rotation to the left 20% restriction Lateral bending to the right 20% restriction Lateral bending to the left 20% restriction
Neurological tests
Reflexes
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal
Sensation
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
| LEFT (cm) | RIGHT (cm) | |
| UPPER ARM | 38 | 38 |
| FOREARM | 28 | 28 |
Muscle wasting
Muscle power
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL TA 5/5 NORMAL NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Upper extremity
There was no muscle wasting and reflexes, sensation and power were intact.
Right shoulder
Measurement
Reference
(4th ed.)Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension 50° Figure 38 (43) 50° 0 Adduction 50° Figure 41 (44) 50° 0 Abduction 180° Figure 41 (44) 180° 0 Internal Rotation 90° Figure 44 (45) 90° 0 External Rotation 90° Figure 44 (45) 90° 0 Total 0 Goniometer measured
Left shoulder
Measurement
Reference
(4th ed.)Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension 50° Figure 38 (43) 50° 0 Adduction 50° Figure 41 (44) 50° 0 Abduction 180° Figure 41 (44) 180° 0 Internal Rotation 90° Figure 44 (45) 90° 0 External Rotation 90° Figure 44 (45) 90° 0 Total 0 Goniometer measured
It was noted Ms Khalil had a full range of left shoulder movement.
Lumbar spine
On ballottement there was muscle tightness and spasm involving the lower lumbar spine between L4 to S1, predominantly in the left paravertebral gutter.
There was no neurological deficit in either lower limb.
There was no evidence of non-verifiable radiculopathy as any distal symptoms did not follow a specific nerve root.
Power, reflexes and sensation were all intact.
Provocative testing for sacroiliac joints was also negative.
Medical Assessor Kenna noted an asymmetric range of movement.
MOVEMENTS RANGE EXHIBITED Flexion 50% restriction Extension 10% restriction Rotation to the right 10% restriction Rotation to the left 30% restriction Lateral bending to the right 50% restriction Lateral bending to the left 30% restriction
Neurological tests
Reflexes
REFLEX LEFT RIGHT KNEE JERK Normal Normal ANKLE JERK Normal Normal
LEFT RIGHT Sciatic nerve stretch (straight leg raise) Normal Normal Femoral nerve stretch (prone knee bending) Normal Normal
Sensation
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
No muscle atrophy was apparent
LEFT (cm) RIGHT (cm) THIGH (measured 10cm above the superior pole of the patella) 54 54 CALF (at maximum circumference) 43 43
Muscle power
LEVEL MOTOR POWER LEFT RIGHT L3 5/5 NORMAL NORMAL L4 5/5 NORMAL NORMAL L5 5/5 NORMAL NORMAL S1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Muscle atrophy
THIGH LEFT = RIGHT CALF LEFT = RIGHT
No unilateral muscle atrophy was present.
Dural tension tests
TEST RIGHT LEFT PRONE KNEE BEND Normal Normal STRAIGHT LEG RAISE Normal Normal SLUMP Normal Normal
RADIOLOGY
CT cervical spine, 3 November 2020
This shows disc osteophytic changes in both C5/6 and C6/7 levels, moderate to severe central canal narrowing but no foraminal narrowing.
MRI Lumbar spine, 12 June 2019
Age-related degenerative features most conspicuous at L5/S1. At that level, a left paracentral annular tear is associated with a low-grade disc bulge which may be impinging on the left S1 nerve root in some positions. There is no visible associated herniation although small osteophytes contribute to low-grade foraminal encroachment. At other levels, there is no disc herniation or significant bony stenosis and no focal neural impingement.
Although there is the presence of a left paracentral tear on MRI of 12 June 2019, clinical examination now indicates whilst there is a presentation of central lower back pain radiating into the left lower extremity, the neurological examination is normal and there is no evidence of radiculopathy involving the lumbar spine and the left lower extremity.
FINDINGS
Mrs Khalil is a 49 year old IT consultant, who sustained soft tissue injuries to the cervical and lumbar spine and left shoulder in the accident on 24 March 2019.
Cervical spine
Ms Khalil has pain and stiffness of the cervical spine but no significant clinical findings, no muscle guarding or spasm, symmetrically reduced range of movement, no documented neurological impairment and no indication of a non-verifiable radicular complaint. In accordance with chapter 3 of the AMA 4 Guides Ms Khalil would be assessed as DRE cervicothoracic category I with an assessment of 0% WPI.
Left shoulder
Ms Khalil only complained of localised discomfort to the left shoulder but had a full range of left shoulder movement. There was no muscle wasting and reflexes, sensation and power were intact. In accordance with chapter 3.1 of the AMA 4 Guides Ms Khalil has sustained a 0% WPI for the left shoulder.
Lumbar spine
In relation to the lumbar spine there may have been pre-existing asymptomatic facet joint degenerative change at L5/S1, however, subsequent to the accident Ms Khalil developed lower back pain with left buttock and left lower extremity symptoms. It was considered this was related to a disc bulge at the L5/S1 level associated with the left paracentral annular tear, with the claimant presenting clinically with asymmetric range of movement, a degree of muscle spasm involving the lower lumbar spine, but no neurological deficit involving either lower extremity.
Clinical examination confirmed the absence of radiculopathy. There was no loss or asymmetry of reflexes, straight leg raise and sciatic nerve tension tests were negative, there was no evidence of muscle atrophy or decreased limb circumference, no evidence of muscle weakness anatomically localised to the appropriate spinal nerve root, and no reproducible sensory loss localised to an appropriate spinal nerve root distribution.
Nevertheless, there was asymmetric range of movement secondary to the lumbar spine, associated muscle spasm and guarding, and referral into the left lower extremity which also could be interpreted as a non-verifiable radiculopathy. In accordance with the AMA 4 Guides and table 72 on page 110 the lower lumbar spine is classified as DRE lumbosacral category II resulting in a 5% WPI. This is consistent with the assessment of Dr Meakin.
The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows:
| Body Part or System | AMA Guides/ The 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 DRE I | Ch 3 pages 103-105 Table 73 AMA 4 Guides | Yes | 0 | 0 | 0 |
| 2 | Left shoulder | Ch 3 pages15-74 Tables 1-34 AMA 4 Guides | Yes | 0 | 0 | 0 |
| 2 | Lumbosacral Spine DRE II | Ch 3 pages 101-103 Table 72 AMA 4 Guides | Yes | 5 | 0 | 5 |
Ms Khalil has sustained a 5% WPI in respect of injuries caused by the accident.
Apportionment is not applicable.
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