Khudhair v QBE Insurance (Australia) Limited
[2023] NSWPICMP 394
•16 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khudhair v QBE Insurance (Australia) Limited [2023] NSWPICMP 394 |
| CLAIMANT: | Nawal Khudhair |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 16 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; injury on 3 February 2019; front seat passenger injured by rear end collision; assessment of permanent impairment of various body parts; claimant re-examined; absence of early complaint of right-side symptoms in notes and claim form; AAI Ltd v McGiffen and Bugat v Fox referred to; right leg injury caused by motor accident not medically plausible; inconsistency in right shoulder movement; assessed by analogy and with reference to principles in Nguyen v Motor Accidents Authority; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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 S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel confirms the certificate dated 12 October 2022. |
REASONS
BACKGROUND
On 3 February 2019 Ms Nawal Khudhair (the claimant) was injured in a motor accident. Ms Khudhair was a front seat passenger which was rear ended by the insured vehicle.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Khudhair any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute is whether Ms Khudhair’s “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 MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The following injuries were referred for assessment:
- cervical spine;
- lumbar spine;
- left arm including elbow, shoulder and hand;
- Right arm, hand and shoulder;
- left hip and knee, and
- right hip and knee.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Woo and dated 12 October 2022 (the medical assessment).[3] The Medical Assessor assessed the degree of permanent impairment at 0%.[4] The details of that assessment are set out later in these Reasons.
THE REVIEW
[3] Insurer’s bundle, p 3.
[4] Claimant’s bundle, p 575.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were 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.[6]
[6] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 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).
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 Merit Reviewer or a Medical Assessor.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
ASSESSMENT UNDER REVIEW
[10] See section 3B(2) of the Civil Liability Act 2002.
The Medical Assessor noted inconsistency on presentation and exaggeration of symptoms with “self-imposed guarding”. He found that the motor accident caused soft tissue injuries to the cervical and lumbar spines, right arm, hand and shoulder and right hip and knee. The Medical Assessor found that the claimant did not sustain injuries to the left arm, elbow, hand, shoulder, hip and knee.
The Medical Assessor found that the current symptoms were similar to those documented by Dr Megaly since 2011 and concluded:
“Her current impairment had [sic] remained the same prior to and after the motor accident on 03/02/2019.”
The Medical Assessor then assessment current impairment at 0% for all body parts, made no deduction for pre-existing condition and assessed impairment due to the motor accident at 0%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The pre-accident records of the general practitioner (GP) refer to:
(a) severe left knee pain in March 2010;
(b) severe pain in the back in August 2010;
(c) onset of neck and bilateral hip pain in October 2010;
(d) tingling and numbness in both hands and legs in October 2010;
(e) pain and numbness in the right hand in November 2010;
(f) severe back pain with pain in the left thigh radiating along the left leg in January 2011;
(g) severe pain in the neck in February 2011;
(h) severe pain in the left iliac fossa in July 2011;
(i) bursitis in the right hip in October 2011;
(j) severe left shoulder and neck pain in February 2012;
(k) severe pain in the right hip in August 2012;
(l) severe pain in both hands and legs in November 2012;
(m) severe pain in the feet in December 2012;
(n) severe neck and back pain radiating to the left leg in February 2013;
(o) severe bilateral hand pain in April 2013;
(p) severe pain all over the body in April 2013;
(q) severe pain in both feet and the back in June 2013;
(r) severe pain in back in December 2013;
(s) severe pain in left foot in November 2014;
(t) pain in legs in February 2015;
(u) severe bilateral leg pain in July 2015;
(v) swelling in both hands in September 2015;
(w) pain all over the body in March 2016;
(x) ankle pain and swelling in March 2016;
(y) bilateral leg pain and swelling in October 2017;
(z) Right knee pain in September 2018;
(aa) neck pain in September 2018;
(bb) left calf and heel pain and swelling in left ankle in November 2018, and
(cc) severe pain in both ankles in December 2018.
An ultrasound of the left heel dated 10 December 2012 showed a small spur and acute planter fasciitis involving that body part.
An X-ray of the thoracic and lumbar spines dated 5 March 2013 show slight degenerative change with preserved height. The L5/S1 facet joints showed marked degenerative osteoarthritic changes.[11]
[11] Claimant’s bundle, p 206.
A CT scan of the left ankle and foot showed planter fasciitis with no evidence of any bone or joint abnormality.[12]
[12] Claimant’s bundle, p 302.
A CT scan of the thoracic and lumbar spine dated 24 January 2014 showed minor spondylotic changes marked facet arthropathy was shown on the right side at L5/S1 with arthritic changes throughout the thoracic spine. From T6 to T12 with wedging at T7 and T9 consistent with old insufficiency fractures.[13]
[13] Claimant’s bundle, p 321.
Bilateral knee X-ray dated 24 October 2018 refer to a clinical history of bilateral knee pain. The X-ray was described as normal.[14]
[14] Claimant’s bundle, p 323.
Post-accident records
Dr Susan Megaly, GP, on 6 February 2019 noted the motor vehicle accident with the claimant mentioning severe pain in the neck, left iliac fossa, and both legs.[15]
[15] Claimant’s bundle, p 104.
On 15 February 2019 the GP noted complaints of pain in the left inguinal area, left foot and anxious and stress since the motor accident.
On 19 February 2019 the GP noted severe lower left groin pain which was not getting better.
The claim form dated 19 February 2019[16] refers to the rear end collision which caused the claimant’s car to “spin”. The injuries sustained in the motor accident were described as “stomach pain” and “pain left side of body (left leg)”.
[16] Claimant’s bundle, p 8.
On 7 March 2019 the GP noted complaints of severe pain in both joints which increased with any walking or doing any effort.
On 21 March 2019 the GP noted severe pain in the left leg with swelling, pulled muscle in the lower leg up to the knee and ongoing anxiety and stress.
On 29 March 2019 the GP noted recurrent headache with neck pain. On 12 April 2019 the GP noted that the claimant had been seeing the physiotherapist for back and left thigh pain.
On 31 May 2019 the physiotherapist noted ongoing pain and stiffness in the neck, left shoulder and back area. Other restrictions included restriction in range of motion in the right hip and right knee.
A certificate of capacity dated 3 June 2019 noted mechanical neck pain with radiation to left upper limb, left calf muscle tear, bursitis of the right knee, left groin pain, bilateral wrist pain and mechanical low back pain with radiation to the left lower limb.[17]
[17] Claimant’s bundle, p 437.
A referral to Dr Nair dated 3 June 2019 referred to ongoing neck pain radiating to the left upper limb, lower back pain radiating to the left lower limb and left calf strain.[18]
[18] Claimant’s bundle, p 448.
On 7 June 2019 the physiotherapist noted ongoing symptoms in the neck, back and left leg.[19]
[19] Insurer’s bundle, p 89.
A report from Dr Nair dated 12 June 2019 noted some axial cervical and lower back pain radiating into both the left upper and lower extremities and recommended an MRI scan.[20]
[20] Claimant’s bundle, p 457.
On 17 June 2019, Dr Jonathan Herald, orthopaedic surgeon, noted the motor accident when the vehicle was struck at high speed on the driver’s side of the passenger door area and the car was spun a few times. the doctor noted onset of neck and back pain with some numbness and tingling radiating to the right index to fingers as well as elbow pain radiating to both wrists with left calf pain and right knee pain.[21]
[21] Claimant’s bundle, p 363.
Examination noted tenderness over the cervical spine as positive Spurling’s test and right upper limb to hand with tenderness over the greater tuberosity with positive impingement signs and full range of motion of her shoulder. There was tenderness over the medial epicondyle whilst the wrist was non-tender. Examination of the knees showed tenderness over the right knee with effusion and pain over the medial joint line and a positive medial McMurray’s test.
The doctor recommended an MRI scan of the cervical spine in light of the right upper limbs symbols symptoms as well as an MRI scan of the right shoulder and elbow.
A full spine X-ray dated 16 July 2019 showed normal cervical spine, moderate to severe thoracic kyphosis and moderate degenerative changes at T11/T12. The X-ray of the lumbar spine showed facet joint arthropathy at the L5/S1 levels with mild degenerative disease of the sacroiliac joints.[22]
[22] Claimant’s bundle, p 291.
The X-ray of the right knee dated 16 July 2019 showed either osteochondral defect or grade 4 chondromalacia involving the patellofemoral compartments. The MRI scan of the right knee showed grade 4 chondromalacia.[23]
[23] Claimant’s bundle, p 373.
An ultrasound of the left calf dated 19 July 2019 was normal. An X-ray of the right shoulder and right elbow showed no acute fracture and normal alignment.[24]
[24] Claimant’s bundle, p 368.
The MRI scan of the cervical spine dated 19 July 2019 noted a clinical history of right upper limb radiculopathy and showed annual fissure and associated small central disc protrusion at C5/6 and small central disc osteophytes complex at C6/7.[25]
[25] Claimant’s bundle, p 371.
The MRI scan of the lumbar spine dated 19 July 2019 showed mild disc degeneration at L5/S1 level and diffuse disc bulges at L4/5 and L5/S1 levels with annual fissure at the L5/S1 level. There was no significant foraminal stenosis.[26]
[26] Claimant’s bundle, p 464.
A right shoulder ultrasound dated 29 July 2020 showed tendinosis in the supraspinatus and long head of biceps.[27]
[27] Claimant’s bundle, p 544.
On 12 August 2019, Dr Herald noted continuing right knee pain with tendon tenderness over the cervical spine and a mild positive sperlings test. The right knee showed some retropatella irritability and patella maltracking.[28] The doctor recommended anti-inflammatory medication and physiotherapy.
[28] Claimant’s bundle, p 497.
On 21 August 2019 Dr Nair noted that the claimant continued to be troubled by lower back and right gluteal symptoms noting the MRI scan showed a broad-based disc herniation L5/S1. The doctor recommended an MRI scan of the right hip.[29]
[29] Claimant’s bundle, p 473.
On 16 October 2019 Dr Nair noted the claimant continue to have right groin and gluteal symptoms and that the MRI scan of the right hip showed mild chondromalacia. The doctor recommended a right anaesthetic injection.[30]
[30] Claimant’s bundle, p 471.
The MRI scan of the right shoulder dated 31 October 2019 showed biceps tendinosis, supraspinatus tendinosis and partial-thickness bursal side tear.[31]
[31] Claimant’s bundle, p 372.
On 11 November 2019 Dr Herald noted shoulder and knee pain and recommended physiotherapy and anti-inflammatory tablets. The doctor noted that the MRI scan showed a partial-thickness rotator cuff tear and suggested a subacromial injection of cortisone.[32]
[32] Claimant’s bundle, p 361.
On 3 February 2020, Dr Herald noted that the claimant was suffering from chondromalacia patellae in the right knee and a rotator cuff tear in the right shoulder.[33] The doctor referred the claimant for a cortisone injection noting she had undergone only sporadic physiotherapy.
[33] Claimant’s bundle, p 180.
An X-ray of the right hand dated 4 March 2020 right wrist and hand.[34] A right-hand ultrasound raise the suspicion of a fracture at the distal second metacarpal. A right elbow ultrasound showed deepening of the ulnar nerve with peripheral oedema consistent with focal neuritis.
[34] Claimant’s bundle, p 204.
The CT scan of the right hand dated 5 March 2020 showed no bony injury or changes in the wrist or hand noting there was a notch in the second metacarpal head which may represent an erosion which could mimic a step at the bone surface.[35]
[35] Claimant’s bundle, p 206.
A bone scan dated 23 June 2020 showed degenerative changes including active facet joint inflammation at L5/S1 on the right and left planter fasciitis. There was no evidence of active facet joint inflammation in the cervical spine.[36] Spect uptake was also consistent with arthropathy involving the metacarpophalangeal joints and bilateral scapholunate joints of the wrists.
[36] Claimant’s bundle, p 320.
Reports from Dr Guirgis dated 16 July 2020 and 17 September 2020 noted post-traumatic mechanical derangement of the cervical spine involving the C5/6 and C6/7 levels, rotator cuff syndrome of the right shoulder with impingement, traumatic focal neuritis involving the ulnar nerve of the ulnar cubital tunnel, post-traumatic right knee symptoms with aggravation of degenerative changes and post-traumatic changes of the right hip joint.[37]
[37] Claimant’s bundle, p 378.
Qualified opinions
Dr Mathew Giblin, orthopaedic surgeon, was qualified by the claimant and provided a report dated 22 September 2021.[38] The doctor noted that the claimant was involved in the motor accident when the car was spun around three times causing the development of neck, right shoulder, right elbow, low back and right knee pain.
[38] Claimant’s bundle, p 21.
On examination Dr Giblin found muscle spasm and restriction of movement in the cervical spine with no significant peripheral neurological science. Examination of the left shoulder showed full range of movement with restriction of movement in the right shoulder examination of the right elbow showed tenderness over the medial epicondyle with full range of movement.
Examination of the lumbar spine showed restricted straight leg raising on the right-hand side with no significant peripheral neurological signs and some anxiety surrounding this part of the examination. Examination of the right knee showed full range of movement with no wasting although there was some retropatella crepitus.
Dr Giblin opined that the injuries were consistent with the motor accident described causing an aggravation of underlying degenerative changes of the cervical and lumbar spines, right rotator cuff disease, medial epicondylitis of the right elbow and chondromalacia patellae of the left knee.
Dr Giblin assessed the impairment of the cervical spine at 5%, the lumbar spine at 5%, the right shoulder at 7%, the right elbow at 0% and the right knee 2%. This provided an overall impairment of 18%.
Dr Mark Burns, occupational physician, was qualified by the insurer and provided a report dated 17 May 2021.[39] The doctor noted a history of immediate pain in the right shoulder, right knee, right hip, neck and low back. Dr Burns noted that the initial nine consultations with the GP related to the neck, back and left side of body and there was no mention of any right-sided injuries. The claimant reported to Dr Burns that she believed the right sided pain came on when she was turning around and twisting to see whether her son was okay in the back seat immediately after the motor accident.
[39] Insurer’s bundle, p 383.
Dr Burns recorded a history from the claimant of no previous injuries and specifically that you denied previous pain in the neck, back, shoulders, knees or hands. The doctor noted that this history contrasted with the notes of the GP which included multiple references to reports pain in various parts of the body including bilateral X-rays in October 2018, some four months before the motor accident.
Examination of the cervical spine revealed right-sided tenderness with symmetric laws of motion, normal neurological examination and marked pain behaviour. Examination of the lumbar spine revealed a significant increase in lumbar lordosis, loss of symmetrical range of motion and reduce straight leg raising with the negatives sciatic stretch test. Neurological examination of both lower limbs reveals normal reflexes, power noted to be normal although on formalised testing there was decreased parrying the right leg which do not follow a myotomal pattern. Examination of the left shoulder revealed no tenderness with global tenderness on the right side and inconsistent range of movement on the right side with submaximal effort. Examination the right elbow revealed global reports pain with a relatively normal range of motion. There was mild swelling in the right hand with restricted range of movement of the arm throughout the examination.
Dr Burns opined that the claimant’s history was unreliable because of the conflict with the clinical notes of the GP report of no previous pain or discomfort involving multiple body parts prior to the motor accident. The doctor opined that the claimant probably sustained soft tissue injuries to the cervical and lumbar spine and potential injury to the left shoulder, left hip and left knee noting that there was no evidence of complaint in the period after the motor accident that she sustained injuries to the right side of body.
Dr Anthony Samuels, psychiatrist, was qualified by the insurer and provided a report dated 2 June 2021.[40] it is unnecessary to refer to reporting any detail save as to mention the doctor’s recorded history that the claimant stated that she did not have any prior mental health issues. The doctor considered the claimant unreliable as that history contradicted the clinical notes of the GP. He however opined that the motor accident may have exacerbated the pre-existing depressive disorder.
[40] Insurer’s bundle, p 393.
SUBMISSIONS
Claimant’s submissions dated 25 November 2021[41]
[41] Claimant’s bundle, p 4.
The claimant referred to the variety of injuries and treatment since the motor accident. She submitted that injections to the right knee and shoulder did not proceed upon “the recommendation of the treating GP”. Surgery to the right shoulder was recommended but did not proceed due to COVID and concerns that the surgery would limit the ability to care for her daughter.
The claimant submitted that her impairment was greater than 10%.
Claimant’s submissions dated 9 November 2022[42]
[42] Claimant’s bundle, p 591.
These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the Medical Assessor failed to comply with clause 1.41 [sic 6.41] of the Guidelines by failing to provide her with an opportunity to respond to observations of inconsistencies.
The claimant further submitted that the Medical Assessor failed to refer to any objective evidence of pre and/or post-accident impairment in accordance with clause 1.31 to 1.34 [sic 6.31 to 6.34] of the Guidelines.
The claimant submitted that the conclusion of 0% impairment for the cervical spine was inconsistent with the preponderance of the claimant’s medical evidence and otherwise not calculated in accordance with the guidelines given the findings made by the Medical Assessor including non-verifiable radicular complaints to the right-hand.
The claimant noted that the Medical Assessor found non-verifiable radicular complaints in the right leg and failed to assist the claimant in accordance with the Guidelines and otherwise was inconsistent with the preponderance of the claimant’s medical evidence.
The claimant noted that the Medical Assessor noted restriction of range of movement of the right shoulder and tenderness over the medial and lateral epicondylitis of the right elbow or prominent on the lateral side with restricted range of movement. It was submitted that the assessment of 0% was inconsistent with these findings.
The claimant made similar submissions for the right knee noting that it was plausible at the range of movement would deteriorate with time and effort.
Insurer’s submissions dated 11 January 2022[43]
[43] Insurer’s bundle, p 2.
The insurer noted that the original claim form only referred to injuries to the left side of the body, including the left leg and stomach pain.
The insurer referred to the available medical evidence which showed long-standing pre-accident problems for both physical and psychological conditions. The insurer referred to various evidence including a CT scan in January 2014 which showed widespread degenerative changes and various complaints made to the GP.
The insurer submitted that Dr Giblin did not receive a history of prior medical problems. It noted that Dr Mark Burns provided a report dated 17 May 2021 when he noted various complaints. Dr Burns refer to the GP records which suggested onset of right elbow and hand problems occurred sometime later when the claimant was doing activities at home.
Dr Burns considered that as the claimant was a front seat passenger, injuries would likely have occurred to the left side as opposed to the right side as alleged. He considered that it was more likely than not that the left shoulder and left knee would have been injured and accepted these as soft tissue injuries.
The insurer noted that the claimant denied any pre-accident issues to both Dr Burns and Dr Samuels.
The insurer submitted, for the above reasons, that the claimant was an unreliable historian and that her statement required objective corroboration.
Insurer’s submissions dated 30 November 2022[44]
[44] Insurer’s bundle, p 16.
These submissions were filed opposing the application to review the medical assessment.
The insurer submitted that its position was clear, and consistency was a major issue in the medical dispute.
The insurer submitted that the Medical Assessor provided a proper basis for these findings in respect of the assessment of the cervical and lumbar spines. Further the assessor determined that he could not rely upon range of motion readings in respect of the upper extremity and utilised its discretion in determining the assessment of impairment.
RE-EXAMINATION
Ms Khudhair was examined by Medical Assessor Moloney of the Panel. The examination report is as follows:
“Mrs Khudhair attended the medical suite at PIC on 9 August 2023. She was accompanied by her husband who remained in the waiting room except to help her dress. An interpreter, Zahraa Mourtada, was in attendance throughout the examination and interview.
Pre-accident history
Mrs Khudhair states that she lives with her husband and 2 children. She migrated from Iraq in 2005. She was not working at the time of the accident but was a full-time carer for her disabled daughter aged 29.
Mrs Khudhair stated that she had had only minor injuries prior to the accident which were mainly due to lifting her disabled daughter. I brought to her attention that there had been numerous GP consultations for severe pain in her knees, legs and both ankles in the year prior to the accident. She further stated that these were insignificant findings.
History of motor accident
On 3 February 2019, Mrs Khudhair was a front seat passenger in a car driven by her husband with her son in the rear seat. She was wearing a seatbelt at the time but airbags were not deployed. She stated that the car was hit on the rear passenger side which caused the car to spin around 3 times. Mrs Khudhair was able to get out of the car and states that she was initially worried about any injury to her son in the back seat. The ambulance and police did not attend the scene of the accident and her husband drove the car home and was later repaired.
History of symptoms and treatment following the motor accident
Mrs Khudhair consulted her GP, Dr Megaly about 3 days after the accident who prescribed analgesics and referred her for radiological studies of her neck and legs and referred her for physiotherapy. She was also referred to Dr Nair, an orthopaedic surgeon who recorded neck and low back pain. He also organised an MRI of the lumbar spine. Dr Nair noted broad-based disc herniation at the L5/S1 level and then an MRI of the right hip was organised.
On 17 June 2019, Mrs Khudhair was referred to another orthopaedic surgeon Dr Herald. He diagnosed the right knee medial meniscal tear, cervical prolapse with right upper limb radiculopathy and secondary right shoulder impingement syndrome and right elbow medial epicondylitis. The GP also referred to Dr Guirgis, another orthopaedic surgeon, he added injuries to the right ulnar nerve and right hip joint.
Mrs Khudhair stated that she had soreness in the right shoulder from the time of the initial accident and that it wasn’t investigated because of her phobia with MRI machines. The treating physiotherapist recorded stiffness in the neck and left shoulder pain but Mrs Khudhair states that it was the right shoulder that was treated.
Mrs Khudhair had a left carpal tunnel release operation in 2021 which was not related to the motor vehicle accident and was only partially successful.
Current symptoms
Mrs Khudhair states that she has a constant pain in the right side of the neck radiating to the right shoulder down to the level of the elbow. This is aggravated if she elevates arms above 90°. The pain wakes her at night if she lies on the right shoulder. She stated there is a diffuse pain around the entire right shoulder region which is worse on some days and aggravated by cold weather. She is able to walk for about 10 minutes which is limited by right knee pain. The left upper and lower limbs are asymptomatic but get fatigued due to increased use. She is able to drive short distances of 5 to 10 minutes and states that her husband and son do the heavy housework duties and she gets other assistance with cleaning.
Current treatment
At present, Mrs Khudhair has a Mobic 15 mg One-A-Day and sometimes alternates this with a Voltaren tablet. She also applies Voltaren gel to the shoulder and neck. If the pain gets worse, she takes a Panadeine Forte on an average One-A-Day and Targin 15/7.5 mg One-A-Day. She told me that the Targin was to treat her depression. A Nexium tablet is One-A-Day for reflux and she takes other tablets for hypertension and hypercholesterolaemia.
No manual therapy is being undertaken at present as it became too expensive and was ceased about one year ago. She consulted her GP when needed and has no specialist appointments for the near future.
No radiological investigations were available for inspection.
Clinical examination
Mrs Khudhair walked into my rooms with a normal gait and sat comfortably during the interview. She states that she is right-handed. The height was 153 cm and weight 80kg.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension was 70% of expected range, side bending and rotation were 60% of expected range with no asymmetry. On palpation there was tenderness over the upper cervical spine and right trapezius muscle but no guarding or spasm was noted in the cervical musculature.
On neurological examination the upper limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent. The circumferences of the upper arms 26 cm bilaterally (10 cm above the olecranon process) and at the maximum circumference of the forearms 22 cm bilaterally. On testing for sensation there was a global decrease in sensation above the right elbow with tenderness over the medial elbow region and in particular the cubital fossa but there were no sensory changes in the ulnar nerve distribution or muscle weakness. Tinel’s test was negative over the cubital fossa. This was not in a dermatomal distribution.
Lumbar spine
Mrs Khudhair walked with a normal gait and was able to walk on her heels and toes with some difficulty due to poor balance. Squatting was very limited for the same reason. On testing range of movement, flexion/extension was 50% of expected range as was rotation with no asymmetry. On palpation there was mild tenderness over the lower lumbar spine and sacroiliac joints but no guarding or spasm was noted in the lumbar musculature. Straight leg raise when lying was 70° bilaterally and 80° when seated with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 42 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 35 cm bilaterally.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. On palpation there was tenderness over the right acromioclavicular joint.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
70°/40°/60°
170°
Extension
20°/30°
50°
Adduction
30°/20°
50°
Abduction
70°/40°/60°
170°
Internal Rotation
70°
90°
External Rotation
70°
90°
Elbow
On testing range of movement, flexion of the right elbow is 120° and 130° on the left. There was 0° extension bilaterally and pronation/supination was 80° bilaterally with no restriction in range of movement. On palpation there was tenderness over the right medial elbow joint.
Mrs Khudhair stated that she had developed pain in the right hand and elbow about a year previously which was not related to the accident and was treated by cortisone injection. There was a full range of movement of the wrists, fingers and thumbs. There was no tenderness or pain in the left arm, left shoulder, left elbow, left hand, left hip and left knee. All of these joints had a normal range of movement and Mrs Khudhair stated that she did not injure these joints in the subject accident.
Hips
On palpation, there was tenderness over the right iliac crest but no tenderness over the greater trochanter.
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
120°
Extension
0°
0°
Adduction
20°
30°
Abduction
30°
30°
Internal Rotation
30°
30°
External Rotation
40°
40°
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
130°
Extension
0°
0°
On inspection of the knees no effusions were observed, and no ligament laxity was noted on testing. On palpation there was tenderness at the insertion of the quadriceps muscle into the patella. On passive movement no crepitus was detected.
Comments
I explained to Mrs Khudhair that due to inconsistency when I was testing range of movement of the right shoulder and in comparison, to other medical examination that it was not a reliable method to determine impairment. I stated that the review panel would have to look at alternative methods rather than range of movement to assess any impairment of the shoulders. She stated that she understood this via the interpreter.
The most appropriate method to assess the right shoulder is by analogy due to inconsistency on testing range of movement of the right shoulder at the time of my examination and in comparison, to other examiners. There was tenderness over the right acromioclavicular joint. Referring to table 18 of AMA 4th edition the acromioclavicular joint is 15% WPI. In table 19 mild crepitation would be a reasonable level of impairment which is 10% of the joint impairment. That is 10% of 15% is 1.5% and can be rounded up to 2% WPI.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[45] The Panel adopts the examination findings of Medical Assessor Moloney and adds the following brief reasons.
[45] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[46] and Insurance Australia Ltd v Marsh.[47]
[46] [2021] NSWCA 287 at [40], [41] and [45].
[47] [2022] NSWCA 31 at [11], [21], [64].
The Panel notes the claimant’s significant pre-existing health complaints summarised earlier in these Reasons.[48]
[48] See [19]-[24].
We accept that it is medically plausible that the claimant suffered soft tissue injuries to the cervical and lumbar spine caused by the modest impact. The assessment undertaken by Medical Assessor Moloney does not establish sufficient signs for DRE Category II.
There are otherwise no signs of radiculopathy and no “non-verifiable signs” because the complaint does not follow a “the distribution of a specific nerve root”.[49] Both the lumbar spine and cervical spine are assessed as DRE Category I.
[49] See the definition of “non-verifiable radicular complaints” in Table 6.8 of the Guidelines.
The examination findings of Medical Assessor Moloney show there was no tenderness or pain in the left arm, left shoulder, left elbow, left hand, left hip and left knee. All these joints had a normal range of movement and there is otherwise no assessable impairment.
The claim form dated 19 February 2019 referred to the rear end collision which caused the claimant’s car to “spin” and references pain in the left side of body.
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[50] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue. The absence of complaint of right sided symptoms to the right leg, knee and hip indicate that these body parts were not injured in the motor accident.
[50] [2014] NSWSC 888 at [31]-[32].
The nature of the motor accident is otherwise inconsistent with injury to a front seated passenger sustaining soft tissue symptoms to the right side.
We otherwise note that there is an absence of early recorded complaint of right sided symptoms. The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[51]
[51] [2016] NSWCA 229 at [64]-[66].
Due to the absence of early recorded complaint to any doctors, the absence in the claim form and the lack of explanation of how any part of the right leg was injured, we do not accept that the motor accident caused injury to that body part.
Our comments above cast doubt on the proposition that the motor accident otherwise caused injury to the right shoulder. However, the examination findings of Medical Assessor Moloney provide a sufficient basis that there was some restriction of movement in the right shoulder caused by the neck injury.[52] In these circumstances it is medically plausible that the cervical spine injury has caused some loss of range of movement of the right shoulder.
[52] See Nguyen v Motor Accidents Authority of NSW [2011] NSWSC 351.
Given the claimant’s inconsistency in range of right shoulder movement before the Medical Assessor, the assessment has been made based on the reasons outlined in the examination report. In this respect the claimant had inconsistent range of motion in four types of movement of the shoulder on repeated testing. This inconsistency was brought to the claimant’s attention by the Medical Assessor.[53] Accordingly, range of movement of the shoulder should and could not be used as a valid parameter for assessing impairment.[54] The Medical Assessor has otherwise indicated, in his discretion, the rationale for the assessment.
Pre-existing or subsequent injuries causing impairment
[53] See paragraph 6.41 of the Guidelines.
[54] See paragraph 6.50 of the Guidelines.
Whilst there are recorded complaints of significant pre-existing symptoms, given the assessment of impairment, it is unnecessary to make any deduction.
CONCLUSION
The certificate is confirmed as the Panel have also assessed impairment at not greater than 10%.
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