Labib v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 69
•3 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Labib v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 69 |
| CLAIMANT: | Samir Labib |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Ian Cameron |
| DATE OF DECISION: | 3 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 12 March 2019 from a rear end car accident; the dispute related to the assessment of permanent impairment under of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; lumbar spine assessed at diagnosis related estimate (DRE) II; no deduction made for pre-existing condition as insurer not satisfied that there was objective evidence of pre-existing impairment; no discrete injury to shoulders; inconsistent movement on examination; lack of movement assessed by analogy; Held – claimant assessed at 7% permanent impairment; original assessments revoked. |
| 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 Panel revokes the certificate dated 7 July 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment not greater than 10%. |
REASONS
BACKGROUND
Mr Samir Labib (the claimant) suffered injury on 12 March 2019 when the insured vehicle ran into the rear of the claimant’s stationary vehicle.[1]
[1] Claimant’s bundle, p 26.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Labib any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute is whether Mr Labib’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.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The following injuries were referred for assessment:
· Cervical spine – muscular/discal injury with radiculopathy/musculoligamentous injuries;
· Lumbar spine – muscular/discal injury with radiculopathy/ musculoligamentous injuries;
· Left shoulder – muscular/tendon injury with radiculopathy, and
· Right shoulder - muscular/tendon injury with radiculopathy.
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.[3]
[3] 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 Truskett and dated 7 July 2022. The Medical Assessor assessed the degree of permanent impairment at 1%. The details of that assessment are set out later in these Reasons.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] 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.[5]
[5] Section 7.26(5) of the MAI Act; Claimant’s bundle, p 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 (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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 new assessment of all matters with which the medical assessment is concerned.[8]
[8] 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.[9]
ASSESSMENT UNDER REVIEW
[9] See s 3B(2) of the Civil Liability Act 2002.
Medical Assessor Truskett provided a medical assessment dated 7 July 2022. The Medical Assessor found that the claimant suffered an aggravation of pre-existing soft tissue injuries to the lumbar spine and cervical spine with no evidence of shoulder injury. There was some limitation of left shoulder movement because of neck pain.
The Medical Assessor assessed the lumbar spine at 5% due to non-verifiable radicular complaints which pre-existed the accident. As this was a pre-existing condition the impairment due to the accident was 0%. The Medical Assessor assessed the cervical spine at 0% because there was no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.
The left shoulder was assessed at 1% due to restriction of movement from neck pain.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Home provided an assessment dated 10 December 2020.[10] The Medical Assessor concluded that the motor accident caused a soft tissue injury superimposed on degenerative changes in the cervical spine and aggravated
pre-existing lumbar spondylosis.[10] Claimant’s bundle, p 67.
The Medical Assessor found normal neurological examination in both the upper and lower extremities. The claim for pain management services and lawn mowing services was found to be reasonable and necessary and related to the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed comprehensive bundles of documents for the Panel’s consideration.
Pre-existing conditions
The claimant sustained injuries in a motor accident in October 2006. The following is only a brief summary of the extensive materials relating to the injuries suffered in that accident
On 14 November 2006 Dr Guirgis, orthopaedic surgeon, noted a variety of injuries including fractured sternum, lumbar derangement and left radicular irritation.[11]
[11] Insured bundle, p 70.
On 23 November 2006, Dr Teychenne opined[12] that the claimant suffered traumatic brain injury and required MRI scan of the neck and back looking for a disc prolapse. In December 2006 Dr Teychenne referred to numbness from the neck extending over the left and right regions with stabbing pain into the shoulders.[13]
[12] Insured bundle, p 71.
[13] Insured bundle, p 75.
In April 2007, Dr Dixon, orthopaedic surgeon, noted various injuries including lumbar stiffness with radicular complaint into the left lower limb.[14]
[14] Insured bundle, p 79.
The claim form dated 2 February 2007 notes the other vehicle turned right across the path of the claimnat’s vehicle resulting in a T-bone collision.[15] Injuries were reported to the low back, left shoulder, toes, left knee, sternum, and head including loss of memory.
[15] Insured bundle, p 10.
In May 2007 Dr Teychenne noted[16] both bilateral lumbosacral radiculopathy and bilateral cervical radiculopathy.
[16] Insured bundle, p 112.
The MRI scan of the lumbar spine dated 27 June 2007 showed advanced degeneration at L3/4 without nerve root compression. The lower discs were described as unremarkable.[17]
[17] Insured bundle, p 124.
In a report dated 10 December 2007, Dr Horsley, orthopaedic surgeon,[18] noted neck pain which had resolved, low back pain, left leg pain associated with fractures and sternum. The doctor observed that some of the complaints of symptoms did not “correlate” and that the prognosis was “poor as a result of his perception of multiple pains with no clear pathological cause for many of them”.
[18] Insured bundle, p 205.
A CT scan of the lumbar spine dated 21 January 2008[19] showed some disc space narrowing at L3/4 with no evidence of spinal stenosis or disc sequestration.
[19] Insured bundle, p 214.
Dr Bodel, orthopaedic surgeon, provided a report dated 21 January 2009.[20] The various assessment of permanent impairment included DRE II for both the lumbar and cervical spines for asymmetry and guarding.
[20] Insured bundle, p 270.
The clinical notes of the general practitioner refer to back and neck pain in 2009.[21]
[21] Insured bundle, p 415.
Assessor Wilding provided a certificate dated 9 February 2009 for the Medical Assessment Service.[22] The Assessor noted a non-organic component to the claimant’s presentation such as inconsistencies with left shoulder movement and straight leg raising. The impairment was assessed at 12% including 5% impairment of the lumbar spine base on non-verifiable radicular complaints down both lower limbs.
Contemporaneous records
[22] Insured bundle, p 280.
There was no ambulance called and the claimant did not attend hospital following the motor accident.
The claimant attended his general practitioner (GP), Dr Douaihy, on 15 March 2019. The doctor recorded:[23]
“On 12/3/19 in the afternoon and was hit from the back and was shaken and suffered a whiplash injury and felt immediate neck pain and low back pain
Since the accident he has been having ongoing neck pain and discomfort as well as low back pain assoc w stiffness and limitation of mvts
Has been interfering w sleep and ADLSs
He has increased his analgesia and will need more investigations and physiotherapy”.
[23] Claimant’s bundle, p 296.
An X-ray of the lumbar and cervical spine dated 15 March 2019 showed mild to moderate degenerative changes at C4/5 and C5/6 and facet joint degenerative changes in the lower lumbar levels.[24]
[24] Insurer’s bundle, p 400.
A certificate of capacity completed by Dr Douaihy on 22 March 2019 referred to cervical spine strain and lumbar spine strain caused by the motor accident.[25]
[25] Claimant’s bundle, p 172.
Subsequent clinical notes by the general practitioner refer to ongoing low back and neck pain.[26]
[26] Claimant’s bundle, pp 296 – 298.
Allied health recovery request dated 16 April 2019 referred to neck pain radiating to both hands bilaterally and lower back pain radiating to both legs down to the toes.[27]
[27] Claimant’s bundle, p 148.
On 27 May 2019 Dr Douaihy referred the claimant to Dr Maniam for back and neck pain after a motor accident.[28]
[28] Claimant’s bundle, p 94.
Dr Douaihy has provided a series of certificates stating that the claimant sustained a cervical spine strain and a lumbar spine strain caused by the motor accident. Lumbar disc disease was listed as a pre-existing condition.[29]
[29] Insurer’s bundle, pp 613 – 762.
Claim form
The claim form dated 26 March 2019 noted the motor accident and injuries to the lower back and neck.[30] The claimant noted that he had “existing injuries from other car accident in 2006”.
[30] Claimant’s bundle, p 26.
Specialist treating records
Dr Vijay Maniam, orthopaedic surgeon, provided a report dated 19 June 2019.[31] The doctor noted fluctuating symptoms in the neck and back with radiating pain into the upper and lower extremities. Examination did not show neurological symptoms in either the upper or lower limbs.
[31] Claimant’s bundle, p 143.
Dr Maniam recommended MRI scans, weight reduction and physiotherapy.
Dr Maniam provided a further report dated 30 July 2019 reviewing the MRI scan. The doctor noted degenerative changes and facet joint arthritis at multiple levels predominantly at C3/4, C6/7, L4/5 and L5/S1. Dr Maniam opined that the “problems are musculo-ligamentous with aggravation of degenerative changes”.[32]
[32] Claimant’s bundle, p 537.
In a report dated 28 October 2019 Dr Teychenne noted various symptoms including hand weakness, leg cramping and numbness and urinary infrequency. The doctor diagnosed an incomplete cervical cord lesion and recommended nerve conduction studies for the upper and lower limbs.[33]
[33] Claimant’s bundle, p 611.
On 18 November 2019 Dr Teychenne reported that nerve conduction tests of the upper and lower limbs were normal.[34] The doctor suggested neurophysiological assessment and again noted clinical evidence of an incomplete cord lesion. Dr Teychenne confirmed his opinion in subsequent reports.[35]
[34] Claimant’s bundle, p 618.
[35] Claimant’s bundle, p 643; p 648.
On 14 January 2020 Dr Stanowski, urologist, noted worsening urinary tract symptoms over the past several years.[36] The doctor recorded that the claimant is bothered by nocturia, five or six times per night but was otherwise “fit and well” and “exercises regularly and denies any major medical co-morbidities”.
[36] Claimant’s bundle, p 635.
Radiology
An MRI scan of the cervical and lumbar spine dated 25 July 2019[37] showed bony degenerative changes causing mild canal stenosis at C3/4 and C6/7 and mild degenerative changes at L4/5 and L5/S1 without nerve root compression.
[37] Claimant’s bundle, p 99.
Qualified opinions
Dr Denise Tong, physician, was qualified by the claimant and provided a report dated 31 August 2020.[38] Dr Tong noted that the claimant had chronic neck and back pain following the 2006 car accident. The doctor assessed non-verifiable signs in the low back, assessed at DRE II and verifiable radicular symptoms in the upper limbs which were assessed as DRE III. No assessments were made for any impairment of the upper limbs.
[38] Claimant’s bundle, p 46.
Dr Richard Powell, orthopaedic surgeon, provided a “joint independent” report dated
30 March 2020.[39] The doctor opined that the motor accident caused soft tissue injuries to the cervical and lumbar spines. Despite the claimant’s contrary submission in his letter dated 25 February 2021, Dr Powell found normal neurological examination of the upper limbs.[39] Claimant’s bundle, p 57.
Dr Powell provided a supplementary report dated 30 May 2020[40] when he opined that the need for lawn mowing assistance did not arise from the motor accident due to the pre-existing condition. In a further report Dr Powell opined that the claimant had received appropriate conservative management.[41]
[40] Insurer’s bundle, p 559.
[41] Insurer’s bundle, p 561.
Accident records
The police report referred to the motor accident as a minor traffic crash.[42]
[42] Insurer’s bundle, p 40.
The insured driver described the accident as:[43]
“Car in front took off from stationary position then stopped suddenly. I took off and didn’t stop in time.”
[43] Insurer’s bundle, p 35.
SUBMISSIONS
Claimant’s submissions dated 22 April 2021[44]
[44] Claimant’s bundle, p 16.
The claimant asserted that he had sustained injuries caused by the motor accident to the cervical spine, lumbar spine and both shoulders. He relied on the opinion expressed by Dr Tong dated 31 August 2020.
The claimant noted that Dr Powell had conducted a joint independent report assessing impairment at 10%. This report contained error for the reasons articulated in its letter dated 25 February 2021.
In its letter dated 25 February 2021, the claimant submitted that Dr Powell found radiculopathy and should have assessed him as DRE III for the cervical spine. It was also noted that Dr Powell failed to engage with the claimant’s submission that he had limitation of range of movement of the upper limbs based on the Nguyen principle.
In relation to any deduction for the lumbar spine, the claimant noted that the symptoms must be present as at the date of the motor accident.
Claimant’s submissions dated 3 August 2022[45]
[45] Claimant’s bundle, p 960.
These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the Medical Assessor failed to correctly apply the Guidelines in conjunction with AMA 4 when assessing the cervical spine and should have classified the claimant was at least DRE II. In this regard the claimant referred to the previous assessments made by Dr Tong and Dr Powell.
The claimant referred to cl 1.138 of the Motor Accident Permanent Guidelines in relation to assessing radiculopathy.[46]
[46] The claimant incorrectly referenced the Guidelines applicant to the Motor Accidents Compensation Act, 1998.
Insurer’s submissions dated 23 August 2022
The insurer’s submissions opposing the application to review briefly submitted that the grounds of appeal relied upon by the claimant “have no substance”.
RE-EXAMINATION
Mr Labib was examined by Medical Assessor Oates on 24 February 2023. The examination report is as follows:
“Mr Labib attended unaccompanied.
He arrived 10 minutes late because he was provided with the wrong venue address.
Pre-accident medical history and relevant personal details
He was born and educated in Egypt to university level studying Law. He was a lawyer in the High Court for about 10 years. He came to Australia in 1996 and after that studied property valuation, real estate and conveyancing, and business.
He had a motor vehicle accident in 2006, sustaining fractures to left 4th and 5th toes, sternum, left proximal fibula and injuries to both knees and low back. I asked him whether he had a neck problem in the past or an injury from this accident in 2006 and he said ‘no’. A third party claim was paid. He did not continue with his studies or go into the workforce. He has been on a disability support pension since this accident.
He has had surgery to the right ear on three occasions and surgery to the sinuses in 2015. He developed type 2 diabetes mellitus after the accident of 12 March 2019 and is treated with Ozempic injection 1mg per week and metformin tablets, one three times a day. He tells me he was also diagnosed with obstructive sleep apnoea after the accident of 12 March 2019 and uses a CPAP machine.
He is single with no dependants. He lives alone in his own home.
History of the motor accident
He was the driver of a 2005 Toyota Camry with no passengers on 12 March 2019. He was slowing in a line of traffic and came to a sudden standstill, and his vehicle was struck by a small Jeep following behind. His vehicle was pushed forward; he could not say by how much but noted that he always keeps a safe distance from the car in front. He had a seatbelt on.
Head rests were fitted, and he hit the back of his head on the head rest. Airbags did not deploy. He was not knocked out and does not recall any other impact injury. The seat back was not broken. He was able to self-extricate from his car. Police and ambulance did not attend, and he exchanged details with the other driver. His car was still driveable, and he drove home. The car was written off and he received $2,000 as a payout figure.
History of symptoms and treatment following the motor accident
Within a few days, he began to feel pain in the neck, back and shoulders.
He attended his GP, Dr Douaihy, Marrickville, on 15 March 2019 on the Monday because doctor’s surgery is not open over the weekend. This was three days after the accident. He had neck pain and low back pain with stiffness. The pain started to radiate through the trapezii, into the shoulders and down the arms, and from the lower back into the buttocks and lower extremities.
He had physiotherapy and hydrotherapy, and he attended a gymnasium. He was referred to Dr V Maniam, an orthopaedic surgeon, who organised MRI scans. After reviewing the MRI scans of cervical and lumbar spines, Dr Maniam opined that his problems are musculoligamentous with aggravation of underlying degenerative changes and that he will stabilise at an acceptable level with the conservative treatment alone. He was given no further appointments.
He was then seen by Dr Teychenne, neurologist, who performed neurophysiological studies. He diagnosed an incomplete cervical cord lesion resulting from the motor vehicle accident on 12 March 2019.
At review on 15 April 2020, he advised that Mr Labib should have a better quality MRI scan to look more closely at the spinal cord, possibly in 1-2 years’ time when technology has hopefully improved, however his clinical picture was quite consistent with an incomplete cervical cord lesion, secondary to a whiplash injury to the neck occurring in the presence of underlying central spinal stenosis.
Mr Labib said that all liability for treatment was ceased by the insurer about 12 months after the accident.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
Mr Labib said, in order of severity, his problems are low back central stabbing pain which radiates to the buttocks and both lower limbs. On the right side, this is in the right posterior thigh and calf, down to the heel, accompanied by numbness in the dorsum of the right foot to all five toes, which is intermittent and comes on when the low back pain is worse, which occurs with bending, walking, attempted lifting and climbing stairs.
He gets bilateral calf cramps and has to take magnesium regularly. He can’t sit for more than 20-30 minutes and while sitting, has to shift his position in the seat regularly. In the left leg, the pain radiates from the back, through the posterior thigh and calf to the distal calf, with numbness in the dorsum of the left foot, again to all toes, and pins and needles at times in the soles of both feet.
There is central neck basal pain, like a stick poking into him, which is constant and worse if he tries to lift weights with the arms, such as heavy grocery back. The neck pain radiates through the upper trapezii and shoulders and down both arms, and proximal lateral forearms. The arm pain is also made worse with attempted lifting.
He drops things frequently, as he feels he has lost control of his hands. There is tingling and pins and needles in all four fingers, but not the thumbs, of both hands. The numbness in the hands is worse if he is holding things, such as his mobile phone in hand too long or carrying shopping bags too long.
He gets dizzy and has frequent falls and had one recently at home causing bruising and abrasion to the right lower back. After previous falls, he has had cardiac check-ups and was put on aspirin, medication for cholesterol and anti-hypertensive medication.
He can drive for 20 minutes at a time. When he wakes up in the morning, he has to lift himself out of bed because of low back pain.
He developed problems with his urinary flow and was put on Duodart after investigations revealed benign prostatic hypertrophy. He has been referred to a urologist, Dr M Stanowski at Liverpool, who performed a cystoscopy and made the diagnosis. He is now on a waiting list for a TURP (transurethral resection of prostate) in the public hospital system, as he has no health fund.
Before the accident, he was a weightlifter, lifting up to 250lb weights, and his weight was between 87-90kg prior to the accident. It then went to 115-117kg because of enforced lack of exercise due to pain from his injuries. He did his own housework and yard work before the accident, and still does his own housework as he can’t afford a housekeeper. His neighbour comes and mows his front lawn and he gives him a small gift. He waters his garden and does low maintenance shrub upkeep. He can’t bend over and uses a chair to sit in the garden. He is independent with personal care. He doesn’t smoke and drinks alcohol occasionally.
Current and proposed treatment
He takes magnesium for calf cramps and Tramal 200mg, one twice a day. He has Endone for severe pain about once a week and he will take the medication for a few days at a time. He will then stop it for 5-7 days. He takes Panadol Extra and Mobic daily, Melatonin one at night, and Axit 30mg at night.CLINICAL EXAMINATION
General presentation
He was right hand dominant and of solid build with height 169cm and weight 108kg.
He presented as being pain-focused, complaining of neck pain on any active movement of this part or of the arms, and low back pain on active movement of the back or legs. He seemed to find it difficult to relax.
There was extensive bruising over the right lower back with a dressing in place from a recent fall at home in his garden which caused abrasions. His gait was normal and he sat without obvious discomfort. He transferred with some discomfort on and off the examination couch.
Cervical spine (cervicothoracic)
He had a poke-necked contour. Flexion and extension were both two-thirds of normal range. Lateral flexion was two-thirds of normal range. Rotation was three-quarters of normal range bilaterally. There was tightness in the upper trapezii bilaterally but no guarding or spasm. There was tenderness at C6/7 centrally.
Reflexes and power in the upper limbs were normal. Sensation testing showed decreased pin prick sensibility in all fingers of both hands and globally throughout the right upper limb, apart from an area of normal sensation in the proximal palms bilaterally. This is not in a spinal nerve root distribution. There were no non-verifiable radicular complaints, because the distribution of tingling and pins and needles described in both upper limbs did not follow a specific nerve root distribution.
Upper arm girth; right 39cm, left 37cm at 10cm above the elbow crease. Forearm girth; right equals left equals 29cm at 5cm below the elbow crease.
Lumbar spine (lumbosacral)
Lordosis preserved. Flexion one-half normal range, extension less than one-quarter normal range. Lateral flexion one-third of normal range bilaterally. Rotation was one-quarter of normal range bilaterally. All movements were accompanied by complaints of pain, which was said to limit his range of movement.
Both knee jerks, medial hamstring jerks and ankle jerks were of low amplitude and somewhat difficult to obtain because of his inability to fully relax. I noted no obvious reflex asymmetry. Plantar responses were both flexor. Power was normal. Sensation was intact in both thighs but said to be reduced to light touch and pin prick in both legs and soles of the feet, but not in the dorsi of the feet. This does not follow a nerve root distribution.
Supine straight leg raising was actively resisted at 10° bilaterally by complaints of low back pain, hence a sciatic nerve stretch test could not be performed. Thigh girth; right 53cm, left 52cm at 10cm above the superior patellar pole. Leg girth; right 38cm, left 38.5cm measured at 15cm below the inferior patellar pole. There was no spasm or guarding. There was tenderness from L3 to S1 centrally to light touch.
Right and left shoulders
There was no local tenderness. Impingement tests could not be performed because of pain complaints.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion 90°, 130°, 90° 90°, 110°, 90° Extension 50° 50° Adduction 40° 40° Abduction 100°, 150°, 110° 90°, 150°, 90° Internal Rotation 90° 90° External Rotation 90° 90°
The significant variability in active range of movement in elevation of both shoulders was said by the claimant to be due to varying amounts of pain at different times during the examination when measures were taken with a goniometer.
Comments on consistency
As mentioned above, the claimant was pain-focused and this affected his ability to demonstrate a complete extent of active range of movement, despite repeated instructions to move slowly to try to avoid pain, demonstrate his best range of movement, and stay in as relaxed a state as possible, rather than hunching up his shoulders.
REVIEW OF DOCUMENTATION
Summary of relevant radiological and medical imaging and other investigations
The following films were brought to the assessment.
25 July 2019 – MRI cervical spine and lumbar spine – M Waterland – In the cervical spine there are multi-level, degenerative changes involving C3/4, C4/5 and C6/7 discs, and endplate osteophytes causing mild central canal stenosis at C3/4 and C6/7, and mild left C3/4 foraminal narrowing. In the lumbar spine, there was mild disc and bony degenerative changes at L2/3, L3/4, L4/5 and L5/S1 (facet joints only) but there was no central canal stenosis or foraminal stenosis to cause nerve root compression at any level.
I viewed the scans and agreed with the report.
CAUSATION
After review of the evidence, the accident was found to be a cause of lumbar spine soft tissue injury with aggravation of pre-existing symptomatic degenerative changes, and also a cause of soft tissue injury to the cervical spine, with radiating symptoms to both upper extremities, through the shoulders. The accident was not found to be a cause of direct shoulder injury on either side.
IMPAIRMENT
Cervical spine (cervicothoracic)
DRE Cervicothoracic Category I – 0% whole person impairment. There was symmetric loss of active range of motion, no guarding, no non-verifiable radicular complaints, nor cervical radiculopathy to justify placement in a higher DRE category.
Lumbar spine (lumbosacral)
DRE Lumbosacral category II – 5% whole person impairment. This is assessed on the basis of asymmetric loss of active range of motion in flexion/ extension (dysmetria). There were not two or more criteria on clinical examination to justify a diagnosis of lumbar radiculopathy. The bilateral lower amplitude lower limb reflexes may be the result of his diabetes.
Right and left shoulders
The restricted range of movement in right and left shoulders was said by the claimant to be the result of referred symptoms from the cervical spine, hence the Nguyen principle applies.
The significant variability in active range of movement in both shoulders on repeat measurements renders the range of movement method inappropriate to use to assess permanent impairment. Assessment by analogy is adopted using acromioclavicular joint crepitation of mild degree, producing 1% whole person impairment at the right shoulder and 1% whole person impairment at the left shoulder.
Combined whole person impairment equals 5 plus 1 plus 1 – 7% whole person impairment.
Body Part or System AMA Guides/Guidelines References (chapter/page/table) Permanent (YES/NO) Current %WPI %WPI from pre-existing or subsequent causes %WPI due to motor accident Cervical spine (cervicothoracic) AMA4 ch 3 T73, p110 DREI Yes 0 0 0 Lumbar spine (lumbosacral) AMA4 ch 3 T72 p110 DREII Yes 5 0 5 Right and left shoulders Nguyen principle
AMA4 ch3 T18 p58 T19 p59Yes 2 0 2
APPORTIONMENT
Although there is evidence and the claimant admits to a pre-existing lumbar spine soft tissue injury thirteen years before the subject accident, there is no documented medical evidence that this lumbar region or the cervical spine were symptomatic immediately before the subject accident, nor is there evidence of pre-existing non-verifiable radicular complaints or radiculopathy present at the time of the subject accident in the contemporaneous medical evidence. Symptoms from a pre-existing injury rate as DRE lumbosacral category I which gives 0% WPI. The claimant denied a previous cervical spine injury at the Panel re-examination.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[47] The Panel adopts the examination findings of Medical Assessor Gorman and adds the following brief reasons.
[47] Section 7.26(6) of the 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[48] and Insurance Australia Ltd v Marsh.[49]
[48] [2021] NSWCA 287 at [40], [41] and [45].
[49] [2022] NSWCA 31 at [11], [21], [64].
The claimant has referred to previous assessments provided by doctors such as
Dr Tong and Dr Powell. The error with respect to the submission of reliance on those opinions for assessment is threefold, they are:(a) The assessment of permanent impairment is based on the claimant’s condition when he is examined by the Medical Assessor (or by the Review Panel).
(b) The assessments provided by Dr Tong and/or Dr Powell occurred in 2020. The claimant’s condition will change over time, for the better or worse. The suggestion that the claimant will present in a similar way three years later is unlikely.
(c) The Panel is not bound by previous assessments and the legislation provides that we are to make our own determination.
In his submissions the claimant incorrectly referred to cl 1.138 of the Motor Accident Permanent Guidelines in relation to determining whether radiculopathy was present. Those Guidelines apply to the Motor Accidents Compensation Act 1999 although the specific clause referenced by the claimant is similar to cl 6.138 of the Guidelines which apply to the MAI Act.
As we observed previously, the claimant must show two objective signs of radiculopathy from the five criteria during the examination conducted by the Medical Assessor or by the Panel. It is not sufficient, as the claimant submitted, that radiculopathy was previously present such as when it was recorded by Dr Tong in 2020.
The examination findings of Medical Assessor Oates were otherwise totally inconsistent with Dr Teychenne’s diagnosis of an incomplete cord lesion as there were no neurological signs at the recent examination. Dr Teychenne’s conclusion is otherwise inconsistent with the scan evidence which showed only degenerative changes and the nerve conduction tests which were reported as normal. Such a serious diagnosis is otherwise inconsistent with a modest rear end collision.
Given the claimant’s submissions on the presence of radiculopathy we repeat and adopt the Medical Assessor’s findings in respect of his assessment. The Medical Assessor correctly noted:
“Reflexes and power in the upper limbs were normal. Sensation testing showed decreased pin prick sensibility in all fingers of both hands and globally throughout the right upper limb, apart from an area of normal sensation in the proximal palms bilaterally. This is not in a spinal nerve root distribution. There were no non-verifiable radicular complaints, because the distribution of tingling and pins and needles described in both upper limbs did not follow a specific nerve root distribution.”
The Medical Assessor otherwise assessed for and did not find dysmetria, muscle guarding or spasm.[50] Accordingly, the claimant was not assessed at either DRE II or DRE III for the cervical spine.
[50] See Table 6.7 of the Guidelines.
Shoulder assessment
There were no discrete shoulder injuries sustained in the motor accident. That conclusion is consistent with the absence of traumatic complaint of injury to the shoulders and the absence of any explanation of a bio-mechanical bilateral shoulder injury.
The claimant’s submissions rely on an assessment based on the Nguyen principle.
The Medical Assessor has explained why he has assessed the extent of any impairment of the upper extremities due to the inconsistency noted on examination.
Pre-existing or subsequent injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[51] concerning the issue of onus, that is the onus is on the insurer to prove the deduction for a pre-existing impairment.
[51] [2022] NSWPICMP 66 at [118]-[120].
Clause 6.31 of the Guidelines requires a deduction for “pre-existing impairment” if “there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident”.
The decision of Bell P (as his Honour then was) in IAG Ltd v Chahoud[52] noted the distinction between the date of the record of symptoms and the date of the pre-existing impairment. His Honour stated:[53]
“IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated ‘at the time of the accident’. It submitted that the clause should instead be read as requiring that there be ‘evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident’. What was ‘likely still to exist’, in other words, were not records of any pre-existing impairment but the pre-existing impairment itself.”
[52] [2019] NSWSC 767 (Chahoud).
[53] Chahoud at [70].
Whilst there is objective evidence of a previous impairment, we are not satisfied that there was pre-existing impairment of the lumbar spine at the time of the motor accident.
There is a lack of evidence prior to the motor accident that would cause us to be satisfied that the lumbar spine condition immediately prior to the motor accident was classified as DRE II. In our view, the assessments undertaken many years previously does not satisfy us to the requisite onus that the claimant was classified as DRE II at the time of the motor accident.
CONCLUSION
79.The certificate is revoked although the overall certificate remains unchanged, that is, the claimant’s impairment is not greater than 10%. The new certificate is attached at the commencement of these Reasons.
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