Louizas v AAI Limited t/as AAMI
[2022] NSWPICMP 428
•25 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Louizas v AAI Limited t/as AAMI [2022] NSWPICMP 428 |
| CLAIMANT: | Nefertiti Louizas |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the 1999 Act; original assessor (Dias) assessed WPI at 10% due to injuries to the neck and back (both diagnosis related estimate (DRE) category II) and no injury to claimant’s shoulders or knees; issue was delay in onset of knee pain (two years post-accident) and whether claimant sustained frank injury to left shoulder or experiences referred pain from her neck; Held – claimant sustained soft tissue injury to the neck and lower back aggravating pre-existing degenerative changes resulting in DRE category II for both; Panel not satisfied the claimant injured her shoulder but she has referred pain in her shoulder restricting motion assessed at 2%; Panel not satisfied the claimant’s knee was injured in the accident. |
| DETERMINATIONS MADE: | 1. Revokes the certificate of Medical Assessor Dias dated 14 September 2021. 2. Certifies that the degree of Nefertiti Louizas’ permanent impairment resulting from the injuries caused by the motor accident on 14 November 2016 is greater than 10%. |
STATEMENT OF REASONS
Introduction
Nefertiti Louizas was involved in a motor accident on 14 November 2016.
Ms Louizas was the driver of a vehicle stationary at traffic lights at the Northern Road exit on the M4 near Penrith. It appears from the detailed diagram drawn in her claim form that she was driving the last car of three involved in two rear end collisions (the vehicle immediately behind her hit first then there was a second impact from a vehicle behind that car)[1].
[1] This detail comes from the claim form and its annexure which provides a very fulsome description of the accident and its aftermath.
On or about 12 January 2017, Ms Louizas made a claim against AAMI the third-party insurer of the vehicle behind her who she says caused the accident.
A medical dispute has arisen in the claim between Ms Louizas and the insurer as to Ms Louizas’ entitlement to non-economic loss. That medical dispute was referred to the Personal Injury Commission (the Commission) and on 14 September 2021, Medical Assessor Dias determined the claimant had no entitlement to non-economic loss.
The claimant was disappointed with that decision and lodged an application for review with the Commission and on 21 June 2022, a delegate of the President of the Commission found there was reasonable cause to suspect a material error in the decision and the President has now convened the Panel.
Legislative framework
General
Ms Louizas’ claim and her entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Dias’; further medical assessments, and the review of medical assessments by this Review Panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
The relevant chapters and parts of the Guides and the Guidelines include:
(a) chapter three – the assessment of the cervicothoracic spine;
(b) chapter three – the assessment of the lumbosacral spine, and
(c) chapter three – the assessment of the upper limbs.
The injury sustained in the accident may lead to impairments in the part of the body injured and impairments in other parts of the body. For example, if any impairment to the shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351 that impairment must be assessed, and its value included in the determination of the claimant’s total WPI. This is commonly referred to as the Nguyen principle.
Assessment under review
Medical Assessor Dias examined the claimant on 24 June 2021 and issued his certificate on 14 September 2021. He was asked to assess the WPI arising out of the following injuries:
(a) cervical spine – neck – left C5/6 foraminal stenosis with contact of left C6 nerve root and soft tissue injury;
(b) lower back – L5/S1 disc protrusion, posterior annular fissure and disc bulge, S1 nerve impingement, left radicular loss of sensation and soft tissue injury;
(c) left shoulder – soft tissue injury, clinical picture of rotator cuff pathology, with decreased range of motion, and
(d) right knee – complex tear posterior medial meniscus and soft tissue injury.
The Medical Assessor took the following history from the claimant:
(a) Ms Louzis worked in aged care before obtaining a Certificate IV in nursing. She was employed as a nurse at the time of the accident while attending university part time studying for a degree in nursing;
(b) the claimant fractured her tibia at the age of six with no symptoms after a year. Ms Louizas said she had a right forearm and hand injury at work in the late 2000s and she suffered from psoriasis and migraine headaches;
(c) the claimant recounts the circumstances of the accident noting “her vehicle was hit from behind by a sedan travelling at considerable speed”. The claimant’s car was stationary;
(d) the claimant said she had whiplash to her neck and had lower back pain and as there was a bruise on her right knee, she thinks she hit her knee on the dashboard, and
(e) her car was towed but no emergency personnel attended. Her partner came to collect her and took her to the doctor.
The claimant says she has continued to suffer from ongoing symptoms of pain stiffness and discomfort in her neck and lower back on a continual basis over the four and a half years since the accident. Pain in her shoulders, with associated pins and needles and numbness radiating down her left arm have worsened over the last two years. She is also experiencing intermittent pins and needles and numbness radiating down her left lower limb and her knee has been getting worse since 2019.
The claimant says she was prescribed analgesia then had physiotherapy and has had many investigations. She is not currently under the care of a specialist but consults with a general practitioner (GP).
The claimant has returned to work on a part time basis.
On examination:
(a) there was tenderness and muscle guarding but no spasm in the neck. Flexion was three quarters normal and extension one half. Lateral flexion was one third on the left and one half of the right. There were no neurological deficits and Medical Assessor Dias said the complaints of pins and needles and numbness did not correlate to a dermatomal distribution;
(b) the thoracic spine was normal;
(c) the lumbar spine was normal with guarding but no spasm. There was evidence of dysmetria on lateral flexion however there were no neurological abnormalities;
(d) the left shoulder was “unremarkable although movement was restricted in flexion and abduction”, and
(e) the left knee when examined was normal but the right had a decreased range of motion.
Medical Assessor Dias reviewed the medical evidence and commented as follows:
(a) while there were contemporaneous and regular complaints of neck and back pain after the accident “there was no mention of right knee pain or left shoulder pain” in the clinical records of the Eastwood Medical Centre before June 2019;
(b) Dr Bruce on 13 June 2018 recorded that the neck injury was resolving but the lumbar spine needed further treatment. There is no mention of knee or shoulder. On 29 October 2019 he noted that the lower back injury had resolved and there were no complaints about the neck. At that time, Dr Bruce assessed 5% WPI due to muscle guarding and dysmetria in the lower back;
(c) Dr Gehr in a report dated 20 March 2020 diagnosed soft tissue injury to the neck (5%), discogenic injury to the back (5%), soft tissue injury to the left shoulder (9%) and right knee impairment of 12% making a total of 29% WPI, and
(d) records of physiotherapist Ms Golan and the GP note right knee pain in April 2020 and March 2020 but disclose no left shoulder injury.
Medical Assessor Dias found there was clearly an injury to the claimant’s neck and back in the accident. While the neck symptoms have fluctuated the back continued to cause problems.
The Medical Assessor found Ms Louizas’ right knee was not injured in the accident due to an absence of complaints in the GP notes before March 2020. He made similar findings in relation to the left shoulder.
He found the claimant’s neck and back injuries both fell within the Diagnostic Review Estimate (DRE) category II and assessed 5% for both the neck and the lower back giving a total WPI of 10%.
Matter summary and submissions
Claimant’s submissions (applicant)
The claimant relies on the certificate of Dr Houwing completed on 22 November 2016 as evidence of contemporaneous complaints of left shoulder and right knee pain. While not specifically mentioned, Ms Louizas argues he has shaded on a diagram the left side of the neck and the left leg.
The claimant also argues that the Medical Assessor failed to consider whether the claimant’s left shoulder issues are related to the neck and assessable under the Nguyen principle. The claimant also says the assessor did not put to the claimant that her left shoulder was not injured in the accident.
There are no detailed submissions concerning the knee.
Insurer submissions (respondent)
The insurer says that the shading on the diagram of the body is open to interpretation and “hardly convincing evidence of a contemporaneous left shoulder injury or complaint” and that it is more consistent with trapezius muscle pain than an actual shoulder injury. The insurer noted Dr Houwing did not refer to the left shoulder in the written part of the certificate.
In terms of the Nguyen principle, the insurer notes there needs to be a connection between the neck injury and the shoulder impairment and says in this case there was no cervical radiculopathy and therefore no causal nexus between the soft tissue neck injury and any impairment to the left shoulder.
Procedural matters
The Panel issued directions to the parties seeking bundles of documents and both parties complied with the directions.
Following the first teleconference in this matter on 12 September 2022, the Panel wrote to the parties noting the issues of causation of the shoulder injuries and left knee and invited the parties to make any final submissions. No further submissions were received.
Review of the evidence
Claim forms and related documents
The claim form[6] dated 13 January 2017 lists the claimant’s injuries as whiplash, “both shoulders strain”, neck strain, middle and lower back pain, “pain down left leg into foot”.
[6] Page 8 of the claimant’s bundle.
The medical certificate, completed by Dr Houwing on 22 November 2016 says: “whiplash type injury neck – worse on the left, back pain lower thoracic and lumbar pain radiating to L left laterally to foot”. The pain diagram completed by Dr Houwing is reproduced below.
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The claimant indicated she had previous mental health issues (depression and anxiety) but did not disclose any previous physical injuries[7].
[7] Her response to the relevant question (24) suggests she may have misunderstood the question as she has referred only to post accident complaints of pain.
Treatment records and reports
Ms Golan, physiotherapist wrote to the claimant’s GP on 9 April 2020 noting that the claimant was first seen on 30 March 2020 complaining of lumbar pain, cervical pain and right knee pain. The history given was that the low back and neck pain started following the car accident and the knee pain had been getting worse over the last 18-24 months. There was no complaint of shoulder pain recorded by Ms Golan at that time. The notes do record left shoulder pain and treatment in May 2020 and lower back complaints following work[8].
[8] The claimant’s physiotherapist’s notes are found at page 97 of the claimant’s bundle.
The GP’s notes are generally consistent with the histories given by Ms Louizas.
The Panel notes that in 2004, the claimant was referred by her GP to orthopaedic surgeon Dr Vijay Maniam “for an opinion and management of painful right knee” after it gave way during a fight[9]. There are three corresponding handwritten notes during October 2014 but no suggestion of ongoing issues.
[9] Page 38 of the insurer’s bundle.
In the GP’s records are a number of medical certificates suggesting the claimant was off from the date of the accident to 20 November 2016 and then returned to work on “modified duties” from 22 November to 5 December 2016[10].
[10] The medical certificates are documents A7-A12 from page 80 in the claimant’s bundle and the GPs notes are found at page 86.
On 27 December 2018 Ms Louizas was certified unfit for work due to stress in the workplace, an aggressive and difficult patient and that she was assaulted at work (hit on the left arm)[11].
[11] The medical certificate is found on page 136 of the bundle.
There is a GP entry and a discharge summary from Ryde Hospital suggesting that on 13 November 2019 the claimant was complaining of intermitted chest pain, and she was “very stressed currently which is making her feel ill”. The chest pain was radiating to the left shoulder.
Medico-legal reports
The claimant’s solicitors obtained reports from Dr Deveridge dated 24 August 2017. These were not made available to the Panel in either of the bundles but were called for after a review of the documents in the bundles from both parties referred to them.
Dr Deveridge examined the claimant on 17 August 2017. He says he obtained a detailed history from the claimant and reviewed the records of Eastwood Medical Centre amongst other documents.
Dr Deveridge takes a history of the accident and its aftermath which is consistent with other histories. He has a history of pain in the neck, mid and lower back and that she had ongoing neck pain but of more concern was back pain extending down her left leg to the foot.
He notes both her jobs which he says “were quite strenuous and demanding, with frequent bending, lifting and twisting to look after her patients”. She gave up her second job as “she always goes home with increased neck, back and left leg pain by the end of the shift”.
He refers to a partial and limited recovery with ongoing low back pain and stiffness with shotting pain down the left leg, numbness in the lower leg and foot symptoms. She had milder pain and stiffness in her neck extending towards both shoulders and shoulder blades.
He notes a pre-accident activity of kick boxing and boot camps.
He records on examination that “Both shoulders exhibited a full range of motion without impingement” although elevation of her arms provoked neck symptoms on both sides.
Dr Deveridge diagnosed muscular ligamentous strains to the cervical and thoracic spine with a sprain and disc protrusion in her lumbar spine. He assessed the claimant as having a 0% WPI for the neck and the mid back (DRE category I) and a 5% impairment in respect of the lower back (DRE category II) due to the presence of non-verifiable radicular complaints, muscle guarding and dysmetria.
Dr Bruce provided a report for the insurer dated 13 June 2018. He notes that Ms Louizas’ work as an enrolled nurse in the neurological unit is hard and physical work involving lifting and carrying patients. He noted she also worked weekends at the children’s hospital before the accident.
Dr Bruce has a history of her car being driveable after the accident, but that it was towed and repaired and the airbags did not deploy.
Dr Bruce has a history of neck pain, lower back pain and headaches and while there had been improvement it had now stopped and her condition has plateaued. He records minimal symptoms in the neck (the claimant said she had fully recovered and had no symptoms radiating into her upper limbs) but the main problem being her lower back with radiating pain into her left leg. He has a history this radiating pain came on within four to five months after the injury. The claimant’s back pain can radiate up to the thoracic region and is a constant discomfort with episodes of severe pain. She has modified her home and work duties.
On examination there was dysmetria and mild spasm.
Dr Bruce records no history of shoulder problems or knee problems and so those parts of the body were not examined. He thought there might be some improvement in her significant disc bulge and therefore did not undertake an impairment assessment.
In his second report dated 29 October 2019, Dr Bruce notes the claimant has continued her work as a nurse and that she has had no further treatment but had taken up swimming and was carrying out home exercises.
The claimant reported some improvement, but she had not recovered. She had intermittent pain in her lower back radiating to the left sacroiliac region, buttock and down the outside of the left leg. The left foot symptoms and numbness had resolved.
Dr Bruce states “she has no complaints regarding her cervical spine and this was not examined or assessed”.
A separate impairment assessment was undertaken on this occasion. Noting the presence of dysmetria and muscle spasm in the lower back these are non-verifiable radicular signs which translate to a WPI of 5% (DRE category II).
Dr Gehr provided a report to the claimant’s solicitors dated March 2020[12]. He has a history of no previous physical problems in her spine, upper limbs or lower limbs other than a broken leg as a child. The claimant was said to take Lyrica, Panadeine Forte and Panadol.
[12] A4, Page 24 of the claimant’s bundle.
Ms Louizas reported that she had immediate paracervical neck pain and pain over her left shoulder with lumbar spine pain after the accident and that the pain worsened over the next few days.
The claimant reported “pain occasionally in the left paracervical area” (1 – 2 on a scale of
0 – 10), left shoulder pain (on the same scale up to 6) and lumbar spine pain (7 or 8 out of 10). The claimant said she has had instability of the right knee. The claimant said her left leg pain has improved and her headaches had reduced but her neck, left shoulder and back injuries had plateaued.
In the neck there was guarding and dysmetria but no neurological deficits. There was no spasm or guarding in the lumbar spine but dysmetria. There was decreased sensation on the left side at L5/S1. On examination of the shoulder there was rotator cuff muscle wasting in the left side, positive impingement signs and reduced range of motion.
Dr Gehr found all injuries caused and assessed WPI at 28%.
Trudy Warner, occupational therapist provided a report dated 14 March 2022. While the issue of care and assistance is not greatly relevant to the Panel the Panel notes the range of motion in the neck measured by Ms Warner was similar to that of Dr Gehr and showed lumbar spine dysmetria and there was also a significant difference in left versus right shoulder motion.
Dr Bruce’s third report to the insurer is dated 5 April 2022. He noted that his two previous reports had focussed on the claimant’s back injury and that she was now complaining of lower back, neck and right knee pain. The claimant told Dr Bruce that her lower back pain has remained the same but that her neck symptoms have returned and pain is now radiating into her left arm and her neck pain is getting worse.
The claimant told Dr Bruce there had always been pain in the knee, but it had become more severe over the past year or so. Dr Bruce notes the claimant was referred to an orthopaedic surgeon who discussed arthroscopic treatment which she has declined.
The claimant was said to have described pain on the left side of the neck and posterior aspect radiating to the left scapular, into the left deltoid and into the upper arm.
The claimant had left the ward work at Nepean Hospital, applied for a light job at the Blood Bank but failed the medical examination and works for a nursing agency.
On examination of the lower back there was slight muscle spasm to the left lateral side but dysmetria was present. In the neck there was slight spasm, dysmetria. The knee movement was full in the right with mild crepitus which he considered due to an anatomical predisposition.
Dr Bruce considered both the neck and the back complaints were related to the accident being aggravations of significant degenerative changes. He considered the right knee symptoms were due to naturally occurring patellofemoral dysfunction and were not related to the accident.
There was no complaint of a frank or direct shoulder injury but complaints of neck pain radiating into the left shoulder region and left arm.
There is so separate impairment assessment with this report.
Re-examination findings
The claimant was examined by Medical Assessor Home on 27 September 2022.
Pre-accident history and relevant personal details
Ms Louizas confirms that she worked as an AIN (Assistant in Nursing) between 2003 and 2011 after completing a Certificate for Nursing. She began working as an endorsed enrolled nurse, which continued up until the date of the subject accident.
In 2012, she commenced a Bachelor of Degree in Nursing at Western Sydney University. At the time of the subject accident, she was studying on a part-time basis.
Three weeks before the accident she commenced working a second job. At the time of the accident she was working both as a nurse on the stroke ward of a local hospital and looking after disabled children at a children’s hospital.
Past medical history
Ms Louizas told Medical Assessor Home about a fracture to the right proximal tibia at age 6 years which was treated conservatively in a plaster cast and she made a full recovery.
There was a minor right forearm/hand soft tissue injury whilst working as an AIN in late 2000’s from which she recovered with a period of physical therapy over two to three months. She suffers from psoriatic dermatitis treated with topical steroid ointments. She is unaware of any symptoms of psoriatic arthritis.
She has also suffered periodic migraine, occurring about once a month which is managed with analgesia and lying in a dark room.
There was no prior history of significant musculoskeletal complaints before the accident.
History of the accident
Ms Louizas confirms she was involved in an accident on her way to work on 14 November 2016 at approximately 6.30am. She was wearing a seat belt and was driving her hatchback vehicle. She was stationary on the M4 Northern Road exit in Penrith when struck from behind by a sedan travelling at speed. She recalls that a third vehicle then struck that vehicle, causing that same vehicle to strike the back of her vehicle on a second occasion.
She recalls being thrown back and forward in her seat belt and that her right knee may have hit the dashboard because she remembers having a bruise to her right knee.
She recalls early symptoms of psychological shock and dizziness. The police attended the scene of the accident. She drove her car around the corner and it was subsequently towed away. She confirms that her partner arrived at the scene to collect her from the scene of the accident and he drove her to a local medical centre in Eastwood, where she attended Dr Malhotra. She recalls predominantly left-sided neck pain and pain in her lower back.
She was issued with a medical certificate for time off work and provided with anti-inflammatory medication, Ibuprofen.
Subsequently, Ms Louizas came under the care of her usual GP, Dr Houwing who she attended on 16 November 2016.
At that time, she experienced persisting symptoms of predominantly left-sided neck pain and now lower back pain radiating into the left leg. She recalls that the pain radiated from the neck across the top of her left shoulder.
She recalls that she could not afford physical therapy so Dr Houwing provided her with home exercise. She states that her most severe pain has been low back pain, and this has been the source of medical attention.
She states her neck pain has continued and has worsened periodically since the accident.
Due to chronic back pain, she has required the use of strong analgesia. She reports the use of Panadeine Forte, Lyrica (recently increased to 150 milligrams at night) and Paracetamol, which she takes on a regular basis. She also recalls occasional use of Endone.
She recalls that physical therapy was delayed until late 2018 due to funding issues and confirms this was a consistent period of physical therapy in early 2020.
She states there has been a progressive increase in neck pain with referred symptoms to the left upper limb over the past two years. This has incorporated complaints of intermittent paraesthesia in the ulnar three digits of her left hand. She describes exacerbation of neck pain with shoulder elevation.
In April 2020, Ms Louizas underwent MRI scan imaging of the cervical and lumbar spine.
In response to a direct enquiry, she states that there was the later onset of anterior right knee pain, which intensified over the last few years. There is a periodic experience of clicking in the knee and symptoms of mild instability causing her right knee to suddenly give way.
She attended an orthopaedic surgeon around 2020 but could not recall his name. There was discussion about corticosteroid injection and surgery, but neither treatment was pursued.
She has become aware of local pain at the left shoulder from about approximately 2020 but she could not recall the precise timing of the onset of symptoms. She says that it is difficult to distinguish this local pain at the shoulder from the referred pain extending from the neck down her left arm. She believes the pain in her shoulder is mainly coming from her neck.
Current symptoms
Ms Louizas continues to experience monthly migraine headaches. She also experiences occipital headache occurring a few days per fortnight which seems to be worse when her neck is painful.
Neck pain is now present most days and it usually occurs on the left side, more than the right. The pain radiates from the neck across the shoulder down the arm. She describes further symptoms of pain and paraesthesia radiating along the post-axial border of the left arm and forearm with intermittent paraesthesia in the ulnar three digits of the left hand.
She describes constant low back pain of average intensity 4-5 out of 10, with frequent radiation of pain to the left leg as far as the left calf. There is sometimes pain in the dorsum of the left foot in the lateral three toes. There is sometimes paraesthesia in a similar pattern. The left leg symptoms occur for most of the day.
Ms Louizas reports the current use of Paracetamol on an occasional basis. She now rarely takes the other medications as she is 28 weeks pregnant.
Activities of daily living
Ms Louizas is right hand dominant. She describes a sitting tolerance of up to 45 minutes with a similar tolerance for driving. She is able to walk for up to one hour but walks up to eight hours with regular breaks during her nursing shifts. She is careful to avoid deep forward bending at the waist and avoids crouching or kneeling due to her right knee complaint. She avoids stair climbing where possible but otherwise does so asymmetrical. She is able to lift light weights but avoids heavy lifting.
At work, she ensures that there are two other staff members when performing transfers and she usually takes the head or feet end.
Social history
Ms Louizas has recently married and is currently 28 weeks pregnant. This is her first child. She continues to smoke 1-2 cigarettes daily.
She performs light domestic chores, but her husband performs the heavier cleaning tasks.
She has not resumed previous active hobbies of hiking, camping and boot-camp.
Ms Louizas states that following the accident she was off work for 2-3 weeks and returned to work on light duties for a further three to four weeks before resuming her work on the stroke ward. She did not return to the children’s hospital.
She resigned from her hospital work in the hope of obtaining a further job but did not pass the medical examination. Since November 2021, she has worked for an agency, a few shifts per week, primarily working on surgical wards in a private hospital.
Examination
Ms Louizas presented as a 38-year-old woman standing 167cm tall and weighing 80kg. She is heavily pregnant however her pregnancy did not interfere with the clinical assessment of the accident-related injuries and the assessment of WPI.
Cervicothoracic spine
Examination reveals normal spinal curvature. Flexion was performed to three quarters normal range, extension to three quarters normal range. Right rotation was normal in range and left rotation was to five sixths normal range. Right lateral flexion was full. Left lateral flexion was three quarters normal range with ipsilateral pain declared.
There was pain with muscle guarding observed by Medical Assessor Home at the re-examination and muscle spasm.
Spurling’s sign was negative. Neurological examination of the upper extremities revealed normal upper limb power in all muscle groups. There was no muscle wasting. There was normal sensibility throughout. The deep tendon reflexes were symmetrically preserved.
Right shoulder
There was no muscle wasting. Active motion measured by goniometer method was normal and is as follows:
| Shoulder Movements | Active ROM Measured Right |
| Flexion | 180° |
| Extension | 50° |
| Abduction | 180° |
| Adduction | 50° |
| External rotation | 90° |
| Internal Rotation | 80° |
Left shoulder
There was no muscle wasting observed by Assessor Home. There was minimal tenderness was elicited anteriorly at the shoulder joint. Terminal elevation was restricted by local left-sided neck and shoulder girdle pain, rather than local pain at the left shoulder as reported. The range of motion was consistent and was reproducible.
Active motion measured by goniometer method was as follows:
| Shoulder Movements | Active ROM Measured Left |
| Flexion | 150° |
| Extension | 50° |
| Abduction | 150° |
| Adduction | 50° |
| External rotation | 90° |
| Internal Rotation | 80° |
Lumbosacral spine
Examination reveals normal spinal curvature. There was no muscle spasm. Forward flexion was performed to two thirds of normal range and extension was full. Right lateral flexion was also full although left lateral flexion three quarters normal range. Ipsilateral pain was declared during left-sided motion.
There was pain with guarding observed by Medical Assessor Home at the re-examination.
Straight leg raising was performed to 60 degrees bilaterally. Neurological examination of the lower extremities revealed normal lower limb power in all muscle groups.
There was normal sensibility throughout and the deep tendon reflexes were symmetrically preserved.
Right knee
There was no joint effusion. Active motion measured 0 extension to 125 degrees flexion, symmetrical to the left side. Ligaments were stable in anterior-posterior and lateral planes. There was no abnormal patellofemoral joint crepitus on either side. Clarke’s manoeuvre is negative, that is, compression of the patella during quadriceps contraction does not reproduce anterior knee pain.
Investigations
The CT scan of the claimant’s lumbar spine dated 18 November 2016 demonstrates broad-based disc bulge at L5/S1 potentially involving the S1 root in the left lateral recess.
The MRI of her cervical spine dated 16 April 2020 showed a C2/3 posterior disc protrusion with indentation of the thecal sac. At C3/4 there was a posterior disc bulge with indentation of the thecal sac and mild left foraminal stenosis. At C4/5 there was also a posterior disc bulge, bilateral uncovertebral body with bony lipping and indentation of the thecal sac. Mild foraminal stenosis was present and worse on the left. At C5/6 there was a posterior disc bulge and bilateral uncovertebral bony lipping, worse on the left with indentation of the cord on the left side. There was no abnormal cord signal. Moderate left foraminal stenosis, small right C5/6 perineural cyst. At C6/7 there was a posterior disc bulge eccentric to the right with bony bilateral uncovertebral lipping with indentation of the thecal sac. Moderate right and mild left foraminal stenosis. At C7/T1 there was no significant disc herniation canal or foraminal stenosis and L1/2 to L4/5 were normal. At L5/S1 there was disc dehydration with a posterior annulus fissure and posterior disc bulge with indentation of the thecal sac with slight contact with a bilateral descending S1 nerve root without displacement or impingement. There was mild bilateral facet joint hypertrophy.
Diagnosis and causation
There is documentation that the claimant suffered early symptoms of predominantly left-sided neck pain with some radiation to the shoulders in the claim form, which indicates strain to both shoulders and in particular noting the pain diagram in that form with markings of pain across the shoulders.
The initial medical consultation at Eastwood Medical Centre documents pain in the neck and lower back, increased pain on the left side of the neck and right side of the lower back with tenderness in the cervical spine, thoracic spine and lumbar spine.
It is noted that a Home Doctor Clinical Report dated 15 August 2017, sets out diagnosis of back pain and neck pain, on and off since the motor vehicle accident with spasm in the lower back, lower neck and shoulders.
The report of Dr Deveridge dated 24 August 2017 refers to neck pain extending towards the shoulders and shoulder blades and lower back pain radiating down the left leg. Whilst the Panel notes that Dr Deveridge did not find evidence of dysmetria or guarding of the cervical spine and restricted left shoulder elevation, the Medical Assessors note that in their clinical judgment it is medically plausible for the claimant’s injuries to progress and for clinical findings to deteriorate over time. Further, periodic symptoms may increase to become permanent.
At the initial examination by Dr Bruce in June 2018, he documents that lower back and left lower limb pain were constant with neck a little bit sore but otherwise fully recovered with no symptoms radiating to the upper limbs and no sensory symptoms.
Ms Louizas advised Medical Assessor Home that her symptoms have been periodic and at the time of the examination with Dr Bruce, her main concern was her lower back condition.
The physiotherapy notes from Elite Spinal Therapy commence in March 2020. These document right medial knee pain, constant ache in the neck and lower back pain. Sensory symptoms were declared as a weird sensation from the shoulder to the elbow with a history of clicking of 18 to 24 months duration that would date back to 2018.
At that stage, again, the main complaint documented was of lower back pain. There was lower back pain with radiation to the left foot.
On several occasions, the physiotherapist documents predominantly left-sided neck and shoulder pain with radiation of pain into the left arm. There were also persisting complaints of anterior knee pain documented in the physiotherapy notes.
Dr Gehr, in March 2020, documents intermittent left superior shoulder pain, indicating the complaints were periodically occurring. He noted complaints of instability at the right knee but more severe pain in the lower back, average intensity 7-8 out of 10 on a VAS (Visual Analogue Scale).
At examination, Dr Gehr documented restricted range of active motion to the left and the cervical region, left on lateral flexion with reduced right lateral rotation, more than the left with dysmetria present. Neurological examination of the upper extremities was normal. He documented asymmetrical back motion with dysmetria but beyond sensory abnormality, no other objective neurological findings or wasting.
The findings of Dr Gehr are very similar to those set out by the physiotherapist in the same contemporaneous period.
Dr Bruce opined that the right knee complaint developed a number of years after the accident. This is consistent with the medical records. He found that the neck complaint had increased at the time of his assessment in April 2022 with limited motion to the right with dysmetria. In the right knee there was a full range of motion with mild crepitus. The finding of patellofemoral crepitus was not reproduced at the current assessment by Medical Assessor Home.
What injuries were caused in the accident?
Cervicothoracic spine
The Panel is satisfied that the claimant sustained a soft tissue injury to her neck.
The complaints in the left upper limb are not considered to follow a radicular pattern and are considered to be a non-verifiable radicular complaint.
Lumbosacral spine
The Panel is satisfied the claimant sustained an aggravation of underlying degenerative changes, with L5/S1 disc protrusion and posterior annular fissure. There are non-verifiable radicular complaints in the left lower extremity.
Left shoulder
There is no evidence before the Panel to support a frank or discrete local injury to the shoulder. While there is early documentation of shoulder pain this is in association with the neck condition. The subsequent complaints of pain in the region of the left shoulder arise secondary to the neck condition and reflect a referred phenomenon.
The Panel accepts the claimant has referred pain in her left shoulder from the cervical spine. This is causing a restriction of motion in her shoulder and the associated impairment is to be included in accordance with the Nguyen principle. There is restricted left shoulder elevation due to neck and left shoulder girdle muscle tightness, but this does not reflect a local injury to the left shoulder caused by the motor vehicle accident.
The neck pain has varied in severity since the date of accident according to the claimant’s history and this is also reflected by notation in the clinical file, which documents fluctuating symptoms and in the medico-legal reports of Drs Deveridge and Bruce.
At the date of the examination by Medical Assessor Home, there was restricted left shoulder elevation, secondary to neck pain which the Panel accepts is accident related.
Right knee
While the claimant says she observed a bruise on her right knee and now reports anterior knee pain due to patellofemoral dysfunction, the Panel notes that there were no complaints of right knee pain in the immediate post-accident period.
Whilst the claimant may have sustained a contusion to the knee as she reports, there is no subsequent complaint of right knee pain until several years after the subject motor vehicle accident.
The treating physiotherapist in 2020, documented the history of onset of symptoms within 18-24 months of the consultation which is consistent with the onset of symptoms in 2018, several years post-accident.
The Panel is not therefore satisfied that the claimant sustained a material injury to the right knee in the accident and that any bruise or contusion was a soft tissue injury from which she has recovered.
It is the Medical Assessors’ clinical judgment that had Ms Louizas suffered a material injury to the right knee, her complaints would have been persistent and subsequently recorded in her claim form dated two months post-accident and in the early medical records.
The Panel also notes that the pain diagram completed by the claimant and her GP indicates pain down the whole of the left leg and not the right and in particular not in the region of the right knee.
Impairment Assessment
Permanency of impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Almost six years after the accident the Panel is satisfied that the claimant’s injuries are stable and her impairments permanent.
Cervical spine
Ms Louizas’ clinical presentation is consistent with a DRE II category which requires the following[13]:
(a) Pain with guarding, or
(b) Non-uniform range of motion – dysmetria, or
(c) Non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(i)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
[13] See Tables 7 and 8 of the Guidelines.
The medical examination conducted by Assessor Home confirmed complaints of neck pain with muscle guarding. There is spinal dysmetria in that there were asymmetrical movements in rotation and lateral flexion. There are no verifiable or non-verifiable radicular complaints. While the claimant has symptoms of radiating pain this does not follow the distribution of a specific nerve root and while there were symptoms of loss of sensation in the fingers these too did not follow the distribution of a specific nerve root.
The presentation does not meet the criteria for radiculopathy (and DRE III) set out in cl 1.138 of the Guidelines.
A DRE II finding in the cervicothoracic spine attracts a 5% WPI rating.
Lumbosacral spine
Ms Louizas’ clinical presentation is consistent with a DRE II category because:
(a) there are complaints of low back pain and there was muscle spasm observed by Assessor Home, and
(b) there is asymmetrical spinal motion in lateral flexion.
There are non-verifiable radicular complaints of shooting pain down the left leg but Ms Louizas does not meet the criteria for radiculopathy (and therefore DRE III) set out in cl 1.138 of the Guidelines.
A DRE II finding of the lumbosacral spine attracts a 5% WPI rating.
Left shoulder
There is restricted motion of the left shoulder, secondary to the neck condition. (Nguyen principle). Impairment is determined using Figures 38, 41 and 44, AMA4, pages 43, 44 and 45, as set out in the Table below:
Shoulder Movements
Active ROM Measured
LEFT (degrees)
Upper Extremity Impairment[14]
AMA Guides (4th Ed)
Flexion
150 (normal 180)
2% (Fig 38, p 43)
Extension
50
0% (Fig 38, p 43)
Adduction
50
0% (Fig 41, p 44)
Abduction
150 (normal 180)
1% (Fig 41, p 44)
Internal Rotation
80
0% (Fig 44, p 45)
External Rotation
90
0% (Fig 44, p 45)
Total Impairment
3% UEI
[14] Upper Extremity Impairment (UEI).
This UEI rating converts to a WPI rating of 2% using Table 3, AMA 4, page 3/20 to convert UEI to WPI.
CONCLUSION
Ms Louizas has a WPI of 12% on the basis of the above findings summarised as follows:
(a) cervicothoracic spine – DRE II – 5% WPI;
(b) lumbosacral spine – DRE II – 5% WPI, and
(c) left shoulder – restricted range of motion - 2%.
As the claimant’s WPI is greater than 10% it follows that the certificate of Medical Assessor Dias must be revoked and a fresh certificte issued.
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