Maarabani v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 513
•29 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Maarabani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 513 |
CLAIMANT: | Yusuf Maarabani |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 29 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute as to degree of whole person impairment as a result of injury caused by the motor accident; claimant a passenger in a high performance vehicle that aquaplaned and ran out of control colliding with a tree and rock; injuries to the abdomen, cervical spine, shoulders, sternum fracture, thoracic spine and scarring; inconsistency in shoulder movements; analogy utilised in assessing impairment; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certficate of Medical Assessor Ian Cameron dated 31 December 2023. |
STATEMENT OF REASONS
INTRODUCTION
Mr Yusuf Maarabani (the claimant) suffered injury on 21 March 2021 when he was a passenger in a vehicle that hit a pool of water, aquaplaned and went off the road and crashed into a tree and a rock. The claimant was 24 years of age at the time of the accident.
The claimant subsequently lodged both a claim for statutory benefits and claim for damages with the compulsory third party insurer of the vehicle, Insurance Australia Limited t/as NRMA (the insurer).
The insurer has a liability to pay Mr Park statutory benefits and/or damages in accordance with the provisions of the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute before the Review Pane is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
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 Ian Cameron who issued a certificate dated 31 December 2023 certifying that the claimant’s physical injuries caused by the motor accident gave rise to a whole person impairment that is not greater than 10%.
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.[2]
[2] Section 7.26(10) of the MAI Act.
The President’s delegate, by way of determination dated 12 March 2024, 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.[3]
[3] Section 7.26(5) of the MAI Act.
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.[4]
[4] 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.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
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.[7]
[7] Clause 6.2 of the Guidelines.
The Panel issued interim directions dated 15 March 2024 requiring the parties to each lodge a bundle of all documents relied upon.
The Panel convened via teleconference on 30 April 2024. The Panel decided that a re-examination of the claimant was necessary and an examination was arranged to occur on 15 May 2024 with Medical Assessor Oates.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron certified the claimant as suffering a 9% whole person impairment due to injuries caused by the accident.
The Medical Assessor, following examination, found markedly and symmetrically reduced range of motion (to 40% normal) of the cervical spine in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.
He found inconsistent movements at both shoulders with the claimant explaining it was due to variable pain. A full range of motion of the upper extremity joints are noted with no neurological abnormalities of the upper limbs.
In respect of the thoracic and lumbar spines, the Medical Assessor notes similar findings to that of the cervical spine.
In respect of diagnosis, the Medical Assessor opines the claimant suffered abdominal injuries including a ruptured spleen as a result of the accident together with soft tissue injuries to other body parts. He found soft tissue injuries to the cervical spine, thoracic spine, left and right shoulders together with abdominal scarring and a fractured sternum.
With respect to whole person impairment, the Medical Assessor found 3% in respect of the ruptured spleen (cl 6.241 of the Guidelines).
The Medical Assessor found the claimant to be suffering a Diagnosis-related estimate (DRE) category I in respect of the cervical and thoracic spines giving rise to a 0% whole person impairment.
In respect of the shoulder injuries, on account of inconsistent movements on examination, in accordance with cl 6.40 of the Guidelines the Medical Assessor utilised analogy to assess impairment, finding the impairment would be equivalent to a mild crepitation giving rise to a 2% whole person impairment for each shoulder.
No impairment was found in respect of the sternal fracture, noting cl 6.229 of the Guidelines.
The Medical Assessor found a 2% whole person impairment in respect of scarring, applying the table for the evaluation of minor skin impairment (TEMSKI) scale.
DOCUMENTATION
The Panel has considered all documents included in the parties’ bundles lodged in accordance with the Panel directions dated 15 March 2024. The Panel has also considered the late additional documents lodged, including clinical records of Advanced Health Medical AKA Balsam Medical Centre as at 6 October 2022, and the documents included in the insurer’s application to admit late documents dated 6 May 2024.
SUBMISSIONS
Claimant submissions dated 8 February 2024
These submissions were lodged seeking a review of the medical assessment of Medical Assessor Cameron.
The claimant submits that the Medical Assessor failed to set out his path of reasoning in respect of his findings as to whole person impairment and he failed to comply with cl 6.41 of the Guidelines.
It is alleged that the Medical Assessor did not explain what the inconsistent shoulder movements was inconsistent with. It is suggested that the finding that “Mr Maarabani had inconsistent movement at his shoulders that he said was due to variable pain from his shoulders” is ambiguous.
The claimant submits that the Medical Assessor failed to comply with cl 6.41 of the Guidelines. It is further alleged that the Medical Assessor is in error by applying cl 6.24 of the Guidelines in circumstances where the subject condition is covered by the Guidelines of the AMA 4.
Further, it is submitted that the Medical Assessor failed to explain how the analogy adopted to assess impairment of the shoulders was deemed appropriate.
Insurer submissions dated 27 February 2024
These submissions are in reply to the claimant’s application seeking a review.
The insurer refutes the suggestion that the Medical Assessor did not provide adequate reasons in respect of inconsistent shoulder movements. The insurer refers to the requirements of cl 6.84 of the Guidelines that require three repeated consistent measurements with the use of a goniometer. The insurer notes that the Medical Assessor noted that in his judgement it was not appropriate to rely on the measured range of motion in this case.
The insurer submits that the Medical Assessor complied with cl 6.40 of the Guidelines and that the Medical Assessor addressed the inconsistencies with the claimant in compliance with cl 6.41 of the Guidelines.
MEDICO-LEGAL REPORTS
Neil Berry, specialist general surgeon, in a report dated 4 November 2022 addressed to the claimant’s lawyers diagnosed the claimant as suffering injuries to the neck, thoracic spine and an abdomen injury as a result of the accident.
On examination of the cervical spine no paraspinal muscle spasm was noted and similar findings made in respect of the throracolumbar spine. Examination of the shoulders demonstrated full range of movement. Dr Berry assessed the cervical and thoracic spine injuries as DRE II (5% whole person impairment) on the basis of dysmetria, and abdominal scarring at 2% WPI. The combined impairment was 12% whole person impairment.
In a report addressed to the claimant’s representatives dated 17 February 2023, occupational physician Dr Dryson noted some loss of range of motion of the shoulders in all directions. Whilst Dr Berry found a normal lumbar spine on examination, Dr Dryson found some loss of range of motion of the lumbar spine and the cervical spine. He provided an assessment of 27% whole person impairment (2% for scarring, and 5% for the cervical and lumbar spines with a finding of DRE II, and 10% for the right shoulder and 9% for the left shoulder).
Dr Truskett, general surgeon, in a report dated 11 June 2023 addressed to the insurer’s lawyers found an 8% whole person impairment. In this regard, DRE I was assessed for the cervical, thoracic and lumbar spines. He found a 1% whole person impairment of the right shoulder and 3% of the left shoulder. He found a 3% whole person impairment in respect of the spleen injury and arrived at a 1% whole person impairment for scarring.
RE-EXAMINATION
Details of who attended the Assessment
Mr Maarabani attended the Commission Medical Suites on 15 May 2024 unaccompanied and was assessed by Medical Assessor Oates on behalf of the Medical Review Panel as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Mr Maarabani said that he is left-handed, is separated and has one son. He lives in a flat attached to his aunt’s home.
At the time of the subject accident, he was working as an apprentice plumber. He told me he has not returned to work since the motor vehicle accident and is receiving insurance benefits.
He wears hearing aids for a congenital hearing loss.
There was an earlier motor vehicle crash in July 2017 in which he sustained injury to the lower back and shoulder. These injuries resolved and he made no compulsory third party (CTP) claim.
At the age of 15, he had a laceration to the right palm and had surgery to repair the flexor tendon which was successful.
He has had no other relevant past history and was taking no regular medications before the accident.
He smokes 5-10 cigarettes a day but does not drink alcohol.
History of the motor accident
Mr Maarabani said on 23 March 2021 he was the front seat passenger in a Lamborghini high performance sports car. He was wearing a seatbelt. The car had been hired for a wedding. The car hit a pool of water on the road in rainy weather at high speed and aquaplaned, veering off the road, and the left front section of the car hit a tree.
The front passenger scissor door was ripped off and the front left wheel also came off in the impact. The car then slid until it stopped against a pipe running across the footpath. He remembers the impact but then does not remember anything until after his surgical operation.
The ambulance attended and the ambulance notes indicate the Lamborghini sports car hit a tree on the passenger side and travelled about 200m down the road before coming to a stop. There was significant damage to the front passenger side of the vehicle, with the passenger door off the vehicle and the passenger seat anchor bolt detached from the seat.
The claimant had self-extricated from the vehicle and walked independently into a car which was uninvolved in the accident. The patient was amnesic to the event and non-compliant with paramedic questions, screaming that his chest and stomach hurt but was unable to qualify pain or identify other injuries.
Police back-up was requested due to the claimant’s combative behaviour and he was non-compliant with independent management of the cervical spine, fighting manual stabilisation and constantly moving the head. He was eventually extricated from the other vehicle via spine board and transported to Liverpool Hospital.
A CT abdomen, pelvis and chest, along with chest X-ray, CT cervical spine and CT thoracic aortogram and pelvis, were performed. There was no acute fracture or dislocation of the cervical spine. There was a large volume haemoperitoneum with extensive traumatic splenic injury. There was no acute fracture of the lumbosacral spine. There was a displaced complete fracture through the inferior body of the sternum but no displaced rib or thoracic spine injuries.
He had a trauma laparotomy at which was noted two litres of haemoperitoneum, and he underwent splenectomy. Chest drains were inserted into both lungs for haemopneumothoraces. He was in hospital for 21 days. He was then discharged but re-admitted the next day with a bowel obstruction. This was treated with insertion of a nasogastric tube and intravenous fluids for three days, until the obstruction cleared itself.
History of symptoms and treatment following the motor accident
He then saw a general practitioner (GP), Dr Balsam, at Hoxton Park Medical Centre. He was on a long course of antibiotics and also had Salpraz and Tramadol for about 18 months, after which this was changed to Lyrica.
He had physiotherapy for about 12 months for musculoskeletal injuries, with treatment to the upper back. He also had neck pain radiating to the right upper trapezius and right-sided low back pain for which he had physiotherapy treatment.
He was referred to Dr D Manohar, pain specialist, who saw him once and proposed a pain management program but this was declined by the insurer.
He also saw a psychologist and psychiatrist and was prescribed Valium and Efexor.
Details of any relevant injuries or conditions sustained since the motor accident.
In late 2021, he was in another motor vehicle accident where he was the driver, wearing a seatbelt, with no passengers. He was in the centre lane (2) of a three lane carriageway, and a car travelling in the same direction moved across from the middle lane (3) to the centre lane (2) and hit the left front area of his car. The other car spun but his car just stopped. The airbag did not deploy.
He called the ambulance for the other driver, a female, but he sustained no injuries from this accident. His car was still driveable and repaired but he doesn’t know the cost.
He later developed problems with his gall bladder and had a laparoscopic cholecystectomy in May 2023 at Campbelltown Hospital with benefit. The surgery was technically difficult because of the abdominal scarring following his trauma laparotomy from the subject accident.
Current symptoms
He has upper back pain if he tries to lift objects and indicates the muscles behind the shoulder blades on both sides.
His sleep is disturbed by thoughts of the accident and he doesn’t have a good appetite. His weight goes up and down.
His neck gets stiff and aches in cold weather. He gets tingling down the ulnar aspect of both forearms to the ulnar three fingers, to the same extent in the right and left sides. These symptoms do not follow a specific spinal nerve root distribution and thus do not represent non-verifiable radicular complaints.
His low back hurts intermittently but is not as bad as the upper back. The legs are asymptomatic.
He has scars on the abdomen and his sternum hurts if he tries to stretch his chest. He is embarrassed by the abdominal scars and hides them.
He drives a car. He lives alone in a flat. His aunt, who lives in a house on the same site, does the housework and brings him food. Her husband does the yard work.
He sits and watches TV. He has no social life and doesn’t do any physical exercise.
Current and proposed treatment
He takes Efexor twice daily and Valium as required to help sleep. He is on no other medications.
He last had physiotherapy in early 2023. He still attends the Hoxton Park Medical Centre, seeing the GP on duty.
EXAMINATION
General presentation
He was of proportionate build with height 184cm and weight 100.9kg. Left hand dominant.
He had a flat affect.
He removed his jacket and was not wearing a shirt underneath, he said so that the scars could be easily examined like they were in the past. He removed his scuffs. His track pants were pulled up to examine the legs. They did not require to be removed.
He was wearing hearing aids.
Cervical spine (cervicothoracic)
There were no upper extremity paraesthesia complaints present today, but he said they had last been present the night before this examination. There was no guarding, there was no dysmetria. As indicated above, there are no non-verifiable radicular complaints (NVRC).
Flexion and extension were one-half normal, lateral flexion was one-quarter normal bilaterally and rotation was one-half normal bilaterally with complaint of trapezial pain. The reflexes were present but all of low amplitude.
Power was normal. Sensation to light touch and pin prick was reduced in the ulnar aspect of the right hand. Although power in the upper limbs was equal, there was reduced effort exerted bilaterally. There was also reduced pin prick sensation on the ulnar aspect of the left forearm.
Upper arm girth; right 31cm, left 31.5cm.
Forearm girth; right 30.5cm, left 31cm – consistent with stated left hand dominance.
Thoracic spine (thoracolumbar)
There were no non-verifiable radicular complaints. There was no guarding. There was no dysmetria.
Flexion was three-quarters of normal bilaterally. Sensation over the trunk was intact.
Lumbar spine (lumbosacral)
There was no guarding, there was dysmetria, there were no non-verifiable radicular complaints.
Flexion and extension were two-thirds of normal and lateral flexion was three-quarters of normal bilaterally. Reflexes were symmetrical with plantar responses both flexor. Power and sensation in the lower limbs were normal.
Thigh girth; right equals left equals 50cm at 10cm above the superior patellar pole.
Leg girth; right 39.5cm, left 39cm at 15cm below the inferior patellar pole.
Supine straight leg raising was 60° bilaterally with complaint of low back pain but negative nerve stretch.
Right and left shoulders
Active range of movement (ROM) was measured three times using a goniometer.
Shoulder Movements
Active ROM measured right
Active ROM measured left
Flexion
90°, 90°, 100°
100°, 100°, 80°
Extension
40°, 30°, 20°
30°, 30°, 20°
Abduction
90°, 80°, 80°
90°, 70°, 70°
Adduction
40°, 30°, 30°
40°, 20°, 20°
External rotation
80°, 70°, 50°
70°, 60°, 40°
Internal rotation
60°, 70°, 40°
70°, 50°, 40°
Active ROM and flexion in both shoulders was said to be limited by upper trapezial and peri-scapular discomfort, but not by any shoulder joint pain.
Chest
No tenderness over sternum.
Scarring
There was a healed, vertical, longitudinal scar 25cm long x up to 1cm wide in the abdomen, passing to the right of the umbilicus, with multiple visible suture marks. There was no adherence but the scar was atrophic. There were 2cm stab scars in the right and left anterior chest from insertion of chest drains.
There were also multiple endoscopic portals to the left of the main abdominal scar and in the right upper quadrant for laparoscopic cholecystectomy.
Consistency of presentation
I asked Mr Maarabani why there was reduced range of movement in the shoulders, which was more evident on repeated testing, and he said it was because of increasing pain felt causing him to restrict the movements when movements were repeated multiple times.
MEDICAL IMAGING
There were no imaging films or reports brought to this Panel re-examination.
From the file:
·5 May 2022 – MRI cervical and thoracic spine showed small protrusion at C3/4, C4/5 and C5/6 levels with no neural impingement and a posterolateral T7/8 protrusion with no neural impingement, and
·11 August 2022 – MRI lumbar spine showed no central canal or neural exit foraminal narrowing and no nerve root impingement.
Mr Maarabani told me that he had had no imaging of the shoulders.
DETERMINATIONS – PERMANENT IMPAIRMENT
Diagnosis, causation and reasons
Abdomen
There was a ruptured spleen and other internal abdominal injuries associated with a haemoperitoneum. The accident was a cause of this injury, as it is mentioned in the Claim Form, in the ambulance record, the hospital record and GP record of 13 April 2021.
Cervical spine
There was a soft tissue injury to the cervical spine. The accident was a cause of this injury, as it is mentioned in the Claim Form and a CT scan of cervical spine was performed in hospital, and it is mentioned in the GP record of 13 April 2021. It was noted an MRI scan was performed in May 2022 on account of the complaint of pins and needles in the hands.
Right and left shoulders
There was no evidence of direct injury to the shoulder joints. Shoulder pain is mentioned in the GP record of 13 April 2021.
The claimant clarified that the shoulder girdles, rather than shoulder joints, were affected by referred symptoms from the cervical spine.
The Panel is satisfied that on the balance of probabilities the claimant has suffered left and right shoulder girdle soft tissue injuries caused by the motor accident.
Scarring
The abdomen is the site of a significant trauma laparotomy scar. The accident was a cause of this injury, as it was performed for treatment of the abdominal injuries referred to above.
Sternum – fracture
The accident was a cause of this injury, as it is mentioned in the ambulance record with complaints of chest pain, the hospital record and the GP record of 13 April 2021.
Thoracic spine
This was the site of soft tissue injury. The accident was a cause of this injury as it is mentioned in the Claim Form and an MRI scan was done of this area in May 2022 because of continuing symptoms. It is also mentioned in the GP record of 13 April 2021, where low back pain is mentioned. An MRI scan of the lumbar spine was done on 11 August 2022 for bilateral leg pain and pins and needles, which symptoms are no longer present.
Note - a subsequent abdominal ultrasound scan done on 2 June 2022 was done for gallstone disease and was not related to the motor vehicle accident.
DETERMINATIONS
Permanent Impairment
Abdomen
The claimant has undergone splenectomy for a traumatic rupture of the spleen. This gives 3% whole person impairment (cl 6.241 of the Guidelines).
Cervical spine
There is a soft tissue injury. There is no guarding, no dysmetria and no non-verifiable radicular complaints and no radiculopathy.
The sensory symptoms complained of affecting the ulnar left forearm and ulnar right hand do not follow a specific spinal nerve root distribution, but rather suggest a possible peripheral nerve condition, but this has not been investigated or diagnosed and is not assessable for permanent impairment.
The differentiators which are present clinically place him in DRE Cervicothoracic Category I giving 0% whole person impairment.
Right and left shoulders
Because of the variability at the re-examination of active range of movement when measured three times in both shoulders, the Panel concluded that active range of movement cannot be used as a reliable and accurate method of assessing permanent impairment.[8]
[8] Clause 6.84 of the Guidelines.
An analogy was chosen. The condition chosen was crepitation of the acromioclavicular joint. This analogous condition was chosen as symptoms produced by this condition can include pain on elevation of the shoulders, which is similar to the complaint made by the claimant at re-examination. The Panel considered this therefore is the most appropriate analogy.
Mild crepitation in severity gives 10% impairment of the joint. The acromioclavicular joint is 25% upper extremity impairment. 10% of 25% is 2.5% rounded to 3% upper extremity impairment for the right shoulder and 3% upper extremity impairment for the left shoulder. This is equivalent to 2% whole person impairment from the right and left shoulders respectively.
Scarring
Using criteria from the TEMSKI table, the injured person is conscious of the scar and there is noticeable colour contrast of the scar with surrounding skin. The injured person is able to easily locate the scar, there are trophic changes evident to touch and there are clearly visible suture marks. The anatomical location of the car would not be visible with usual clothing but would be visible where the shirt is removed, such as at the beach. There is a minor contour defect visible but only minor or no limitation in the performance of activities of daily living (ADLs), with no requirement for treatment and no adherence.
The best fit under TEMSKI is 2% whole person impairment.
Sternum fracture
This injury has resolved and results in no assessable permanent impairment.
Thoracic spine
This area is still symptomatic. There is no dysmetria, no guarding and no non-verifiable radicular complaints and no radiculopathy. The clinical differentiators present lead to DRE Thoracolumbar Category I giving 0% whole person impairment.
CONCLUSION
The combined whole person impairment is 9% WPI.
The Panel notes that the claimant stated that the low back is intermittently uncomfortable but not as bad as the upper back, and there are no radiating symptoms to the lower extremities. This part was not a referred injury, but was assessed by Drs Berry, Dryson and Truskett, whose independent medical examiner (IME) reports are in the file of evidence, and therefore this part was examined at the Panel re-examination. There was no guarding, no dysmetria and no NVRC’s and no radiculopathy.
The differentiators present on the clinical examination would place him in DRE Lumbosacral Category I giving 0% whole person impairment.
The Panel notes the claimant’s submission expressing error in that Medical Assessor Cameron failed to disclose the path of reasoning with respect to findings as to the assessment of permanent impairment of the shoulders and failed to bring the purported inconsistency to the claimant’s attention.
The Panel re-examination has brought inconsistency in shoulder range of movement to the attention of the claimant and his answer was recorded.
The findings above clearly explain the rationale for using an analogous condition to assess permanent impairment and reasons for the particular analogous condition which was chosen, utilising the prescribed discretion set out in cl 6.84(e) of the Guidelines.
For the reasons set out above, the Panel affirms the medical assessment certificate of Medical Assessor Ian Cameron dated 31 December 2023
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