Mansour v Cic Allianz Insurance Limited
[2024] NSWPICMP 719
•17 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Mansour v CIC Allianz Insurance Limited [2024] NSWPICMP 719 |
CLAIMANT: | Alice Mansour |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 17 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; cervical spine; lumbar spine; right shoulder; assessment by analogy; pre-existing conditions; medical review of certificate of Medical Assessor (MA); claimant suffered injury in an accident on 14 April 2020; the dispute related to the assessment of WPI of the cervical spine, lumbar spine, and right shoulder; MA assessed 0% WPI; Held – Briggs v IAG Limited trading as NRMA Insurance cited; soft tissue injury to cervical spine caused by accident; soft tissue injury to lumbar spine caused by accident; injury to right shoulder, namely bursitis and SLAP (superior labrum from anterior to posterior) tear caused by accident; cervical spine assessed as DRE cervicothoracic category II or 5% WPI; lumbar spine assessed as DRE cervicothoracic category I or 0% WPI; inconsistency in range of movement of right shoulder demonstrated on examination so right shoulder assessed by analogy by reference to shoulder crepitus in the acromioclavicular joint at 3% WPI; Medical Assessment Certificate revoked; injures caused by accident gave rise to 8% WPI. |
DETERMINATIONS MADE: | WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated · cervical spine – soft tissue injury; · lumbar spine – soft tissue aggravation of the pre-existing degenerative condition, and · right shoulder – bursitis and SLAP (superior labrum from anterior to posterior) lesion. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 14 April 2020 Ms Alice Mansour (the claimant) was driving her car when another car failed to give way and collided with the driver’s side of her car causing her car to spin and hit a tree on the passenger side of the car before it stopped (the accident).
Ms Mansour was 50 years of age at the date of accident and is now 55 years of age.
Ms Mansour has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Mansour under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Alexander Woo who issued a certificate dated 5 February 2024. It is that certificate which is the subject of this review.
DOCUMENTS BEFORE THE REVIEW PANEL
On 23 February 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 317 (claimant’s documents).
On 7 May 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 189 (insurer’s documents).
On 12 July 2024 in response to a Direction from the Panel the claimant uploaded an updated copy of the clinical notes of Guirguis Family Medical Practice (Dr Guirguis’ notes). Further clinical notes were uploaded by the claimant on 16 July 2024 (Dr Guirguis’ additional notes).
The Panel asked the claimant to identify and provide a copy of the clinical notes of the “different GP” referred to in the clinical notes of Dr Soliman on 3 March 2020. The Panel was informed the claimant sought treatment from a different GP (general practitioner) but she cannot remember the name of that GP.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
OTHER MEDICAL ASSESSMENT CERTIFICATES
Certificate of Medical Assessor Shane Moloney
Medical Assessor Moloney issued a certificate dated 7 March 2022 in which he certified the following injuries caused by the accident were minor (threshold) injuries:
· cervical spine – soft tissue injury;
· lumbar spine – aggravation of soft tissue injury, and
· right shoulder – soft tissue injury.[3]
[3] Claimant’s documents p 29.
Certificate of Medical Assessor Michael Li Ying Hong
Medical Assessor Hong issued a certificate dated 20 November 2021 in which he certified the following injury caused by the accident was not a (minor) threshold injury:
· post-traumatic stress disorder (aggravation).[4]
[4] Claimant’s documents p 21.
Certificate of Medical Assessor Yu Tang Shen
Medical Assessor Yu Tang Shen issued a certificate dated 28 September 2023 in which he assessed a 20% WPI in respect of post-traumatic stress disorder caused by the accident.[5] This assessment is subject to a review application.
CERTIFICATE UNDER REVIEW
[5] Claimant’s documents p 9.
Certificate of Medical Assessor Alexander Woo
Medical Assessor Woo issued a certificate dated 5 February 2024.[6] The following injuries were referred to Medical Assessor Woo for assessment as to permanent impairment:
· cervical spine – discal damage compressing the spinal cord;
· lumbar spine – discal damage compressing the spinal cord, and
· right shoulder – significant bursitis and SLAP lesion. Restriction of shoulder movement.
[6] Claimant’s documents p 280.
Medical Assessor Woo reported the claimant’s involvement in an earlier motor vehicle accident on 7 June 2016 (the 2016 accident) when she injured her neck, right shoulder, lower back and three teeth. She underwent treatment including medication, physiotherapy and epidural injection for the L5/S1 and L4/5 disc levels. Ms Mansour settled a claim in 2018.
Medical Assessor Woo reported Ms Mansour continued to have lower back pain noting she underwent an MRI of the lumbar spine on 21 February 2020. He also noted a history of adjustment disorder with anxiety and depression. Ms Mansour underwent gastric banding in November 2020.
Medical Assessor Woo reported police and ambulance did not attend the scene. Her son attended and took her to his home. She started to have pain in her neck, lower back and right shoulder. She consulted her GP Dr Soliman and was referred for an X-ray of the cervical spine. She later attended Dr Emil Guirguis, GP who referred her for MRI investigations of the cervical and lumbar spine. She was subsequently referred to
Dr Medhat Guirgis who she saw on 1 September 2020.Medical Assessor Woo found tenderness in the cervical spine with range of movement restricted to 2/3 of normal in all directions. There was no dysmetria. He reported non-verifiable radicular complaints, namely numbness of both arms. He also reported muscle guarding which he thought was self-limited. The neurological examination of both upper limbs was normal.
He reported tenderness in the lumbar spine, flexion was nil, restricted by severe pain. Extension was ½ normal, and lateral flexion was near normal to both sides. He reported straight leg raising was 40° on the right and 50° on the left with associated lower back pain. Sciatic nerve root tension signs were negative. There was no dysmetria, but Medical Assessor Woo reported non-verifiable radicular complaints, namely numbness in both legs. He noted muscle guarding which he thought was voluntary. He reported the knee reflex was normal and symmetrical. The right ankle reflex was absent. There was no weakness and no atrophy. He reported the deranged sensation of the left lower limb did not localise to any spinal nerve root.
In relation to the right shoulder, he noticed anterior tenderness over the acromioclavicular joint. He noted the suggestion of voluntary guarding.
Medical Assessor Woo measured active range of movement (ROM) as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
150°
Extension
30°
40°
Adduction
30°
40°
Abduction
90°
150°
Internal Rotation
70°
80°
External Rotation
90°
90°
Medical Assessor Woo reviewed earlier reports and the medical imaging.
He concluded Ms Mansour had sustained soft tissue injury to the cervical spine, the lumbar spine and the right shoulder caused by the accident. He assessed a 5% WPI of the cervical spine, 5% WPI of the lumbar spine and 2% WPI of the right shoulder. He noted Professor Cameron assessed 5% WPI of the cervical spine, 5% WPI of the lumbar spine and 2% WPI of the right shoulder on 23 June 2018 which he concluded was to be deducted from the current impairment arriving at a 0% WPI caused by the accident.
REVIEW PROCEDURE
On 23 February 2024 Ms Mansour sought a review of the medical assessment of Medical Assessor Woo.
On 18 April 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[7]
[7] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8] The review is by way of a new assessment of all matters with which the medical assessment is concerned.
[8] Rule 128 of the PIC Rules.
On 29 May 2024 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits (the application)
In the application dated 7 May 2020 Ms Mansour described her injuries as neck and back pain. She also noted she had neck and back pain from a previous car accident in 2016.[9]
Treating medical evidence
[9] Claimant’s documents p 253.
Clinical notes of Dr Eric Lim, general practitioner
On 5 August 2016 Dr Lim reported Ms Mansour was driving when her car was hit by the car behind while stopped in a traffic jam. He recorded persistent back pain, neck pain, facial injury and shoulder pain.[10] He noted restriction of movement of the cervical and lumbar spine.
[10] Insurer’s documents p 119.
On 1 December 2017 Dr Lim provided a report in respect of the 2016 accident.[11] He diagnosed cervical spine radiculopathy, right shoulder injury, lumbar spine radiculopathy, post-traumatic stress disorder and dental injury.
[11] Insurer’s documents p 181.
On 29 June 2018 Dr Gavin Soo reported the motor vehicle accident in June 2016.[12] He reported pain immediately to the lower back and neck. The lower back pain was constant, central and radiating up either side of the back with occasional radiation to the buttock and legs and occasional numbness to the right thigh. Dr Soo noted an MRI scan showed mild central stenosis of L4/5 from posterior disc bulge, no nerve root compression. He noted
Ms Mansour had chronic back pain for two years post-accident. On the same day Dr Lim reported the claimant had chronic disc protrusion with tears.[12] Insurer’s documents p 74.
On 3 August 2018 physiotherapist Aaron Poon reported the claimant still had pain in the neck and low back.[13]
[13] Insurer’s documents p 73.
Associate Professor Peter Papantoniou, orthopaedic surgeon
A/Prof Papantoniou assessed Ms Mansour on 24 May 2017 following her involvement in the 2016 accident.[14] He reported following the accident she developed right neck pain, right lower back pain, a right L5 radiculopathy and paraspinal muscle spasm on the right which had progressively worsened.
[14] Claimant’s documents p 165.
He reported she presented with an MRI which demonstrated L4/5 posterior disc bulging with an annular tear and impingement on the right traversing the L5 nerve root.
A/Prof Papantoniou concluded Ms Mansour suffered an acute L4/5 disc injury as a result of the 2016 accident. He recommended a right directed L4/5 epidural steroid injection.On 15 August 2017 A/Prof Papantoniou reported Ms Mansour had an L5/S1 epidural steroid injection which relieved her pain for about one day. He again referred her for a right L4/5 foraminal epidural steroid injection.
Allcare Carnes Hill Medical Centre clinical records
The only entry on 18 September 2017 relates to the claimant being overweight.
Our Medical Home Marsden Park clinical records
In consultations on 13 August 2018, 22 October 2018, 20 November 2018, 9 January 2019 and 9 April 2019 no complaints are recorded in relation to the neck, lower back or right shoulder.
On 3 March 2020 Dr Soliman reported; “has court case – compensation – car accident – follow up with different GP”.
On 14 April 2020 Dr Soliman reported the claimant was driving when a car from a right side street hit the back side of her car causing it to spin once.[15] He reported she still was under a claim since the 2016 accident and had ongoing treatment with Dr Lim at Paramatta and physiotherapy. He reported the right sided neck pain was worse. Her movements were stiff, and she was concerned about her pain.
[15] Claimant’s documents p 52.
Dr Emil Guirguis, Guirguis Family Medical Practice clinical notes
On 21 October 2019, 2 January 2020, and on 11 February 2020 Dr Guirguis reported:
“lower back pain, associated with stiffness and numbness, extends to involve the lower imb, ↑ in frequency by the passage of time, occurs in episodes, ↑ towards the end of the day, ↑ by sitting or standing for long periods ↑ by lifting weights.”
The examination findings were:
“↓ lower lumbar lordosis, spasm in the para spinal muscles, ↓ range of movement, ↓ straight leg raising, localised tenderness over L4, 5 and S1, tenderness over the sacroiliac joint, no neurological deficit in the lower limb.”[16]
[16] Claimant’s documents p 194-196.
On 20 April 2020 Dr Guirgis recorded:
“MVA 15/4/20: while she was driving the car wearing seatbelt, it was hit by another car from the R side, jolted forwards and backwards sustaining injuries to the neck and lower back, told me that on impact shock was felt, since then c/o neck & lower back pain.”
On examination Dr Guirguis reported “no obvious swelling or bruise, localised tenderness over the lower cervical & lower lumbar spine, ↓ movement in all affected areas, ↓ straight leg raising, obvious spasm in the para spinal muscles, no neurological deficit”.[17]
[17] Claimant’s documents p 197.
On 7 May 2020 Dr Guirguis recorded neck pain and on 8 May 2020 she recorded lower back pain.
On 11 May 2020 Dr Guirgis recorded right shoulder pain increased by repetitive movement and actions including abduction, flexion and external rotation.[18] On examination Dr Guirguis recorded loss of range of movement in all directions and tenderness over the tip of the acromioclavicular joint.
[18] Claimant’s documents p 198.
On 3 June 2020, 10 August 2020, 23 September 2020, 19 October 2020, 28 October 2020, 13 November 2020, 18 November 2020, 4 January 2021, 1 February 2021,
26 February 2021, 15 March 2021, 6 May 2021, 20 May 2021, 27 July 2021, 5 August 2021, 6 October 2021, 26 November 2021, 31 January 2022, 22 February 2022, and 4 April 2022, Dr Guirguis reported lower back pain associated with stiffness and numbness extending to the lower limbs. On examination he reported, “lower lumbar lordosis, spasm in the para spinal muscles, range of movement, straight leg raising, localised tenderness over L4, 5 & S1, tenderness over the sacroiliac joint”. On 4 May 2022, 24 August 2022, and
5 December 2022 his examination report also included “no neurological deficit in the lower limb”.On 19 September 2022, 19 December 2022, 23 March 2023, 22 June 2023, 21 July 2023,
10 November 2023 and 15 November 2023 Dr Guirguis reported lower back pain associated with stiffness and numbness extending to the lower limbs. On examination he reported, “↓ lower lumbar lordosis, spasm in the para spinal muscles, ↓ range of movement, ↓ straight leg raising, localised tenderness over L4, 5 & S1, tenderness over the sacroiliac joint”.On 21 August 2023 Dr Guirguis reported lower back pain associated with stiffness and numbness extending to involve the lower limb. On examination he reported, “↓lower lumbar lordosis, spasm in the para spinal muscles, ↓range of movement, ↓straight leg raising, localised tenderness of L4,5 & S1, tenderness over the sacroiliac joint, neurological deficit in the lower limb”.
On 21 July 2020, 10 August 2021 and 18 January 2022 Dr Guirguis reported neck pain radiating to the arm, hand and fingers. He also reported on examination “cervical lordosis, range of movement in all directions, spasm of the para spinal muscles, tenderness over C4, 5, 6 & 7, no neurological deficit in the upper limb”.
On 12 April 2021, 31 August 2021, 4 November 2021, 4 July 2022, 7 August 2023,
10 January 2024, and 11 April 2024 Dr Guirguis reported “pain all over the body gets worse at night and with mild activity, insomnia due to pain, ↑ pain by sneezing, coughing and repetitive movement, can’t lift up heavy weights, tingling and numbness”.[19][19] Dr Guirgis notes p 1.
On 17 June 2021, 20 September 2022, 24 March 2023, 16 February 2024 and
29 March 2024 Dr Guirguis reported headache, not associated with neck pain.
Our Medical Home Marsden Park Physiotherapy
Ms Mansour was assessed on 12 August 2020 by physiotherapist. In an undated report
Mr Leon Li reported the claimant’s involvement in the accident, he noted she had suffered similar injuries to her neck and back in the 2016 accident, but she felt the symptoms were severely aggravated by the accident.[20] Mr Li reported Ms Mansour worked as a community carer five to six hours a day. His impression was of cervical musculo-ligamentous strains and lumbar spine musculo-ligamentous strains with possible discogenic/neurogenic pathologies.[20] Claimant’s documents p 112.
In an Allied health recovery request, No 2 (AHRR) dated 20 September 2021 Mr Li reported the areas addressed were the cervical spine, the right shoulder and the lumbar spine.[21]
[21] Claimant’s documents p 222.
On 30 November 2020 Ms Mansour underwent laparoscopic sleeve gastrectomy.[22]
[22] Claimant’s documents p 116.
Dr Medhat Guirgis, orthopaedic specialist
On 24 September 2020 Dr Medhat Guirgis provided a short report as to diagnosis but does not explain the basis of his opinion. He diagnosed:
· post-traumatic mechanical derangement of the cervical and lumbar area of the spine, and
· post-traumatic symptoms of subacromial impingement in the right shoulder joint.[23]
[23] Claimant’s documents p 246
Medhat Metry, psychologist
Mr Metry provided a report dated 16 September 2021.[24] Ms Mansour first consulted Mr Metry on 1 October 2020 when she presented with symptoms of anxiety and depression. Mr Metry reported since the accident the claimant had suffered from injuries to her neck and back and persistent headaches. Mr Metry diagnosed a major depressive disorder.
[24] Claimant’s documents p 201.
Imaging
MRI lumbosacral spine, 9 February 2017 – the report reads:
“Sagittal T2 imaging demonstrates some minor disc desiccation across all imaged levels with normally maintained lumbar lordosis. Conus is at about the L1/2 level. It and the cauda equina unremarkable.
At L1/2, some minor anterior disc bulge.
At L2/3, minimal disc desiccation.
At L3/4, disc desiccation and minimal disc bulge. Mild flaval hypertrophy and facet joint OA. No central canal, lateral recess or foraminal stenosis.
At L4/5, disc desiccation and mild diffuse disc bulge. Small left foraminal annular tear with associated minimal disc bulging. Also flaval hypertrophy and facet joint OA. This combination of factors causing some minor central bunching of the nerve roots consistent with a minor degree of central canal stenosis. Also, mild disc extension into the foramen with mild narrowing.
At L5/S1, there is disc desiccation and posterocentral disc bulge. Minor flaval hypertrophy and facet joint OA. No central canal or foraminal stenosis.
Interpretation: Multilevel for the most part mild spondylitic changes. At L4/5 a combination of diffuse disc, flaval hypertrophy and facet joint OA clearly causing a mild degree of central canal stenosis with central bunching of the nerve roots. There is a left foraminal annular tear and minor diffuse disc bulge minimally distorting the exiting L4 nerve roots within the foramina, either may be irritated.”[25]
[25] Claimant’s documents p 174.
MRI lumbosacral spine, 19 June 2019 – the report read:
“Findings: Normal lordosis of lumbar spine. No spondylolisthesis and no vertebral body fracture. Conus medullaris terminates at the T12/L1 level. Cauda equina nerve roots are freely and evenly distributed in the thecal sac.
At the L3/4 level, there is mild posterior annulus bulge. No annulus tear and no canal or foraminal stenosis seen. Facet joints appears mildly degenerative.
At the L4/5 level, there is broad-based disc bulging flattening the anterior thecal sac with mild facet joint changes and mild central canal stenosis. Foramina appear mildly narrowed with no visualised nerve root compression. There is a left and right foraminal annulus tear incidentally seen.
At the L5/S1 level, there is mild posterior disc bulging with no evidence of central canal or foraminal compromise. Facet joints appear mildly degenerative.
Conclusion: Mild central canal stenosis of L4/5 level secondary to posterior disc bulging with right and left foraminal annulus tear. No visualised nerve root compression.”[26]
[26] Insurer’s documents p 180.
X-ray thoracic and lumbar spine, 24 October 2019 – the report reads:
“X-ray thoracic spine
There is a mild thoracic scoliosis convex to the right centred at T8 with an angle of 10 degrees. Vertebral body height is preserved throughout. Mild to moderate loss of disc height is present in the mid thoracic spine and small osteophytes are present. There are no bony lesions.
Comment: Mild degenerative change with a mild scoliosis.
X-ray lumbar spine
There is a mild lumbar scoliosis convex to the left centred at L3 with an angle of 6 degrees. Vertebral body height is preserved throughout. Mild loss of disc height is present at L4/5. Small osteophytes are present. There are no bony lesions.
Comment: Mild degenerative change with a minor scoliosis.” [27]
[27] Claimant’s documents p 212.
MRI lumbar spine, 21 February 2020 – the report reads:
“Alignment is normal. No evidence of fracture, no evidence of dislocation.
No evidence of spondylolisthesis or spondylolysis.
There is mild dehydration of the intervertebral discs.
Conus situated normally and shows normal signal.
The spinal canal is normal in calibre.
At L1/2 level, the disc is normal.
At L2/3 level, the mild broad based disc bulge with left lateral protrusion abutting the exiting left L2 nerve; there is minor facet joint hypertrophy.
At L3/4 level, moderate broad based disc bulge without evidence of focal disc herniation or nerve compression. Mild facet hypertrophy is noted. The disc bulge however is abutting the exiting right L3 nerve at the origin of the right exit foramen.
At L4/5 level, moderate large broad-based disc bulge compressing the thecal sac. The disc has a right lateral protrusion which is abutting the right L4 nerve root.
At L5/S1 level, broad based disc bulge with a subtle right lateral protrusion abutting the exiting right L5 nerve without nerve compression.”[28]
[28] Claimant’s documents p 202.
X-ray cervical spine, 15 April 2020 – the report reads:
“No fracture is seen. There is loss of the normal cervical lordosis. Disc space narrowing is present particularly at C5/6. There is foraminal stenosis. There is no bony lesion.”[29]
[29] Claimant’s documents p 103.
MRI cervical spine, 23 April 2020 - the report reads:
“Loss of the cervical lordosis with reversal of the lordosis in the mid and lower cervical region.
Spondylytic changes present with dehydration of the disc and associated osteophytes are noted on the sagittal sequences.
The cord is in the midline with homogenous signal.
There is no abnormality at the craniocervical junction.
Note is made of some enlargement of the adenoids with central cystic changes are ? Underlying inflammation.
At C2-3 level, a broad-based osteophyte present without nerve compression.
At C3-4 level, a broad-based osteophyte compressing the thecal sac. There is mild foraminal stenosis bilaterally with possible irritation to the exiting left C4 nerve.
At C4-5 level, a broad-based osteophyte compressing the thecal sac. There is bilateral mild foraminal stenosis with possible irritation to the exiting right C5 nerve.
At C5-6 level, a large broad-based osteophyte significantly compressing the thecal sac and slightly compressing the cord on the right side Bilateral severe foraminal stenosis with most likely compromise to the existing C6 nerves.
At C6-7 level, a right paramedian osteophyte compressing the thecal sac. There is no definite foraminal stenosis. There is no definite nerve compression.
At C7-T1 level, the disc is normal without nerve compression. The cord shows homogenous signal.
Conclusion:
Moderately advanced spondylitic changes. Broad-based osteophytes compressing the thecal sac. Bilateral foraminal stenosis at C4-5 level.
At C5-6, bilateral foraminal stenosis and most likely compromise to the C6 nerves. Prominent right paramedian osteophyte compressing the thecal sac and the cord at C6-7 level.”[30]
[30] Claimant’s documents p 242.
MRI lumbar spine, 14 September 2020 – the report reads:
“Findings: Grade 1 retrolisthesis is seen of L4 over L5 vertebra. Vertebrae maintain normal corpus heights and alignment. Mild facet joint arthropathy is seen at L4/5. The posterior elements appear normal. Disc desiccation is seen at multiple levels.
At the L4/5 level, there is a diffuse disc bulge causing ventral thecal sac indentation and left foraminal compromise. Left foraminal annular fissuring is also seen. No resultant impingement of exiting nerve root is seen. Hypertrophy of the epidural fat this at this level results in narrowing of the thecal sac and crowding of the nerve roots.
Elsewhere, central spinal canal and neural foramina appear patent. Lower spinal cord appears normal. The prevertebral and paraspinal soft tissues appear normal.
Impression:
Mild multilevel degenerative change, particularly at L4/5 level where there is soft tissue central spinal canal narrowing secondary to diffuse disc bulge, hypertrophy of facets and epidural fat. No foraminal narrowing nerve root impingement is seen at any level however.”[31]
[31] Insurer’s documents p 176.
MRI arthrogram right shoulder, 22 September 2020 – the report concludes:
“Subacromial bursitis. Intact cuff. Small SLAP lesion.”[32]
Medico-legal evidence
[32] Claimant’s documents p 244.
Dr Uthum K Dias, occupational physician
Dr Dias provided a report dated 8 November 2017. He reported Ms Mansour continued to struggle with the ongoing symptoms of pain, stiffness and discomfort affecting her neck, lower back and right shoulder. He diagnosed the following injuries as stemming from the 2016 accident:
· chronic right-sided cervical spine pain, with associated recurrent migraine headaches, and associated non-verifiable right upper limb radicular symptomatology, secondary to an acute musculoligamentous strain;
· a chronic right shoulder impingement syndrome secondary to an acute rotator cuff tendon strain;
· chronic non-specific lumbar spine pain with associated non-verifiable right lower limb radicular symptomatology, second to an acute musculoligamentous strain, and
· an acute soft tissue injury to the left shoulder which had resolved.
Professor Ian Cameron, rehabilitation specialist
Ms Mansour was assessed by Professor Ian Cameron at the request of the insurer in respect of the 2016 accident. He provided a report dated 23 June 2018 in which he diagnosed soft tissue injuries to the cervical spine, the lumbar spine and the right shoulder.[33] He assessed DRE cervicothoracic category 1 resulting in 0% WPI for the cervical spine, DRE lumbosacral category 1 resulting in 0% WPI for the lumbar spine and 2% WPI for the right shoulder.
[33] Claimant’s documents p 302.
Dr Peter Conrad, general surgeon
Dr Conrad assessed the claimant by video consultation and provided a report dated
5 August 2022.[34] He reported Ms Mansour injured her neck, both shoulders and her back in the 2016 accident. However, he reported a significant improvement in symptoms until she experienced a deterioration following the accident. Dr Conrad conceded he could not assess paravertebral muscle spasm or neurological signs due to the lack of physical examination.[34] Claimant’s documents p 39.
Dr Conrad concluded the claimant significant aggravated pre-existing injuries to her cervical spine, lumbar spine and right shoulder. He reported the MRI of the cervical spine and lumbar spine showed evidence of discal damage compressing the spinal cord, whilst the right shoulder arthrogram showed significant bursitis and a SLAP lesion.
Dr Conrad assessed a DRE category II neck impairment giving a 5% WPI, a DRE category II lumbar back impairment giving a 5% WPI and a 7% WPI of the right shoulder. He deducted 1/10 for the pre-existing condition arriving at a 14% WPI caused by the accident.
Associate Professor Michael Shatwell, orthopaedic surgeon
A/Prof Shatwell assessed the claimant for the insurer and provided a report dated
18 January 2023.[35][35] Insurer’s documents p 9.
He reported ongoing low back and neck pain. Ms Mansour also described some heaviness in the right arm and difficulty using the arm above shoulder level.
A/Prof Shatwell found the labral abnormality is unlikely to have been caused by the accident noting labral abnormalities are common in middle aged patients.
He concluded the chronic degenerative change in the lower three lumbar discs was a possible cause for the claimant’s pain including intermittent exacerbations of pain over the years since the 2016 accident. He stated in neither of the two accident was there any definite neurological disturbance although he noted A/Prof Papantoniou felt the right L5 nerve root had MRI signs of compression or irritation. He reported there was no sensory disturbance nor were there any sciatic nerve root stretch signs. There was no muscular wasting or weakness of the right lower limb.
A/Prof Shatwell opined that the soft tissue injuries to the cervical and lumbar spine would have settled within a few weeks or three months at most. He diagnosed chronic lumbar spondylosis and concluded the persistent symptoms on the lumbar region with radiation to the right and left thighs were probably due to degenerative changes particularly in the lower lumbar region.
A/Prof Shatwell commented that from the serial MRI scans performed between
10 February 2017 and 14 September 2020 there has been no significant progression of the degenerative change at L4/5 level.
Dr Christopher Canaris, psychiatrist
In a report dated 24 January 2023 Dr Canaris diagnosed post-traumatic stress disorder which he found was an aggravation of a pre-existing condition.[36] He also considered that her ongoing physical complaints following what he described as a minor physical injury may equate to a diagnosis of somatic symptom disorder with predominant pain.
SUBMISSIONS
[36] Claimant’s documents p 232.
Claimant’s submissions
The claimant provided undated submissions in support of the review application.[37]
[37] Claimant’s documents p 1.
The claimant submits that Medical Assessor Woo erred in determining causation of the injury to the neck and the impact of any pre-existing condition. The claimant notes that Medical Assessor Woo concluded that symptoms and signs of the claimant’s injuries were similar to those reported by Professor Ian Cameron in 2018 without reference to clinical notes and the lack of complaint after the 2016 accident.
The claimant submits that cl 6.31 of the Guidelines states:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
The claimant refers to the report of A/Prof Peter Papantoniou dated 24 May 2017 and notes he was tasked to examine the lumbar spine. It is noted medical imaging was not ordered for the cervical spine and A/Prof Papantoniou was examining the lumbar spine, although it is conceded there is one reference to the neck.
It is noted the clinical notes of Our Medical Home Marsden Park from 13 August 2018 do not report neck pain until 14 August 2020.
The claimant submits there is no objective evidence to suggest a pre-existing injury to the cervical spine at the time of the accident.
The claimant further notes that Medical Assessor Woo misread the report of Professor Cameron who, in fact, found the cervical spine was DRE cervicothoracic category 1 or 0% WPI.
Insurer’s submissions
The insurer provided submissions dated 18 March 2024 in response to the application for review.[38]
[38] Insurer’s documents p 1.
The insurer notes that Dr Eric Lim diagnosed cervical spine radiculopathy on
7 February 2020, just two months prior to the accident. In the months prior to the accident
Dr Emil Guirguis documented ongoing issues with the neck. Further Professor Cameron obtained a history of neck pain preceding the accident and on 8 November 2017 Dr Dias diagnosed chronic right sided cervical spine pain and associated non-verifiable upper limb radicular symptomatology and assessed a 5% WPI.The insurer submits the claimant misconstrued the reference by Medical Assessor Woo to A/Prof Papantoniou’s report. It is submitted the Professor’s report also identified the development of neck pain from the prior accident and noted that all documented pain was said to be progressively worsening at the time of the examination of the claimant.
The insurer notes that Professor Cameron found 0% WPI when he assessed the cervical spine impairment. On examination in 2018 he observed moderately and symmetrically reduced range of motion (to 70%) without muscle spasm or guarding and there were no radicular symptoms. Medical Assessor Woo also observed moderate and symmetrically reduced range of motion (to 70% normal) without muscle spasm or radicular symptoms.
The insurer submits that in ascertaining whether there was a pre-existing impairment an assessor is merely obliged to ascertain whether there was acceptable pre-accident evidence of clinical findings that would yield WPI and whether there was a formal pre-accident finding of WPI is irrelevant. The insurer submits the primary conclusion is that the DRE criteria findings were the same before and after the accident.
The insurer provided reply submissions dated 17 April 2023.[39] It is noted that causation is at the forefront of the dispute where the claimant suffered from pre-existing symptoms at the lower back and neck.
[39] Insurer’s documents p 5.
In respect of the cervical spine the insurer submits:
· X-ray imaging the day after the accident did not identify signs of trauma;
· further imaging following the accident drew conclusions of degenerative change and disc narrowing at C4/5 and C5/6;
· the radiological imaging confirms age related degenerative change;
· the assessment with Dr Conrad should carry little weight where the examination took place via zoom and where his findings were inconsistent with the remainder of the medical evidence;
· five months prior to the assessment by Dr Conrad the claimant was assessed by Medical Assessor Moloney. Whilst the claimant reported intermittent neck pain radiating into the right trapezius muscles, range of movement was reduced in a symmetrical manner with no dysmetria. There was no guarding or spasm and no signs of non-verifiable radicular complaints;
· when assessed by A/Prof Shatwell the claimant demonstrated a range of neck movement approximately 75% of normal and there was no complaint of pain radiating into the upper limbs and no muscle spasm, and
· Medical Assessor Moloney and A/Prof Shatwell both concluded the cervical spine injury was soft tissue in nature and would have resolved within three to six months.
In respect of the lumbar spine the insurer submits:
· at the time of the accident the claimant was still suffering from the effects of the 2016 accident;
· pre-accident imaging on 10 February 2017 revealed degenerative changes, particularly at L4/5, together with disc bulging at that level and compression of the L4 nerve root. An MRI of 19 June 2018 showed mild central canal stenosis at L4/5 level secondary to posterior disc bulging with right and left foraminal annular tears;
· three months prior to the accident an MRI scan of the lumbar spine demonstrated degenerative changes with a broad based disc bulging posteriorly at L3/4, L4/5 and L5/S1 levels;
· findings in the post-accident imaging did not stray too far from the identified pre-existing degenerative and age-related change;
· the disc bulging arises from the natural progression of degenerative changes; this is consistent with the opinion of A/Prof Shatwell;
· Medical Assessor Moloney observed a reduction of range of movement bilaterally, with no asymmetry. No found no significant changes on imaging post-accident;
· Dr Conrad was limited in his assessment, and he failed to adequately consider the claimant’s pre-accident condition, and
· evidence indicated that any persistent symptoms in the lumbar region are due to degenerative changes and not the accident.
In respect of the right shoulder the insurer submits:
· there is no mention of any shoulder or upper limb injury in the application for personal injury benefits;
· Medical assessor Moloney found no muscle wasting or crepitus and he identified inconsistencies when testing range of movement. He diagnosed a soft tissue injury that would have resolved within six months;
· whilst an MRI of 22 September 2020 revealed subacromial bursitis as well as a SLAP lesion the insurer notes the Dr Guirguis did not document right shoulder symptoms, there has been limited treatment of the right shoulder and A/Prof Shatwell concluded superior labral lesions are not usually associated with motor accidents and are commonly seen in imaging of people of the claimant’s age group, and
· the MRI of the right shoulder was five months post-accident and there is no evidence to support the delayed onset of symptoms and its recent deterioration is due to the accident.
MEDICAL EXAMINATION
Ms Mansour attended the medical examination with Medical Assessor Gibson on
6 September 2024. She was accompanied by her sister who remained in the waiting room. An interpreter Elias Zakharia CPN IRP72A was available to assist the claimant. She brought no imaging studies to the assessment.
Personal and family history
Ms Mansour currently lives with her 38-year-old daughter, her daughter’s husband and 10-year-old son and 14-year-old daughter in a two-bedroom, one-bathroom unit. She has been living there since late May 2024. Ms Mansour said she helps with the cleaning and does some of the cooking. She said she helps out with the children. She doesn’t undertake any regular exercise. She shops at times.
Ms Mansour owns and drives an automatic car. She generally only drives locally. She finds her right shoulder is uncomfortable at times when driving, as there is pressure from the seat belt.
She explained that she used to live with a friend, but when the lease ended she moved in with her son for 18 months, but then had to leave due to tension with her son's wife.
Ms Mansour was then in temporary accommodation through the Housing Commission before moving in with her daughter, on a temporary basis, until the Housing Commission can organise another independent residence.
Past work history
Ms Mansour was born in Baghdad, Iraq and left school at age 15. Her family moved to Turkey where she lived until arriving in Australia with her husband in 1989.
Ms Mansour initially assisted her husband with his cleaning business. He died in 2008 following a motor vehicle accident.
Ms Mansour completed a Diploma of Hair and Makeup in 2019. She did some part time work up until 2020.
Past medical history
Ms Mansour had a motor vehicle accident on 5 August 2016, when her car was hit from behind. Police attended and her car was towed. She did not require hospitalisation. She visited her GP the following day.
Ms Mansour subsequently attended physiotherapy treatment. She took Panadeine Forte, and Lyrica and applied a Norspan patch. She was referred to A/Prof Papantoniou who organised an L4/5 epidural steroid. She said this provided only short-term relief.
Ms Mansour had gastric banding in November 2020 and managed to lose 50kg.
There was no other relevant medical or surgical history.
Ms Mansour said prior to the accident, she was "still having a lot of problems", but her pain levels had plateaued. She said following the accident everything had flared, and she was having difficulty sleeping due to the pain.
On specific questioning, prior to the accident, Ms Mansour described intermittent neck pain. There were right shoulder symptoms, which she localised to the right deltoid region. She could reach up to some shelves at home, but she didn’t have full range of right shoulder movements. There were no additional upper limb symptoms. There was mild low back discomfort, but no lower limb symptoms. She was utilising pain relief when required including Lyrica and paracetamol tablets.
History of the accident
Ms Mansour had been driving on 14 April 2020. She estimated she was travelling at about 20kmph, when another car had "popped out" from a side street, she estimates travelling at about 60kmph. This vehicle hit the driver’s side of her car, which then spun onto the other side of the road with the passenger side impacting a tree.
Ms Mansour felt dazed and shocked after the accident. She denied having lost consciousness. She added she had experienced flashbacks about her husband’s accident in 2008 as this was a very similar accident. She confirmed she hadn’t been in the vehicle at the time of the 2008 accident.
Bystanders arrived and helped Ms Mansour out of the car. No police and no ambulance arrived. The driver at fault took her inside his nearby shop. Her son was called and collected her from the scene. Her car was towed and written off.
She said that evening she felt aching over her entire body.
She visited her GP the following day. He referred her for imaging and for some physiotherapy treatment. She was prescribed Endone and took this for several weeks, but she found it was making her feel unsteady, so this was ceased and Panadeine Forte commenced.
She was offered a referral for a corticosteroid injection, but she declined.
Ms Mansour has been under the care of GPs Dr Emil Guirguis and Dr Soliman. She was referred to Dr Medhat Guirgis and is to see him again in September.
Current treatment
Ms Mansour takes one Panadeine Forte at night and six paracetamol tablets during the day. There was no other medication.
She is having fortnightly physiotherapy treatment as part of a Managed Care Plan from her GP. She has had five sessions this year and a similar amount each year since the accident. Initially treatment had been reimbursed by the insurer.
Ms Mansour visits a psychologist, Mr Medhat Metry and her next visit is in October.
There was no other treatment, and no additional treatment planned.
Current complaints
Ms Mansour said there is neck pain "sometimes", and she indicated the right-side of her neck and extending to the right trapezius region. She notices the pain particularly with certain movements, such as when cutting her hair or after sleeping on the right side. The pain averages 4-5/10 with flares to 8/10 and is sometimes accompanied by nausea.
Ms Mansour described intermittent right shoulder discomfort which is felt over the outer aspect of her right arm and tends to come on if she attempts to carry a larger bag or a big box. She said she can carry 2 to 3l of milk without issue. She said at times there is clicking noise from the shoulder and that this has only been an issue since the accident. She said at other times she can’t move the arm at all, and it feels weak and "paralysed". The shoulder pain averages 3/10 severity. On specific questioning there were no other upper limb symptoms.
Ms Mansour described low back pain, felt over the upper lumbar spine in the midline and spreading across the back, more so to the right. Pain intensity varied from 6-7/10, up to 10/10. On specific questioning there were no lower limb complaints.
PHYSICAL EXAMINATION
Ms Mansour weighed 72kg.
She had normal spontaneous neck movements when conversing with the interpreter.
On examination of the neck, there was tenderness in the midline, from the mid cervical spine to the lower cervical spine, tenderness over the right side of the neck in the right trapezius region. Flexion and extension were to two-thirds normal, lateral flexion two-thirds normal, rotation two-thirds normal. There was mild guarding over the right side of the neck and trapezius.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, the upper arms measuring 31cm and right forearm 26cm with the left forearm measuring 25cm.
Upper limb reflexes, sensation and power were bilaterally normal.
On examination of the shoulders, there was a click with movements of the right shoulder, but no instability. Shoulder movements were variable, which Ms Mansour attributed to pain.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110° 120° 140°
140°, 140°, 160°
Extension
50° 60°60°
60°,60, 60°
Internal Rotation
40°,30°, 40°
80°,80°,80°
External Rotation
60°,60°,60°
70°,80°,80°
Abduction
100°,110° 130°
170°,170°,170°,
Adduction
40°,30°, 30°
40°,50°,40°
On examination of the lower back, Ms Mansour was tender over the upper lumbar spine in the midline extending to the right paravertebral region. Flexion and extension were to half normal, lateral flexion was to half-normal bilaterally, and rotation was to normal range bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equal 43cm at the thighs and 35cm at the calf. Reflexes, power and sensation were bilaterally normal. Straight leg raise was to 45 degrees bilaterally. Neurotension signs were negative 45° bilaterally.
DIAGNOSIS AND CAUSATION
Firstly, in considering the test for causation in accordance with Part 6 of the Guidelines the Panel is satisfied that the accident which involved a collision with the driver’s side of the claimant’s car before it collided with a tree could have caused or contributed to a worsening of the various impairments alleged by the claimant.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70 – 72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71.The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72.Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[2] Briggs [2022] NSWSC 372.
Cervical spine
The insurer disputes causation of injury to the cervical spine where the claimant suffered from pre-existing symptoms of the neck.
In his report dated 8 November 2017 Dr Dias reported chronic right sided cervical spine pain, on 23 June 2018 Professor Cameron diagnosed a soft tissue injury to the cervical spine and on 3 August 2018 physiotherapist Aaron Poon reported the claimant still had pain in her neck and low back.
However, there was no reported complaint of symptoms relating to the cervical spine in the records of Our Medical Home Marsden Park on 13 August 2018, 22 October 2018,
20 November 2018, 9 January 2019 and 9 April 2019. The Panel also notes that the claimant’s consultations with Dr Guirguis on 21 October 2019, 2 January 2020, and on
11 February 2020 were in relation to the lumbar spine only. No complaints were recorded referrable to the cervical spine.The Panel notes there was apparently no imaging of the claimant’s cervical spine before the accident on 14 April 2020.
Noting the relevant legal test as to causation does not require scientific certainty the Panel is satisfied the accident did cause the claimant to sustain injury to the cervical spine caused by the accident:
· where there was no recorded complaint of symptoms pertaining to the cervical spine in the period between 3 August 2018 and the accident on 14 April 2020;
· where following the accident on 14 April 2020 Dr Soliman reported the right sided neck pain was worse, the claimant’s movements were stiff, and she was concerned about her pain;
· where the claimant referenced an injury to her neck in the Application for personal injury benefits dated 7 May 2020;
· where the claimant underwent an X-ray the day after the accident, and
· having regard to her post-accident history of complaint.
The Panel acknowledges that X-ray imaging the day after the accident did not identify signs of trauma and further imaging confirmed age related degenerative change.
The Panel finds the claimant sustained a soft tissue injury to the cervical spine having regard to the findings of Medical Assessor Gibson, and where both Medical Assessor Moloney and A/Prof Shatwell diagnosed soft tissue injury to the lumbar spine caused by the accident.
However, the Panel does not agree the soft tissue injury has resolved. On examination Medical Assessor Gibson found tenderness, restriction of movement and mild guarding over the right side of the neck and trapezius. The Panel finds the claimant continues to suffer from the effects of the soft tissue injury sustained to the cervical spine.
Lumbar spine
The insurer disputes causation of injury to the lumbar spine having regard to the claimant’s pre-accident symptomatology.
The Panel notes the claimant saw Dr Guirguis in relation to the lumbar spine on
21 October 2019, 2 January 2020 and on 11 February 2020. She underwent an MRI of the lumbar spine on 21 February 2020, some eight weeks before the accident which demonstrated degenerative changes with broad based disc bulging posteriorly at L3/4, L4/5 and L5/S1 levels.The Panel accepts the claimant continued to suffer from the effects of the 2016 accident at the time of this accident.
However, the Panel notes not only did the claimant reference back pain in the Application for personal injury benefits Dr Guirguis on 20 April 2020 noted complaints of back pain, decreased movement in all areas, localised tenderness and reduced straight leg raising although with no neurological deficit. Mr Li, physiotherapist reported the symptoms suffered by Ms Mansour in the 2016 accident were severely aggravated by the accident. This was consistent with the history Medical Assessor Gibson obtained from Ms Mansour at the time of the examination where she reported following the accident a flare of her symptoms which led to difficulty with sleeping and the use of narcotics.
Where the relevant legal test as to causation does not require scientific certainty the Panel is satisfied the accident did cause the claimant to sustain a soft tissue aggravation of the pre-existing degenerative condition in her lumbar spine.
Right shoulder
The insurer disputes causation of injury to the right shoulder having regard to the lack of early contemporaneous complaint and where there was no mention of any shoulder or upper limb injury in the Application for personal injury benefits.
The Panel notes Ms Mansour sustained injury to the right shoulder in the 2016 accident, noting Dr Lim reported complaints pertaining to the right shoulder on 5 August 2017 and on
1 December 2017. Thereafter, there are no complaints of right shoulder pain.On 8 November 2017 Dr Dias reported symptoms affecting the right shoulder and diagnosed a chronic right shoulder impingement syndrome secondary to an acute rotator cuff tendon strain. Prof Cameron diagnosed a soft tissue injury to the right shoulder in his report dated 23 June 2018.
However, the Panel notes there was no reported complaint relating to the right shoulder in the clinical records of Our Medical Home Marsden Park on 13 August 2018,
22 October 2018, 20 November 2018, 9 January 2019 and 9 April 2019.Dr Shatwell had suggested that the labral abnormality noted on the MRI arthrogram of the right shoulder was not the cause of the right upper limb symptoms, that superior labral lesions are not usually associated with motor vehicle accidents and that labral lesions are very common in MRI scans of the shoulder particularly in Ms Mansour’s age group. He had also noted that the late investigation and limited treatment of the right shoulder symptoms suggested symptoms were of a minor nature and unlikely to be due to pathology in the shoulder. The Panel does not agree.
The accident occurred on 14 April 2020. The Panel notes that Dr Soliman reported right sided neck pain on 14 April 2020 although the first specific mention of right shoulder pain was not until 11 May 2020 when Dr Guirguis recorded right shoulder pain, loss of range of movement in all directions and tenderness over the acromioclavicular joint.
The Panel does not consider this delay in diagnosis to be significant. Noting Ms Mansour reported right sided neck pain on 14 April 2020 the Panel is of the view the right sided neck pain reported by Ms Mansour masked the shoulder injury. It was identified by Dr Guirguis on 11 May 2020 and led him to refer the claimant for the MRI Arthrogram which disclosed the presence of bursitis and the SLAP tear.
The Panel considers the tenderness over the acromioclavicular joint observed by Dr Guirguis on 11 May 2020 was consistent with the presence of a SLAP tear.
Where there was no complaint of shoulder pain from 23 June 2018 until after the accident, and noting legal causation does not require scientific certainty the Panel, on the balance of probabilities finds the injury sustained by the claimant to the right shoulder, namely bursitis and a SLAP lesion was caused by the accident.
PERMANENT IMPAIRMENT
Cervical (cervicothoracic) spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were clinical findings (guarding) as detailed in Table 6.7 of the Guidelines. Thus, in reference to the Guidelines the cervical spine injury would be assessed at DRE Impairment Category II, thus 5% WPI.
Clause 6.31 of the Guidelines provides if there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident then its value should be calculated and subtracted from the current WPI value. Whilst the Panel notes the claimant had a pre-accident history of injury to the cervical spine there is no record of complaint from 3 August 2018 until the accident.
Therefore, the Panel finds there is no objective evidence of a pre-existing symptomatic permanent impairment at the time of the accident, in particular no clinical records that would support an impairment rating in excess of 0% WPI. Therefore, in accordance with the Guidelines its possible presence should be ignored. Accordingly, the Panel does not propose to make any deduction for a pre-existing impairment.
Lumbar (lumbosacral) spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7 of the Guidelines. There was no radiculopathy. Thus, in reference to the Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.
Shoulders
The Panel has diagnosed a right shoulder injury namely bursitis and a SLAP lesion caused by the accident.
On examination Medical Assessor Gibson identified inconsistency in range of movement of the right shoulder. The Panel notes her findings were inconsistent with the earlier findings of Medical Assessor Woo. Medical Assessor Moloney also identified variability in range of shoulder movements when he assessed threshold injury.
Clause 6.50 of the Guidelines states:
“(d)if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation; and
(e)if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Consequently, these inconsistencies have led the Panel to conclude that range of motion was not a reliable and valid method for evaluating the claimant’s level of impairment in accordance with cls 6.50(d) and 6.50(e) of the Guidelines. Accordingly, the Panel proposes to assess the impairment by analogy in accordance with cl 6.24 of the Guidelines keeping in mind cl 6.40 of the Guidelines which advises the assessor to use clinical judgement in determining an appropriate impairment rating.
The Panel considers the best analogy would be by reference to shoulder crepitus in the acromioclavicular joint. The claimant has moderate impairment due to joint crepitation which under Table 19 on page 3/59 of the AMA 4 Guides equates to a 20% joint impairment. Multiplying the joint impairment from the joint crepitation in accordance with Table 18 on page 3/58 of the AMA 4 Guides this converts to a 3% WPI.
In assessing whether there was evidence of a pre-existing symptomatic impairment in the same region at the time of the accident in accordance with cl 6.31 of the Guidelines the Panel notes there is no documented evidence of complaint relating to the right shoulder from 23 June 2018 until the accident.
Therefore, the Panel finds there is no objective evidence of a pre-existing symptomatic permanent impairment at the time of the accident and in accordance with the Guidelines its possible presence should be ignored. Accordingly, the Panel does not propose to make any deduction for a pre-existing impairment.
The Panel finds a total 8% WPI caused by the accident.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Alexander Woo dated 5 February 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI of 8% which is not greater than 10%:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue aggravation of the pre-existing degenerative condition, and
· right shoulder – bursitis and SLAP lesion.
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