McGrath v AAI Limited t/as AAMI
[2023] NSWPICMP 361
•27 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | McGrath v AAI Limited t/as AAMI [2023] NSWPICMP 361 |
| CLAIMANT: | Sean McGrath |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Rhys Gray |
MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 27 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Preston and claimant’s review under section 63; claimant alleged injuries to neck, lower back, right knee and both shoulders; WPI assessed at 0%; application for review made on basis no record of examination findings supporting dysmetria in lumbar spine (detailed examination findings recorded for cervical spine); previous assessment by MA Berry in 2019 resulted in finding of 9% WPI; no allegation of shoulder injury at that time; causation in issue; previous complaints and three and a half month delay between date of accident and first attendance on GP; Held – claimant inconsistent and memory of events not good; claimant’s evidence unreliable; Panel satisfied claimant sustained soft tissue injuries to the neck, lower back, right shoulder not left, and right knee not left; impairment assessment; neck and back Diagnosis Related Estimate (DRE) I (0%); right shoulder impairment not caused by accident (0% WPI) and right knee (2%); Certificate revoked as MA had included figure of 0% in her Certificate. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Preston dated 21 September 2022. 2. Certifies that the degree of Mr McGrath’s permanent impairment resulting from the injuries caused by the motor accident on 17 October 2016 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Sean McGrath was involved in a motor accident on 17 October 2016. His car was hit from behind after he changed lanes on a major roadway.
Mr McGrath says he injured his neck, back, shoulders and right knee in the accident. He made a claim for damages against AAMI, the third-party insurer of the vehicle that
Mr McGrath says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr McGrath referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 21 September 2022, Medical Assessor Preston determined the claimant did not have a WPI of greater than 10%. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 1 December 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on
6 February 2023 the President has convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Mr McGrath’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act and they are limited and restricted. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[2] Section 133 of the MAC Act. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, chapter 3 of the AMA4 Guides, the musculoskeletal system, is relevant.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for assessment.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for the medical assessment of medical disputes by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Berry’s, further medical assessments such as Medical Assessor Preston’s and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Preston examined the claimant on 13 September 2022 and issued her certificate on 21 September 2022.
Medical Assessor Preston was asked to assess the following injuries and impairments:
(a) left and right arm restriction in movement;
(b) right knee – patellofemoral crepitus, ulceration in medial trochlear, subchondral oedema;
(c) lumbar spine – musculoligamentous sprain and strain and aggravation of underlying degenerative disease, and
(d) cervical spine – musculoligamentous sprain and strain and aggravation of underlying degenerative disease.
Medical Assessor Preston took the following history from the claimant:
(a) Mr McGrath was 48 years of age;
(b) he has worked as an electrical apprentice, security and process work, concreting and labouring;
(c) the claimant stopped work and has been the sole parent and carer for his three children since 2009;
(d) he had no previous, neck, back, knee or shoulder injuries;
(e) Mr McGrath described three impacts in the accident, his chest hit the steering wheel, his head hit the roof and both his knees hit the dashboard;
(f) he had no airbags;
(g) he got out of the car and noticed discomfort in his neck, base of skull and both shoulders and a seat belt injury;
(h) police and ambulance did not attend, details were exchanged, and Mr McGrath drove on to Parramatta and then home;
(i) the claimant said he saw his doctor a few days later and was prescribed analgesia and anti-inflammatory medication or Panadeine Forte;
(j) the claimant has self-medicated with cannabis and was prescribed Lyrica which he could not tolerate, and
(k) Mr McGrath had episodes of his knees giving way and had a right knee operation in 2018, he used the word “chondroplasty”. He has been advised to have surgery on his left knee, but this has not occurred.
Mr McGrath complained of daily neck pain with restricted neck and shoulder movements “in the rotator cuff”. The left shoulder is worse. He reported a constant “buzzing in both of his hands” and had a patch of sensation disturbance in the sole of his left foot.
Mr McGrath also complained of constant low back pain and lateral hip pain with shooting pain from the left buttock into the groin and from the right groin down to the knee cap. He reported constant sensory disturbance in both feet, intermittent swelling and discomfort in both his knees. His knees give way intermittently.
On examination of his cervical spine there was no abnormality, no guarding or spasm and while there was restriction, it was symmetrical on lateral flexion. Upper limb reflexes were normal. There was some muscle weakness with patchy sensory disturbance which did not follow a specific dermatomal distribution. The right arm was reduced in circumference compared to the left (and the claimant was right-handed).
The thoracic spine was reported to be normal on examination.
The lumbar spine was examined and there was no spasm or guarding. There was no weakness or loss of reflexes and some patchy sensory disturbance which did not follow a dermatomal distribution.
Shoulder movements were restricted with variability on repeat testing. There was no wasting in the shoulder girdle. Other upper limb movements were normal.
In the lower limbs, hip movements were normal and knee motion was full, there was no effusion and no definite crepitus.
Medical Assessor Preston found the right knee, lumbar spine and cervical spine were injuries caused by the accident, but she was not of the view any restriction in movement of the left or right arm due to shoulder injuries or conditions was caused by the accident.
She assessed 0% WPI on the basis that there were no radicular signs, guarding or spasm in either the neck or lower back and the right knee range of motion was normal.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions argue that Medical Assessor Preston did not report her findings on range of motion in the lumbar spine and therefore it is not known whether there was dysmetria or not.
The claimant draws attention to the comprehensive record of range of cervical spine movements by Medical Assessor Preston and the finding there of no dysmetria.
Insurer’s submissions
The insurer notes at [3] that the claimant only takes issue with the lumbar spine assessment and says:
(a) clause 1.125 of the Guidelines provides that dysmetria is not established if there is “symmetric loss of movement” [11];
(b) the claimant had no spasm or guarding which table 8 of the Guidelines says are key clinical findings of dysmetria [12];
(c) these findings suggest there was no need for the Medical Assessor to further assess whether there was dysmetria or not [13];
(d) the Medical Assessor was to examine the claimant as they present on the day [14];
(e) says the Medical Assessor recorded that the claimant has no dysmetria [15];
(f) the Medical Assessor has thoroughly examined the claimant and found no cause to assess DRE category II for the lumbar spine and has given her reasons [16 – 22] and there is no causes to suspect an error, and
(g) if there is an error the insurer says it is not material because if there was dysmetria the claimant would be assessed as DRE category II which equates to 5% which is not of course greater than 10% [23] – [29].
Procedural matters
The claimant was previously assessed by Medical Assessor Berry. He certified on
16 August 2019 that the claimant had a WPI of 9% in respect of injuries to the cervical and lumbar spine as well as both lower limbs.
The claimant applied for a further assessment and the parties provided submissions to the President on whether the delegate of the President should allow the further assessment under s 62 of the MAC Act. The claimant wrote to the Commission on 10 March 2022 clarifying that in addition to the left and right knee and his neck and lower back, the claimant wanted to have his left and right upper limbs assessed[5] on the basis “their omission on the application [for further assessment] form was an administrative error”.
[5] Page 21 of the claimant’s bundle.
The delegate of the President, Ms O’Carroll determined on 25 March 2022 that the application for further assessment should proceed on the basis that the claimant’s expert,
Dr Bodel had included left and right upper limb injuries at 6% and 2% in his assessment and that if similar findings were made by a Medical Assessor, this was likely to have a material effect on the outcome of the assessment.
Medical Assessor Preston was therefore asked to assess the claimant’s neck and lower back, his right and left upper limbs as well as Mr McGrath’s right knee.
After Medical Assessor Preston completed her assessment, the claimant lodged an application for review. In determining that application, the delegate of the President,
Ms O’Carroll said at [7] of her decision:
“The applicant’s ground for review that the Assessor did not comply with the requirements for an assessment of dysmetria, or non-uniform loss of spinal motion under the Permanent Impairment Guidelines in the assessment of the lumbar spine, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect.”
On 11 April 2023, the Panel met to discuss the way in which the review was to proceed. In the report to the parties, the Panel noted that Medical Assessor Preston assessed the following injuries and found 0% WPI for all of them:
(a) left and right arm restriction in movement;
(b) right knee – patellofemoral crepitus, ulceration in medial trochlear, subchondral oedema;
(c) lumbar spine – musculoligamentous sprain and strain and aggravation of underlying degenerative disease, and
(d) cervical spine – musculoligamentous sprain and strain and aggravation of underlying degenerative disease.
The Panel noted that the claimant challenged the Medical Assessor’s assessment of the lumbar spine injury only. The claimant was asked to confirm whether the claimant accepted that all other injuries attract a WPI of 0%. The Panel requested any final submission from the claimant by 28 April 2023 and from the insurer by 12 May 2023.
On 26 April 2023, the claimant filed submissions requesting that all injuries be reassessed.[6] On 12 May 2023 the insurer filed further submissions and additional documents.[7] The insurer restated its submissions and has placed causation of all of the claimant’s injuries in issue.
[6] Document AD3 in the Commission’s electronic file.
[7] Document AD4 in the Commission’s electronic file.
REVIEW OF THE EVIDENCE
On 8 February 2023, the Panel issued directions to the parties noting that there had been an original assessment, a further assessment and now the review proceedings. The Panel directed the parties to provide a bundle of documents each to ensure the Panel had a copy of all the relevant documents before it.
The claimant provided a bundle[8] comprising 288 pages and the insurer uploaded a bundle[9] of 232 pages.
[8] The claimant’s bundle is document AD1 in the Commission’s electronic file.
[9] The insurer’s bundle is document AD2 in the Commission’s electronic file.
Claim form and claim documents
The claim form was signed by the claimant on 4 April 2017 and declared as true and correct.[10]
[10] Page 232 of the insurer’s bundle.
Mr McGrath disclosed a previous workers compensation claim in 2001 in Queensland.
He said the car accident occurred on 17 October 2016 at 2.00pm. He was the seat-belted driver of his own car and had not consumed drugs, alcohol or medication in the 12 hours before the accident.
Mr McGrath says he merged from lane 3 to lane 2 on the Cumberland Highway. After completing this manoeuvre, the vehicle behind him collided with the rear of his vehicle.
Mr McGrath was driving a Landcruiser, and the insured driver was driving a Mazda hatchback.
The claimant says he injured his:
(a) neck and head;
(b) upper and lower back;
(c) right knee;
(d) left eye;
(e) left and right shoulder, and
(f) sustained a psychological injury – anxiety.
The claimant denied any other injuries or illnesses to the same or similar parts of his body but said he had a “minor lower back strain from work.” He identified his treating general practitioner (GP) as Dr Natale from Hoxton Park Road Medical Centre.
The medical certificate attached to the claim form was completed by Dr Natale on 2 February 2017. He notes the claimant has been a patient of the practice for “20 years plus” and said he first saw the claimant after the accident on 2 February 2017 and diagnosed “injuries neck, upper and lower back and right knee, shoulders, left eye and headaches”.
The pain diagram completed by Dr Natale is reproduced below. The Panel notes the shoulders are not shaded.
[IMAGE UNABLE TO RENDER]
Treating medical records and reports
In a letter to AAMI dated 18 May 2017,[11] Dr Natale noted at [1] that the claimant first presented to him on 2 February 2017 saying he was involved in an accident on 17 October 2016 when he was hit from behind by another car travelling at 70 kmph.
[11] Claimant’s bundle page 27.
Dr Natale recorded injuries to the right knee, neck, upper and lower back. The claimant said he had headaches and knee pain with difficulty walking, was having trouble sleeping and was feeling anxious.
On examination it was recorded at [2] that the claimant had a full range of movement of the neck, back and knee. There was crepitus on flexing and extending the right knee and he diagnosed soft tissue injuries with anxiety.
The claimant was seen again on 7 February and 30 March 2017 with “episodic lower back and right knee pain”.
Dr Natale noted a previous history of lower back pain and said he prescribed Mobic and Panadeine Forte. The claimant had been referred to Dr Dave but had not yet seen him.
Chronology of pre-accident records
The records from Dr Natale[12] document longstanding issues of anxiety and stress following Mr McGrath’s separation from his wife and raising his three children.
[12] Page 29 of the claimant’s bundle.
On 25 September 2014 there is a report of injury to the claimant’s right patella after a cupboard fell on his knee. He was tender in the knee but had a full range of motion and there was no swelling. He was referred for X-rays. The X-ray report of 4 November 2014 showed a small trace of joint effusion but no evidence of a fracture or loose body in the joint.
When seen on 13 November 2014, the claimant’s right knee pain was continuing, and he was given a referral to Dr Dave. The Panel notes there is no evidence in these records or
Dr Dave’s records of the claimant attending Dr Dave at this time.
On 18 January 2016, the claimant attended for “recurrent lower back pain in lumbar region”. The claimant was tender on palpation, had restricted back movements, but there was no abnormality in the legs and Mr McGrath was referred for a CT scan due to “possible lumbar disc disease”. There is no evidence of any CT scan of the lumbar spine from this time.
The claimant saw Dr Natale on five occasions in 2016 for matters unrelated to his neck, back, shoulders or knees. All five consultations occurred before the accident.
There were no attendances for any medical matter between 11 October 2016 and 2 February 2017. On that day, the claimant reported having been involved in a car accident on
17 October 2016. The history is of an impact from behind by another car at 70 kmph. The doctor records:
“Suffered injuries to the right knee, pain in the neck and thoracic spine region as well as the lower back. No LOC, no head injuries. Currently complaining of headaches, neck pain and lower back pain which are effecting his sleeping. Feeling anxious when driving. Did not drive for 6/52 [six weeks] due to fear of having another accident.
Difficulty walking due to left knee pain. Clicking of knee with flexion and extension. Pain in left eye no visual disturbances.”
The claimant was referred to I-Med radiology for MRI studies of the right knee and lower back.
The next entry (and the last in this set of records) is dated 30 March 2017. The claimant was said to continue with right knee and lower back pain. Episodes of knee pain were recorded with limping, no swelling and full range of motion and there is a comment “restricted back movement due to pain”. The claimant was referred for review by Dr Dave and a medical certificate was given.
A second set of Dr Natale’s records was provided[13] and these include entries on 12 May and 18 May 2017 for the purposes of a medical certificate – there is no mention of any treatment being provided and it may be that the claimant was not actually present on those dates. Also on 18 May 2017 is a record of the letter being written to AAMI.
[13] Page 199 of the claimant’s bundle.
On 30 June 2017, the claimant attended complaining of “neck, lower back and right knee pain” and he was getting pain on movement and walking. He was advised to have MRI scans and a review with Dr Dave and Endone was prescribed.
On 31 July 2017 the claimant attended again on Dr Natale complaining of a lot of pain in his right knee and he was limping at the time and requested Endone for his severe pain.
Dr Natale participated in a case conference with the insurer’s rehabilitation provider on
31 August 2017 about the claimant’s ongoing upper and lower back pain, leg pain and right knee pain and Mr McGrath reported experiencing instability and paraesthesia in his hands and feet. Dr Natale provided a referral to Professor Sheridan dated 31 August 2017[14] for “upper and lower back and lower limb pain and paraesthesia as well as painful right knee MRI scan reports are below”. These symptoms were said to have occurred since the car accident on 17 October 2016.
[14] Page 39 of the claimant’s bundle.
On 10 November 2017 Professor Sheridan wrote to Dr Natale.[15] The claimant has had “neck pain, back pain, bilateral arm and leg pain as well as pain in his knee”. Professor Sheridan states that Dr Dave was looking after the claimant’s knee but that otherwise, Mr McGrath has not had any particular treatment and is restricted in his day-to-day activities. He had not been able to return to his concreting work.
[15] Page 42 of the claimant’s bundle.
Professor Sheridan reported that the lumbar spine MRI was normal, and the cervical spine MRI showed some slight bulging of the discs but nothing that needed surgery. He recommended physiotherapy and rehabilitation and possibly a pain management course and made no further appointments.
When seen by Dr Natale on 31 January 2018, the claimant complained of knee pain and lower back pain and was advised “to consider [a] pain management specialist”. On
13 February 2018 Dr Natale noted incapacitating lower back and right knee pain with limping and an inability to perform home duties and unable to work. There is a similar entry on
22 February 2018.
There is a suggestion of a right ankle injury on 28 February 2018, but the note is very unclear.
On 2 March 2018, Dr Natale referred the claimant for further radiology namely an upright positional MRI of the lumbo-sacral spine.[16] Dr Natale reviewed the claimant with the radiology on 22 March 2018 referring to ongoing lower back and right knee pain.
[16] Page 50 of the claimant’s bundle.
Dr Day, physician and cardiologist wrote to Dr Natale on 27 June 2019[17] referring to the claimant reporting “neck and lower back pains with neuropathic leg pain since a motor vehicle accident in ?2014”. The claimant was complaining of chest discomfort with quite severe pain with “left shoulder pain which radiates into the left arm”. He found no evidence of ischaemic heart disease and interpreted the chest pain as musculoskeletal, and the arm pain as referred from the claimant’s neck.
[17] Page 127 of the insurer’s bundle.
A third bundle of notes from Dr Natale’s practice has been provided with the first attendance recorded on 4 November 2020[18] for “MVA injuries to the neck, back and right knee” and a prescription for Endone was provided. On 25 November 2020 the claimant attended for chronic neck, back and knee pains and he was referred to Dr Nazha a pain specialist.
[18] The notes are at page 229 of the claimant’s bundle.
The claimant attended on several occasions thereafter for matters of a personal nature which were said to have induced stress and anxiety.
On 22 April 2021 the claimant was seeking a total and permanent disability payment in relation to his neck, shoulders, back and knees and Dr Natale prescribed Endone to be taken at night.
Various certificates were provided on 3, 11 and 13 May 2021, but it is not clear whether the claimant attended. One of these would appear to be a letter from Dr Natale to the claimant’s solicitors dated 11 May 2021[19] which says:
“Mr McGrath has on occasion mentioned that he was having more pain in his back and legs, which tends to fluctuate. This was usually in the context of consultations for other reasons. There has been a great deal of upheaval in Mr McGrath’s life and no further investigations or follow up has occurred.
Mr McGrath has been managing by taking analgesic medication as required. Mr McGrath was referred to a pain speicalist Dr Alan Nazha for further mangagement as his neurosurgeon Dr Mark Sheridan did not feel he could do anything further.
Mr McGrath did not proceed with the referral due to social and financial stresses.”
[19] Page 194 of the claimant’s bundle.
There is a fourth set of notes from Dr Natale[20] commencing on 20 July 2021 when the claimant attended complaining of lower back pain. An MRI dated 23 July 2021 was reported to be a “normal study”[21].
[20] At page 213 of the claimant’s bundle.
[21] Page 217 of the claimant’s bundle.
On 23 September 2021 Mr McGrath was complaining of lower back and bilateral leg pain and a referral to neurologist Dr Griffith was provided[22]. On 8 October 2021 there is a reference to a total and permanent disability application having been completed. Nerve conduction studies were arranged on 18 October 2021, along with a review by Dr Sheridan. Dr Griffiths’ nerve conduction study[23] says “normal study, normal F wave responses with no electrical evidence of peripheral neuropathy or sciatic nerve root dysfunction”.
[22] The referral is at page 228 of the claimant’s bundle.
[23] Page 225 of the claimant’s bundle.
On 12 November 2021 the claimant complained of “neck pain on right side of neck and both shoulder pain with restricted abduction has paraesthesia in left arm” and an MRI was arranged. On 17 January, 27 April, 29 April and 29 July 2022 the claimant attended for lower back pain, knee and feet pain issues.
The insurer has provided[24] a letter from Dr Natale to the claimant’s solicitor dated 30 January 2023 which says:
“[the claimant] continues to experience right shoulder pain with restriction of movement and use of the shoulder. These symptoms commenced after the motor vehicle accident on the 17 October 2016 while having rehabilitation. Ultrasound of the shoulder on the 11 January 2023 shows tendinosis, bursitis and shoulder impingemnet. Mr McGrath continues with shoulder pain and a limited range of movement disipte having physiotherapy.”
[24] As part of AD4.
Radiology
Within Dr Natale’s records is an MRI of the claimant’s knee dated 30 June 2017[25] which reports a “focus of full thickness chondral ulceration in the medial trochlear with subchondral oedema. This has reasonably acute margins so could potentially be a recent injury”.
[25] Page 36 of the claimant’s bundle.
Also dated 30 June 2017 is an MRI of Mr McGrath’s cervical and lumbar spine which reports, “Minimal degenerative changes in the cervical and lumbar regions. No evidence of significant central canal stenosis or nerve root impingement at any level”.
On 2 March 2018 an MRI of the lumbo-sacral spine[26] was requested by Dr Natale for “chronic low back pain” with the result reported, “minor herniation L5/S1 slightly accentuated by standing” but “no nerve root contact seen” and “otherwise normal discs no annular tear or other pathologies at other levels”.
[26] Page 50 of the claimant’s bundle.
An MRI was requested by Dr Natale with the clinical history of “low back pain with paraesthesia both feet”. The MRI is dated 23 July 2021 and was reported to be a “normal study”[27] with nerve roots exiting freely.
[27] Page 217 of the claimant’s bundle.
Physiotherapy
Records from Sports Focus Physiotherapy have been provided[28] and these deal with treatment following the claimant’s right knee arthroscopic surgery. There were seven sessions and on 30 August 2018 the claimant was reported to be “able to walk 15 mins comfortably with minimal pain”.
[28] Page 245 of the claimant’s bundle.
Records from Prime Physiotherapy[29] including a letter to Dr Natale suggest physiotherapy commenced on 7 February 2023. The history given was of right shoulder pain from a seat belt injury in 2016 with ongoing issues. Only the right shoulder appears to have been treated. The letter notes that “Mr McGrath is very keen to return to gym exercises but as I have explained to him, he needs to progress his exercises steadily so as to not continue to strain his shoulder”.
[29] Page 240 of the insurer’s further submissions AD4 bundle.
In the records are the following measurements:
(a) 14 February 2023:
(i)right flexion 120, and
(ii)extension 90
(b) 23 February 2023 sore after weekend walking. Leg pain on and off, right shoulder pain. Right shoulder movements:
(i)flexion 160;
(ii)abduction 140, and
(iii)external rotation 45.
(c) 11 April 2023 – lumbar spine a bit better, thoracic and right shoulder pain:
(i)right and left shoulders - flexion left 160, right 160, and
(ii)still complains feels stiff – recommended to do exercises as instructed and stretches.
Dr Dave’s records have been produced. There is minimal correspondence between Dr Dave and the claimant’s GP and while there is a record that he has been paid by the claimant’s solicitor the sum of over $1,200 for a report, no report from Dr Dave is before the Panel.
Other records
The insurer has provided copies of the claimant’s Centrelink records[30] which suggests the claimant has been in receipt of a partial payment since the first half of 2010 but was in receipt of a full carer payment since 1 July 2011.
[30] Page 11 of the insurer’s bundle.
The records also suggest the claimant has received no income since the 2014 financial year when he earned the sum of $80.
A Centrelink job capacity assessment report dated 8 October 2010[31] refers to three medical conditions:
(a) ongoing dental problems that result in pain and infections. Exacerbations affect health and work attendance;
(b) bilateral repetitive strain injuries in both shoulders and torn left rotator cuff due to a work injury. Mr McGrath reports that this condition affects his ability to lift more than 20 kilos and lift his arms above the shoulders, and
(c) a fatty liver which causes back pain and loss of appetite.
[31] Page 17 of the insurer’s bundle.
Also reported are stresses associated with obtaining custody of his children and that he last worked as a cleaner and handy man.
The insurer has obtained records from the Busby First Care Medical Centre[32] which records:
(a) an attendance on 3 March 2012 with pain in his neck, muscle tightness on the right side of the neck, pain turning his head to the right, restricted rotation to the right and muscle spasm. He was prescribed Valium;
(b) on 17 April 2012 a further script for Valium was provided, and
(c) there are four further attendances for other issues none of which are relevant to the accident of 2016.
[32] Page 138 of the insurer’s bundle.
Records from Ross Haron of the AHH medical practice in Glen Innes have been provided.[33] They indicate that in 2007 the claimant was having issues with depression concerning the custody of his children. After he was awarded full custody, the claimant saw the practice for usual general medical matters.
[33] Page 145 of the claimant’s bundle.
On 25 October 2010 is this entry:
“Low energy, tired, poor appetite, poor sleep patterns – feels it may be related to his liver, also pain down right leg, right knee … exam [no abnormality detected” likely depressed – moving to Sydney to live with mother – has custody of children … legs ran over as a child - …for x-ray – long chat re psychological issues.”
Medico-legal reports - Claimant
Dr Maniam
Mr Maniam saw the claimant at the request of his solicitors on 20 February 2019.[34]
Dr Maniam took a history from the claimant of an injury to the cervical spine, lumbar spine and right knee.
[34] The report is dated 11 March 2019 and is found at page 51 of the claimant’s bundles.
Dr Maniam had a history of no previous medical issues although notes the claimant did have depression and anxiety before the accident.
Dr Maniam has a history of a single impact from the rear which “irreparably damaged his motor car”. Dr Maniam records the claimant was propelled upwards, forwards and backwards to his seat and there was the development of pain in the spine and the head.
The claimant said he drove on to Paramatta to pick up his partner and then to the school to pick up his children. He “self-managed his symptoms” before consulting his GP, Dr Natale.
The claimant was apparently working in his own business of carpet cleaning and pest control “but could not return to work”. He saw Dr Dave then Professor Sheridan.
The claimant said his current symptoms were neck pain with headaches “no radiation into the upper extremities”, lumbar pain with radiation into the right lower limb and right knee pain with restricted movement.
On examination there was moderate restriction in all three planes of cervical spine movement with asymmetry. He notes “shoulder movements were normal and in the upper limbs the neurological signs were intact”. The lumbar spine was also restricted although only one plane of movement showed asymmetrical loss of movement.
The right knee showed no signs of instability, crepitus but no restriction of movement.
Dr Maniam diagnoses musculo-ligamentous strains of the neck and lower back and an injury to the patella-femoral joint of the right knee. He assessed impairment at 12% in a separate report summarised in the appendix to these reasons.
Dr Sheehan
Dr Sheehan saw the claimant on 25 February 2020 at the request of his solicitors.[35] He has a history of the claimant working part time as a concreter immediately before the accident however Mr McGrath said he has been unable to work at all since the accident.
[35] Page 76 of the claimant’s bundle.
The claimant gave a history of being rear ended as he was changing lanes. The claimant said he hit his head on the roof and he sustained blows to both his knees on the dashboard as he hit his chest on the steering wheel.
The claimant said he drove away, and his vehicle was repaired. Mr McGrath explained to
Dr Sheehan who reports “within hours, this man … became increasingly concerned about his experience of neck, back and right knee pain as well as discomfort along the line of where his seatbelt had been applied”.
Dr Sheehan has a history that the claimant self-medicated for several months before going to see his GP. Dr Sheehan documents the claimant’s treatment thereafter.
The claimant reported constant lower back pain particularly on the left and constant neck pain and stiffness “inclined to involve both of his shoulders”. He also complained of a stiff right knee joint which was painful and limited in function.
The claimant denied previous compensation claims but said he had a previous episode of back pain in early 2016 however he had massage and took Panadol and completely recovered.
The claimant attended Dr Sheehan with a walking stick and limped when not using it. The right knee was normal but there was pain and slight crepitus was heard on flexion. The left knee joint was “completely normal”.
There was asymmetry of movement in both cervical and lumbar spine. The upper limbs were normal and “there were no other clinical signs of relevance”.
He diagnosed musculoligamentous strains and tears in the neck and lower back aggravating minor asymptomatic degenerative changes in the lumbar spine. He assessed WPI at 12% (DRE category II in the neck and lower back) and 2% for chondromalacia patellae in the right knee.
Dr Bodel
Dr James Bodel saw the claimant on 13 May 2021.[36] He has a history of the claimant being a self-employed concreter before the accident working full time hours with flexibility due to his care of his children.
[36] The report is at page 88 of the claimant’s bundle.
Dr Bodel has a history of the following injuries:
(a) headache;
(b) neck injury;
(c) visual disturbance and pain in the eyes;
(d) numbness and tingling in both hands involving all five digits of his hands;
(e) pain between the shoulders left worse than right;
(f) lower back pain;
(g) right hip and groin pain;
(h) right knee pain;
(i) left sided lower back pain, and
(j) numbness and tingling in both feet.
Dr Bodel has a history of the rear end collision occurring after the claimant merged lanes and 100m away from a red light. The claimant said he was thrown around quite violently and hit his head on the roof “three times” and felt chest wall pain, neck and shoulder girdle pain and lower back pain and hit his knees on the dashboard and his chest on the steering wheel.
He got out of the car, exchanged details and his vehicle was driveable and subsequently repaired.
Dr Bodel has a history of the claimant putting up with the pain for three to four days and then going to see his GP. He says he filled out the claim form at the time and was referred for a chest, neck, lower back and both knees X-rays.
The doctor takes a history of the claimant’s treatment, rest, analgesics, anti-inflammatories, physiotherapy and referral to Dr Dave. The claimant reported his knee pain did not improve after the arthroscopy and he takes Endone most nights.
The claimant did not attend with a walking stick and was not observed to limp.
When the neck was examined, there was no guarding, spasm or asymmetry of neck movements.
The claimant’s shoulder movements were restricted on the left more than the right with impingement signs in the right shoulder but not the left.
There was asymmetry in the lower leg measurements and no restriction of knee movement although crepitus was present and there was pain on the right.
Dr Bodel assessed the claimant’s neck injury as DRE category I (0%), the lower back as DRE category II (5%) and found a 6% impairment of the right shoulder and 2% in the left shoulder. The painful right knee retropatellar crepitus was assessed at 2%.
Dr Guirgis
Dr Medhat Guirgis, orthopaedic surgeon provided a report to the claimant’s solicitor on
1 June 2021.[37] He has a history of the claimant changing lanes and being hit from behind by another car and of “injuries to the neck, both shoulders, lower back”.
[37] Page 187 of the claimant’s bundle.
Mr McGrath complained to Dr Guirgis of:
(a) neck pain and stiffness with radiation to the left shoulder and top of the left shoulder blade;
(b) painful stiffness and heaviness of the left more than the right shoulder;
(c) tingling, pins and needles, numbness and blotchy skin in the right and left palms and fingers;
(d) lower back pain and stiffness with radiating symptoms in the right thigh and leg;
(e) patella femoral arthralgia in the right and left knee. His right knee gave significant grief and the left knee had worsened due to him favouring his left leg;
(f) burning paraesthesia in the soles of the feet;
(g) disabling frontal migraine type headaches with involvement of the left eye-socket;
(h) difficulty sleeping due to pain, and
(i) chronic anxiety depression pain and symptoms of post-traumatic stress disorder.
Mr McGrath disclosed a repetitive strain injury to his left shoulder in or around 1998 which he said settled.
On examination of the neck there was dysmetria and guarding but no neurological deficits in the upper limbs. There was reduced shoulder motion in the right more than the left. In the back there was dysmetria and guarding but no lower limb neurological deficit.
Right knee movements were normal but there was retropatellar crepitus. In the left knee there was some loss of motion, tenderness and crepitus.
Dr Guirgis diagnosed:
(a) post-traumatic mechanical derangement of the cervical and lumbar spine;
(b) rotator cuff syndrome in both shoulders with impingement;
(c) post traumatic symptoms in the right and left knee joints, and
(d) psychological symptoms.
Occupational therapist
Ms Byrnes, occupational therapist, has provided a report dated 7 July 2020 to the claimant’s solicitor. While her recommendations for treatment and care are a matter for the damages assessment, the history she took from the claimant is relevant as is the time she spent with him (three hours and five minutes). She records:
(a) Mr McGrath denied any previous work injuries, accidents or conditions that affected his ability to work or undertake tasks [3.2];
(b) he was a full-time concreter and labourer under his own ABN at the time of the accident [3.4];
(c) he was hit from vehicle suddenly and at speed and that he was thrown around hitting his chest on the steering wheel, his head on the roof and his knees on the dashboard [3.5 – 3.10];
(d) he used analgesics at home and saw his GP a few days after the car accident [3.21];
(e) he reported ongoing head, neck, upper and lower back, bilateral arm, knee and lower limb pain [3.35];
(f) he reported numbness in his upper limbs from his elbows to his hands, numbness in his feet, swelling in both knees, poor vision and ongoing symptoms of anxiety, stress and depression;
(g) the claimant has not worked in any form since the car accident [4.15], and
(h) there was no significant limitation of movement in the hands, wrist or elbows but weakness in and reduced range of movement in both shoulders [5.49].
Medico-legal reports – insurer
Dr Powell
Dr Powell, orthopaedic surgeon saw the claimant for the insurer on 7 February 2018. The claimant gave him a history that he was travelling at about 40 kmph when he was struck from behind by another car. He became aware of symptoms in his neck, lower back and right knee but did not seek medical attention for “a prolonged period” but was unable to give the date. Dr Powell notes it was difficult to get a history of events but did record referrals to
Dr Dave and Dr Sheridan. Dr Powell did not understand why no physiotherapy, or a home exercise program had been provided.
Dr Powell records that the claimant was working as a casual concreter and went back to work for one or two weeks after the accident but has not been able to work since.
The claimant made ongoing complaints of pain in the lower back and right knee. Dr Powell thought the knee surgery was reasonable and declined to assess WPI on the basis the claimant’s condition had not stabilised.
Dr Powell saw the claimant for the second time on 12 October 2018. The claimant again complained of lower back and right knee pain. On examination there were “normal spontaneous movements of the head and neck”, no spasm and full range of motion with no neurological abnormalities in the upper limbs. On examination of the back there was mild restriction and no neurological abnormalities in the lower limbs. The left knee was normal and there was crepitus on the right knee but normal range of motion. Mr McGrath was assessed as having a 2% impairment in relation to the right knee. He was 0% for the lumbar spine and not assessed for his neck or shoulders.
There is a third report from Dr Powell dated 24 August 2021. The claimant on this occasion complained of constant pain at the base of his neck extending into the interscapular region and associated with stiffness and headaches and “numbness in a global fashion”. In the lower back the claimant was saying his symptoms have worsened and he had continued pain in the right knee with instability.
The claimant reported he was taking Endone and cannabis oil and performing home based exercises every day.
There were normal head and neck movements noted and no spasm. There was some loss of range of motion in the cervical spine, but it was an equal loss. Neurological examination of the upper limbs was normal. Shoulder motion was mildly restricted on both sides.
In the lumbar spine there was tenderness but no spasm. There was some loss of motion but no neurological deficits in the lower limbs.
The knee movements were normal and there was no effusion or crepitus.
Dr Powell maintained his diagnosis of the lower back and right knee injuries and expressed the view that neck symptoms have fluctuated over the past five years and “current symptoms are more likely a reflection of the underlying spondylitic change rather than persisting effects of any soft tissue injuries sustained in the accident”.
Dr McGroder
The insurer has also retained Dr McGroder, occupational physician to provide a report. He examined the claimant on 10 March 2020.
He has a history that at the time of the accident the claimant was not working although he had been working on and off as a concrete labourer which he does as a casual and that he last worked in August / September 2016, but Mr McGrath was not sure of the dates.
The claimant was taken to his workers compensation claim for rotator cuff injuries in 2001 and Mr McGrath said he recovered from that in 2001. The claimant said he recovered from back pain recorded in Dr Natale’s records and this was only minor and muscular. He did not recall any 2014 right knee injury or being seen by Dr Dave before the accident.
The claimant’s main concern was low back pain which was constant and radiated down his right leg and into his foot and his leg felt weak. Pain also radiated from the back into the hips.
The claimant reported that his neck pain was intermittent, and it radiates into his shoulders, and he gets a feeling of pins and needles in his hands and burning in his arms.
The claimant also complained of constant knee pain, clicking when he moves but a reasonable range of movement.
On examination the right leg was larger than the left and there was restricted range of lumbar movement in all directions.
Neck and shoulder movement was full as were the right knee movements.
Dr McGroder thought it was doubtful that the claimant injured any parts of his body in the accident.
Other assessments
Medical Assessor Berry examined the claimant on 13 August 2019 and certified the claimant’s WPI on 16 August 2019.
He was asked to assess the claimant’s neck, lower back and right knee.
Medical Assessor Berry has a history from the claimant of him forming a business plan before the accident to go back to work as a concrete labourer but that he had not yet set up a business. The claimant told Medical Assessor Berry, “he had no prior accidents, injuries or claims for compensation. As far as he was aware he was not suffering from any illnesses”.
Mr McGrath told Medical Assessor Berry he slowed down for traffic lights and was hit from behind. He said he hit his head on the roof of the vehicle and his right knee on the dashboard. He drove onto Parramatta to pick up his partner and they then drove home. One of his children needed to go to the doctor the next day but Mr McGrath said he was unable to be seen.
The claimant reported pain in his neck and back with shooting pain down both legs and burning pain in both feet. He reported his right knee is a little better.
He takes Lyrica and Ibuprofen and he had physiotherapy and acupuncture but this has ceased.
On examining the neck, there was tenderness but a full range of flexion, extension and rotation. There was no guarding or dysmetria and neurological examination of the upper limbs were normal.
The thoracic spine was normal. In the lumbar spine the claimant was tender, and flexion was to half range and there was no extension – hence dysmetria.
While not the subject of the assessment, Medical Assessor Berry measured the claimant’s shoulder motion, and all movements were recorded as normal. All reflexes were present and there were no sensory changes or muscle wasting.
In the knees, there was mild tenderness and range of motion was 0 to 100 degrees in the right and zero to 130 (normal) in the left.
Medical Assessor Berry was of the view the claimant had a musculo-ligamentous sprain as a result of an impact injury from hitting his head on the roof, a lumbar spine injury as a result of being thrown around in the vehicle and a right knee injury on the dashboard.
Medical Assessor Berry assessed the claimant’s neck as DRE category I, the lumbar spine as DRE category II (5%) and 4% for the loss of motion in the right knee.
RE-EXAMINATION FINDINGS
The claimant attended a re-examination with Medical Assessor Stubbs in the Commission’s medical suites on 14 June 2023.
History from the claimant
Mr McGrath is now 49 years old. He was born in Australia and carried on schooling to year 11. He worked in security, cleaning, maintenance, and process work before undertaking concreting.
At the time of his accident, he was working as a concreting subcontractor. He was divorced from his wife in 2006 and had care of his three children then aged 4, 5 and 7. He continued working as much as he could around his childcare commitments. He regarded himself as well before the accident, exercising regularly and he was interested in martial arts.
The accident occurred on 17 October 2016. He was driving his 1992 Toyota Landcruiser slowing down for traffic lights when he was hit from behind by a small sedan (he thinks it was a Yaris) travelling at 70 kmph. He remembers being jolted by the accident and thinks there were secondary collisions with the inside of his Landcruiser. He helped the other driver, who was pregnant and noted the airbags had deployed in her car (but he had no airbags to deploy) and her car was towed away. His own vehicle had rear panel damage and was driveable and later repaired. Mr McGrath was unhappy about the standard of repairs and noted a number of faults that have since developed as a consequence of the motor vehicle accident. He drove the Landcruiser from Liverpool to attend the Panel’s appointment.
Mr McGrath says he is restricted in his activities. He moved to the Liverpool area from regional New South Wales and now lives with his 84-year-old mother who is a beneficiary of the disability support scheme. He supports himself on a Centrelink new start allowance and whatever work he can find that is within his physical limitations and childcare obligations. He was asked about the Centrelink certificates which suggests he is earning no income. He said he did not work regularly and therefore did not need to tell Centrelink about this.
He has formed a new relationship since the accident but is separated from his new partner. He has part-time care of the two-year-old daughter from this relationship and also provides care to a two-year-old granddaughter. He has a second grandchild from his middle daughter.
He says he reported the motor vehicle accident to his GP Dr Natale on 2 February 2017.
Mr McGrath was asked why he did not see Dr Natale earlier than that and he said he was told by the practice that he could not see a doctor until he had started his third-party claim.
Mr McGrath was asked about any prior injuries or work accidents. He said there were none.
He was asked about prior complaints of shoulder pain and a torn left rotator cuff due to a work injury as noted in the Centrelink records of 2010, but he could not recall this.
He was asked about the Busby Medical centre records of neck pain in 2012 with pain in the neck and restricted right sided movements but he did not recall this.
Mr McGrath could not remember other injuries that have been mentioned in his clinical records such as the injury to his knee in September 2014 when the cupboard fell on his knee. He did not remember that incident or being sent for an X-ray or being referred to
Dr Dave.
He was asked about notes made by Dr Natale in January 2016 where it is recorded he had “recurrent low back pain in the lumbar region with tenderness on palpation and restricted movements” following which a CT scan was arranged. McGrath did not recall this episode of low back pain or having the CT scan.
Mr McGrath said that there was no significant prior injuries or incapacity but that his social circumstances as a single parent limited him to sporadic casual work.
On 2 February 2017 Dr Natale recorded the motor vehicle accident noting that the claimant had suffered injuries to his right knee, was experiencing pain in the neck and the thoracic spine as well is the lower back and headaches. Mr McGrath said that at this time he had neck pain, low back pain and difficulty sleeping. He said he was so anxious that he did not drive for six weeks following the motor vehicle accident.
Mr McGrath said at the time of the accident he was living with his three children in rented accommodation with a lot of financial stress. He was referred to Dr Dave (orthopaedic surgeon) for his right knee pain and Dr Mark Sheridan (neurosurgeon) for his back pain.
Dr Dave subsequently performed an arthroscopic chondroplasty of the right knee which has given him little benefit. Dr Sheridan suggested MRI studies of the lumbar spine.
Mr McGrath says he continued to see Dr Natale at Busby until August 2020. Oxycodone was prescribed for his lower back pain. Physiotherapy was prescribed but only six visits could be made under the Medicare scheme each year. He said there has been continuing incapacitating low back and right knee pain since the accident.
Mr McGrath then said he had developed left knee pain, and an MRI of the left knee was suggested.
Mr McGrath was asked why there was no mention of his shoulder in the notes after the accident and why no imaging has been performed of his shoulders and why there was a delay in seeing Dr Dave about his shoulders. Mr McGrath thought he had reported shoulder injuries from the beginning and had pain in his shoulders since the accident. He said he delayed seeing Dr Dave and has had no other investigations done due to his financial difficulties.
In November 2020 Dr Natale moved to the Family Medical and Dental Practice in Liverpool and Mr McGrath moved to this practice so he could continue to see Dr Natale. He continued to complain of neck, back and right knee pain together with tingling and numbness in both hands and feet in a glove and sock distribution. This was associated with cold sensitivity and further Oxycodone was prescribed.
Mr McGrath said he made an application in April 2021 for a payout on the basis of a total and permanent disability for the injuries to his neck, shoulders, back and knees. At that time, he said he was taking Oxycodone 5 mg once-a-day.
Present situation
Mr McGrath reports that he is no longer taking Oxycodone but does receive Codeine 30 mg (prescription only), Valium and that he self-medicates with cannabis.
He says he is limited in his physical activities because of central neck, mid scapular thoracic and central low back pain. There are predominantly left-sided occipital headaches. He continues to have bilateral knee pain and cannot squat. The paraesthesia and sensitivity to cold remain in both hands and both feet. All the symptoms are relieved to some extent by heat and moving about. Standing, sitting or lying with constant posture increases the level of discomfort.
He is no longer receiving any physiotherapy. For a while he attended the Witham Centre to carry out his own program of exercise. His symptoms remain constant, and he says they do not show any signs of improving with time.
Physical examination
Mr McGrath was measured at 174 cm tall and weighed 85 kg.
During the general examination Mr McGrath demonstrated that he can tip toe and heel-toe walk and stand on one leg at a time but does not squat beyond 60 degrees of knee flexion. He can rise from a low seat without any difficulty evident. He has good standing balance, normal posture and a muscular, athletic build for a man who is nearly 50 and says he is limited in his physical activities.
Cervical spine
Mr McGrath had a good active range of movement in all directions (flexion and extension and lateral flexion left and right) to four fifths of normal. Active rotation to the left was initially four fifths of normal while rotation to the right was initially restricted to about two thirds. On informal observation, when dressing and undressing and moving about the examination room, the claimant demonstrated a greater range of movement in the neck and a range of cervical rotation of four fifths of normal on both sides.
None of the claimant’s neck movements were accompanied by any spasm or guarding.
There was mild but not excessive tenderness to firm pressure over the trapezius. The girth of the upper arms was 36 cm and 31 cm in the forearms bilaterally. There was no sign of muscle atrophy or wasting and as noted earlier the claimant was well muscled.
Strength in all motor groups was normal and measured at five out of five. Reflexes were brisk and symmetrical and easy to elicit.
Mr McGrath complained of a sensitivity to cold over the whole of the hand and tingling in the palms and all digits in both hands. Sensory mapping with the two-point discrimination test showed no loss. Provocative and nerve root tension tests were negative.
There was no swelling in either hand, the peripheral veins stood out and colour and warmth of both hands were normal.
Upper limbs
The claimant’s active shoulder movements were measured three times with a goniometer and are recorded in the table below.
Movement Normal Left Right Flexion 180 140 140 Extension 50 50 50 Abduction 180 90 90 Adduction 50 50 50 Internal rotation 90 90 90 External rotation 90 90 90
The difference in flexion and abduction compared to the other shoulder movements was pointed out to Mr McGrath. Mr McGrath said that the shoulders were uncomfortable in these positions. The range of motion for all other movements were normal.
When the examiner attempted to repeat the movements passively (providing Mr McGrath with assistance to lift his shoulders) the claimant actively resisted suggesting a much greater range of motion would have been possible. The restriction of forward flexion and abduction was also unchanged when the claimant was lying supine with the neck well supported. Both of these findings suggest a lack of effort on the part of Mr McGrath.
It is the clinical judgment of the Medical Assessors that the lack of passive movement is a sign that any shoulder restriction is not secondary to a neck injury. Scapular rotation was normal within the limited range demonstrated and there were no local signs of point tenderness, impingement or crepitus. It was the clinical judgment of Medical Assessor Stubbs that this indicates no internal derangement currently present in either shoulder.
Both elbows, wrists and hands show unrestricted movement. See cervical spine for other details on the clinical examination.
At the end of examination, Mr McGrath was able to perform a full sit up without any apparent shoulder or neck pain which would be expected if he had a neck injury causing shoulder restriction or a frank shoulder injury restricting movements.
The clinical examination of the upper limbs is normal other than the two overhead movements of flexion and abduction.
Thoraco-Lumbar spine
There was tenderness in the small of the back indicated by the patient with some complaint of radiating pain into the buttocks but not beyond the upper thighs. This tenderness was not accompanied by spasm or guarding. Mr McGrath did not indicate pain in the upper back.
Forward flexion was reduced by one fifth demonstrated as fingertips to the distal shins and extension was also reduced by one fifth. Mr McGrath could achieve side bending to the head of the fibula on both sides. There was therefore no dysmetria.
Reflexes were brisk and symmetrical and easy to elicit.
Mr McGrath complained of numbness in a sock-like distribution from the ankle down. Sensory mapping shows complaints of paraesthesia but no loss on the two-point discrimination test. Straight leg raising demonstrates hamstring tightness at 90 degrees of knee flexion and 70 degrees of extension. The traction test was negative, and the slump test shows good forward movement of the lumbar spine combined with full ability to extend the knees.
Girth of the lower limbs is 50 centimetres at 10 cm proximal to the patella on both sides and 40 cm maximum calf thickness bilaterally. There was no evidence of muscle atrophy or wasting and in fact the claimant was quite well muscled.
Lower limbs
Hip flexion was normal at greater than 130 degrees on both sides and knee flexion was also normal on both sides at 140 degrees. Both joints had full extension.
The knees had no effusion and there was normal alignment and no loss of stability on either side. There was a soft full range crepitus in the right patellofemoral joint with tenderness and an audible “clunk” at full flexion in the left patellofemoral joint.
Both ankles and feet had a normal range of movement, normal skin colour, temperature and veinous definition, there was no swelling.
The complaints of cold sensitivity with paraesthesia and pain in the extremities is suggestive of Raynaud’s phenomenon (a non-traumatic syndrome involving overactivity of the sympathetic nervous system) but there are no other clinical signs present.
Imaging
There were no imaging studies brought to the examination for review.
The reports of imaging studies undertaken as contained in the GP notes have been considered.
Consistency
The biomechanics of rear impacts was discussed with Mr McGrath. It was suggested that knee injuries are very rare in rear end impacts. Mr McGrath asserted that his knees hit the underside of the dashboard and explained that this was because he has a very upright seating position in the Landcruiser.
There is a close to four-month gap from the motor vehicle accident in August 2016 to the first attendance on a health practitioner in February 2017. When asked about this Mr McGrath said this was because Dr Natale said he could not see him until he started his claim. The Panel notes this is inconsistent with the records. The claimant saw Dr Natale in February 2017 and his claim form is dated April 2017. Mr McGrath provided no further explanation.
The claimant’s left and right shoulder active (self-powered) movements were consistently restricted over three measurements, but further passive (assisted by the examiner) movement was actively resisted by Mr McGrath. When this was put to him, he said his movements were the best he could achieve.
The claimant’s range of shoulder motion had improved since Dr Bodel examined his right shoulder but has decreased slightly in the left but was normal for the first few years after the accident. The claimant explained he had shoulder symptoms since the very beginning but could not explain why it was not in Dr Natale’s records and that the reason he had no treatment or investigations undertaken was because he could not afford it. The Panel notes that this is inconsistent with the investigations undertaken of his lumbar spine (which presumably he could afford because they were done) and the physiotherapy provided under Medicare for his lower back (which could also have included the shoulder had he mentioned them to his doctor).
CONSIDERATION OF THE ISSUES
Is the claimant’s evidence reliable?
In addition to the issues of consistency raised above, there were other issues with the reliability of the claimant’s evidence.
The claimant’s memory of events before the accident is not good. He could not remember a previous workers compensation claim and shoulder injuries in 2001 although he remembered them in 2017 when he completed his claim form. He could not remember complaining of neck pain in 2012 or a cupboard falling on him causing an injury to his right knee in 2014 and he could not remember seeing his doctor less than a year before the accident complaining of recurrent lower back pain.
The claimant told other doctors he self-medicated for the first three to four months after the accident. The claimant told the insurer’s occupational therapist and Dr Bodel that he saw a GP three or four days after the accident. There is no record before the Panel of the claimant seeing a doctor in that time frame. The claimant told Dr Berry he took his child to the doctor the day after the accident but that he could not be seen at that time.
The claimant told Medical Assessor Stubbs that the reason he did not see a doctor for the first nearly four months after his accident was because he was told by Dr Natale that he could not be seen without a third-party claim being made. The Panel notes the claim was made in April 2017 and the claimant had two attendances with Dr Natale before then. The Panel does not accept the explanation. It is not plausible.
The claimant also said that at the time of the accident he was in significant financial stress and caring for his children and the Panel is of the view this is a more likely explanation for the failure to attend upon Dr Natale. The claimant is not a frequent attender at the doctor in any event and the notes contain frequent references to the claimant’s personal circumstances.
Noting that the Christmas, New Year and school holiday period occurred between the date of the accident and the date of the claimant’s first attendance, the Panel is prepared to accept that the claimant did self-medicate after the accident before consulting his GP.
What injuries did the claimant sustain in the accident?
Cervical spine
The Panel notes the records from the Busby Medical Centre suggested Mr McGrath had right sided neck symptoms in March 2012. There are no other pre-accident or other records indicating a longstanding neck issue.
The February and March 2017 entries from Dr Natale do not refer to neck pain however the medical certificate completed by him does.
The Panel accepts the claimant injured his neck in the accident on the basis of the claim form, the medical certificate attached to the claim form.
The Panel notes an absence of neck complaints before further complaints of neck pain in June 2017 and that radiology reports at that time reveal degenerative changes but no nerve root impingement or central canal stenosis. Dr Sheridan saw the claimant in November 2017 for neck pain and reported on the MRI as showing slight disc bulging. The claimant then complains of neck pain to Dr Day a cardiologist in June 2019 and in November 2021 there were complaints of right sided neck pain to Dr Natale.
The Panel is satisfied that the claimant sustained a soft tissue injury to his neck in the accident. While it is doubtful that nearly seven years later the injury is still causing symptoms, in the light of the clinical examination and the degree of impairment, the Panel does not propose to engage in a further consideration of the issue of the cause of the claimant’s current impairment.
Lumbar spine
The January 2016 entry by Dr Natale is of longstanding lower back pain and the claimant was tender with restricted movements and was referred for a CT scan. There are no other pre-accident notes about lower back pain.
The Panel notes that the claimant included the upper and lower back in his claim form and there were complaints in February and March 2017 to Dr Natale of lower back pain.
Dr Natale included upper and lower back injuries in the medical certificate.
Back pain was again mentioned in June and August 2017 and radiology which revealed minimal degenerative changes which Professor Sheridan noted was normal.
Lower back continued to be a feature in 2018 with a further MRI showing a minor herniation at L5/S1 but no nerve root contact.
Dr Natale wrote to the claimant’s solicitors in May 2021 saying that there may have been complaints of pain not recorded in the notes.
The Panel accepts the claimant injured his upper and lower back in the accident. The lower back appears to be more of a feature and was present when examined by Medical Assessor Stubbs. The nature of the lumbar injury is a soft tissue injury.
Shoulders
The insurer says there was no injury to the left or right shoulders on the basis of the first complaints recorded in Dr Natale’s notes. The insurer is correct in that there is no record of shoulder complaints in the early part of the notes however the medical certificate dated
2 February 2017 attached to the claim form does mention both shoulders (although the pain diagram does not indicate the shoulder joints as an area of pain).
Complaints of symptoms in the shoulders emerge in January 2019 (paraesthesia in the upper limbs), June 2019 (in the arms to his GP and in the left shoulder to the cardiologist). There were no complaints of shoulder pain to the Dr Powell in February and October 2018 and more importantly to the Panel no complaints of shoulder pain to Dr Maniam, the claimant’s own expert in March 2019.
Dr Natale in a letter to the claimant’s solicitor dated 30 January 2023 says that the claimant has had right shoulder pain and restriction of movement since the accident and Prime Physiotherapy have a record of a right shoulder seat belt injury and treated him for it in 2023.
On the basis of Dr Natale’s letter and the physiotherapist’s note, the Panel accepts the claimant could have sustained a right shoulder seat belt type injury or that he may have experienced trapezius pain causing restriction in the acute phase of his neck injury.
The Panel does not accept that the claimant injured his left shoulder in the accident. There is no mention of left shoulder in Dr Natale’s letter, and the physiotherapy notes of 2023 only mention the right. The mechanism of accident does not support a left shoulder injury (seat belted driver) and the first mention of a specific left shoulder injury was in the report of Dr Day, cardiologist, in 2019.
Right knee
The insurer’s submissions assert that the records of Dr Natale suggest a left knee injury occurred in the accident. This appears to be incorrect, the records viewed by the Panel note a right knee injury and that right knee radiology was requested in 2017.
Leaving aside the issue of the first three and half months, there has thereafter been consistent complaints of pain in the claimant’s right knee.
While the mechanism of injury in rear impacts does not normally cause the knee to impact on the dash, on the basis of the initial records and the consistent complaints the Panel is prepared to accept the claimant did sustain a soft tissue right knee injury in the accident when his right knee hit some part of the car in the accident.
Left knee
The Panel is not satisfied that there was any injury to the left knee sustained in the accident. There is no complaint of left knee injury in the clam form or included in the medical certificate completed by Dr Natale.
The claimant’s medico-legal experts note as follows:
(a) Dr Maniam in February 2019 – right knee injury and pain with restricted movement. No mention of left knee injury;
(b) Dr Sheehan in February 2020 – a blow occurred to both of his knees in the accident. The left knee was completely normal but there were symptoms in the right knee;
(c) Dr Bodel in May 2021 – right knee injury but no restriction of knee movement and no injury to the left recorded, and
(d) Dr Guirgis in June 2021 – diagnosis of patella-femoral arthralgia in both knees with the left knee developing symptoms due to favouring the right knee.
The Panel does not accept that a consequential left knee injury has occurred as a result of Mr McGrath favouring the right knee noting that the symptoms in the right knee have been minor, the surgery to the right knee occurred five years ago and there was no restriction of movement of the right knee in May 2021 when the claimant was examined by Dr Bodel.
IMPAIRMENT ASSESSMENT
Spinal impairment
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions: cervical; thoracic, and lumbar. In Mr McGrath’s claim, he only alleges injury to the cervical and lumbar regions.
There are five diagnostic related categories and a number of indicia provided to assist an examiner determining which of the categories is the correct category (see Table 7).
The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria; or
(c) non-verifiable radicular complaints defined in table 8 of the Guidelines as:
(i)symptoms (shooting pain, burning sensation, tingling), which
(ii)follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(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.
In Mr McGrath’s case there was tenderness and some complaints of pain which means he at least attracts a DRE category I rating for both the neck and lower back.
Neck
In the neck there was no guarding or dysmetria and while there were complaints of a loss of sensation in the hands, this was in a glove like distribution which did not follow a specific dermatomal distribution and was not reproducible on testing. The claimant’s complaints of sensitivity to the cold does not indicate a cervical nerve root injury but is suggestive of Raynaud’s syndrome.
There were no neurological signs in the upper limbs which might indicate a cervical nerve root injury. In particular there was no loss of reflexes, no nerve root tension signs, no muscle atrophy or weakness and no reproducible sensory loss elicited on testing.
The Panel notes Dr Sheridan’s records in 2017 that the claimant’s neck pain was not radiating into the upper limbs and there were normal shoulder movements in any event.
Dr Sheehan has a history of neck pain in 2020 with some involvement of both shoulders although movement of the upper limbs was normal.
It is the clinical judgment of the medical members of the Panel that any shoulder impairment is not a result of any neck injury.
The claimant’s neck impairment is DRE category I which attracts a 0% WPI.
Lower back
In the lower back there was no guarding or dysmetria and while there were complaints of numbness over both lower limbs from the ankle this did not follow a specific dermatomal distribution and was not reproducible on testing.
There were no neurological signs in the lower limbs which might indicate a thoracolumbar nerve root injury. In particular there were no lost reflexes, no nerve root tension signs, no muscle atrophy or weakness and no reproducible sensory loss.
The claimant’s lower back impairment is DRE category I which attracts a 0% WPI.
Shoulder impairment
Is the claimant’s current impairment related to the accident?
The Panel has accepted that the claimant could have injured his right but not his left shoulder in the accident due to the seat belt passing over his shoulder. The nature of that injury is a soft tissue injury. The Panel has also accepted that in the acute phase, the claimant may have experienced pain in his trapezius related to the neck injury causing restriction of shoulder motion.
The Panel notes the reference to a workplace injury, left rotator cuff troubles and an inability to lift above his shoulders in the Centrelink documents which may explain the restriction of motion in the left shoulder evident when the claimant was examined by Medical Assessor Stubbs.
Dr Maniam in February 2019 records a full range of motion in both shoulders. Medical Assessor Berry in August 2019 also recorded a full range of motion in both shoulders.
Dr Sheehan in February 2020 records normal upper limbs and Dr McGroder in March 2020 records normal shoulder motion.
The first record of reduced shoulder motion is in Dr Bodel’s report of May 2021 and Dr Guirgis’ report of June 2021, both nearly five years after the accident. While the Panel has found the claimant could have sustained a right shoulder injury in the accident, the Panel is not satisfied that the claimant’s current symptoms in the right shoulder are caused by the accident. It is not medically plausible for a frank soft tissue injury to the right shoulder to result in no restriction of motion of the shoulders for five years and then for a restriction of motion to suddenly emerge.
Dr Natale, in 2023 supported the finding of a right shoulder injury and the notes of Prime Physiotherapy reveal treatment for right shoulder symptoms in 2023. Within those records are three measurements of right shoulder flexion at 120, 160 and 160 degrees when treatment concluded. The claimant demonstrated only 140 degrees of flexion when examined by Medical Assessor Stubbs. The Prime records also recorded abduction at 140 degrees in February 2023 whereas the claimant demonstrated only 90 degrees of motion to Medical Assessor Stubbs. It is not medically plausible for these differences to be explained by a sudden deterioration of an August 2016 injury.
Finally, it is the clinical judgment of the medical members of the Panel that there are no clinical findings of an intra-articular injury to either shoulder. There is also no evidence of limited function as there was no specific local tenderness, no thickening of the acromioclavicular joint and no wasting of any of the claimant’s shoulder musculature on either side. The medical members of the Panel would have expected some evidence of wasting or atrophy in the upper limbs if the claimant had an impairment caused by the accident nearly seven years ago.
The Panel is not satisfied that any current impairment of right shoulder motion results from any injury caused by the accident.
As the Panel has found there was no left shoulder injury, there is therefore no impairment of the left shoulder.
If there was an accident-related right shoulder impairment, what is the impairment?
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) internal rotation, and
(f) external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
Movement Normal Right UEI Flexion 180 140 3% Extension 50 50 0% Abduction 180 90 4% Adduction 50 50 0% Internal rotation 90 90 0% External rotation 90 90 0%
The total upper extremity impairment is 7% which corresponds to a WPI of 4% in accordance with Table 3 at page 20 of the AMA4 Guides.
The Guidelines provide for inconsistency as follows:
“[1.40] Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
If the right shoulder impairment of 4% was caused by the accident, then the Panel’s view is that the range of motion methodology is not applicable due to the implausible measurements obtained by Medical Assessor Stubbs and for the following reasons:
(a) the claimant’s normal range of motion recorded before 2021;
(b) the variations in range of motion recorded since 2021;
(c) the claimant’s left (uninjured) shoulder impairment is similar to the right (injured) shoulder in terms of the final measurement of flexion obtained by Prime Physiotherapy (both measured at 160 degrees at the conclusion of treatment);
(d) the claimant’s uninjured left shoulder and his injured right shoulder have identical restrictions measured by Medical Assessor Stubbs suggesting a bilateral and likely degenerative cause and not a traumatic cause for the right shoulder impairment;
(e) the specific restrictions of flexion and abduction seen in both shoulders is not consistent with the otherwise unimpaired range of movement in the other movements of the shoulders, and
(f) the active resistance of passive movement when movement was aided by Medical Assessor Stubbs and the lack of further movement when the upper limbs were supported as Mr McGrath was lying on the examination bed indicates a lack of sub-optimal effort or the exaggeration of complaints.
If the range of motion is not to be used and an impairment was to be allowed for the right shoulder restriction of motion, then the Panel is of the view that the most appropriate method of assessment would be to use the combination of tables 18 and 19 on pages 58 and 59 of the AMA4 Guides.
The restriction of motion in the claimant’s right shoulder would be akin to that of someone with mild inconstant acromioclavicular (AC) joint crepitations during active range of motion which would result in an impairment of 10% (table 19 - mild) multiplied by 25% (table 18 for the AC joint) and rounded up to 3% WPI.
Right knee
The Panel has found the claimant could have sustained an impact injury to the right knee in the accident and he has complained of pain in the right knee consistently since the date of the first report in February 2017. There was a soft crepitus with tenderness in the right patellofemoral joint on examination by Medical Assessor Stubbs.
Using the footnote to table 62 on page 83 of AMA4 Guides, the claimant has a history of direct trauma, a complaint of patellofemoral pain and crepitation on examination but without evidence of joint space narrowing which attracts a WPI of 2%.
CONCLUSION
The claimant’s WPI for the injuries referred for assessment is as follows:
(a) Cervical spine DRE I = 0%
(b) Lumbar spine DRE I = 0%
(c) Left shoulder No injury caused by the accident
(d) Right shoulder Injury resolved resulting in no impairment
(e) Left knee No injury caused by the accident
(f) Right knee 2% WPI
The Panel finds that the degree of the claimant’s WPI resulting from the injuries caused by the accident is not greater than 10%.
As the Panel has come to the same conclusion as Medical Assessor Preston but with a different total and because Medical Assessor Preston has included the total in her certificate, it follows that her certificate must be revoked.
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