Melhem v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Melhem v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 40
CLAIMANT:	Justine Bou Melhem
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL:	Member Belinda Cassidy Medical Assessor Drew Dixon Medical Assessor Margaret Gibson
DATE OF DECISION:	3 March 2022
CATCHWORDS:	MOTOR ACCIDENTS- Motor Accidents Compensation Act 1999 (MAC Act); Medical Review Panel matter; claimant sustained injuries to her neck, back, shoulders and right knee as driver of motor vehicle; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment assessed at 2%; claimant applies for and was granted review under section 63 of the MAC Act; no dispute by claimant as to thoracic spine or right shoulder injury; no challenge by claimant to medical examination findings; no challenge by insurer to findings on causation; claimant argued no regard had for medico-legal evidence; Held- Certificate confirmed; consideration of clauses 1.21, 1.38, Table 7, definitions of non-verifiable radicular complaints and radiculopathy, 1.50 and 1.65 and table 62 of Motor Accident Permanent Impairment Guidelines and the assessment of crepitus in the knees and scapulothoracic joint crepitus.
DETERMINATION MADE:	1. Confirms the certificate of Medical Assessor Home dated 24 June 2021. 2. Certifies that the degree of Justine Bou Melhem’s permanent impairment resulting from the injuries caused by the motor accident on 18 October 2017 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 18 October 2017, Justine Bou Melhem was the driver of her own Corolla when she was involved in an accident and injured. She is currently 30 years of age.
On 27 October 2017 Ms Melhem made a claim for damages against NRMA, the third-party insurer of the motor vehicle she considers at fault in causing her accident[1]. NRMA has denied liability for the claim in a notice dated 21 February 2018[2].
[1] The claim form is identified as document A1 and can be found at page 63 of the Claimant’s bundle.
[2] The section 81(1) notice is identified as document A2 and can be found at page 71 of the claimant’s bundle.
The Panel notes the description of the collision in the claim form. NRMA’s insured is said to have made a right hand turn directly in front of the claimant’s vehicle. The claimant has told the medio-legal practitioners who have assessed her that the airbags in her vehicle deployed, and her car was towed away then written off.
Ms Melhem sought damages for non-economic loss however NRMA refused to concede she has an entitlement to those damages.
The dispute between Ms Melhem and NRMA was referred to the Personal Injury Commission (the Commission) for assessment and on 24 June 2021 Medical Assessor Alan Home determined Ms Melhem had a whole person impairment of 2%.
The claimant disputes this finding and filed an application for review of his assessment. The President’s delegate determined, on 21 September 2021, that there was reasonable cause to suspect a material error in Assessor Home’s decision and a Review Panel (the Panel) has been convened by the President of the Commission.

LEGISLATIVE FRAMEWORK

Provisions in the Act

Ms Melhem’s claim for damages is made under the Motor Accidents Compensation Act1999 (the MAC Act). The entitlement to, and the amount of damages that can be awarded to the claimant is subject to the provisions of Chapter 5 of that Act.
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[3] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2021 is $590,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[4].
[4] See section 132 and section 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Assessor Home’s, further medical assessments and the Review of medical assessments by a review panel[5].
[5] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[6] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.

General Provisions

Clause 1.21 of the Guidelines says that: “The evaluation should only consider the impairment as it is at the time of the assessment”.
The Guidelines also deal at clause 1.38 with the assessment of pain:
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”
The Panel notes that certain injuries such as uncomplicated fractures of the sternum or ribs may not result in any assessable impairment[7] and an assessment of 0% WPI does not mean an injury did not occur or that the claimant has no symptoms arising from it.
[7] Clause 1.23 of the Guidelines.

Assessment of the spine

When undertaking an assessment of the spine, each of the three segments of the spine (cervical, thoracic and lumbar) must be considered separately and then Diagnostic Related Estimates (DRE) are applied to determine the degree of impairment resulting from the injury to each of the three segments.
Table 7 in the Guidelines includes the following summary of three of these DREs relevant to this claim and the Panel’s assessment[8]:
(a)   low back pain, neck pain or symptoms – DRE I;
(b)   low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II, and
(c)   low back or neck pain with radiculopathy – DRE III.
[8] For example, there is no suggestion in Ms Melhem’s matter that she sustained a vertebral body compression of less than 25% or any spinal fracture which might attract a DRE II assessment.
The Guidelines contain a definition of non-verifiable radicular complaints which is relevant to the DRE II categorisation as follows[9]:
“Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”
[9] Table 8.
There is also a definition of radiculopathy which is relevant to the categorisation of an injury as DRE III as follows[10]:
1.“Radiculopathy is 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:
1.138.1 loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.2 positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.3 muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.4 muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
1.138.5 reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
[10] Clause 1.138.

Assessment of the shoulders

When assessing upper extremity impairment, the Panel notes that the shoulder is considered part of the upper extremity as is the upper arm, forearm, hand and fingers. Injuries to various parts of the upper extremity are assessed, then combined to determine an “upper extremity impairment” which is then converted into a WPI percentage.
In Ms Melhem’s case, she has alleged an injury to her right and left shoulders but no other parts of her upper limbs. The following clause of the Guidelines provides guidance:
“1.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2 Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.
1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
1.50.4 If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5 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.”
The Panel also notes clause 1.65 of the Guidelines which says:
“Impairment due to other disorders of the upper extremity, (pages 58–64, AMA4 Guides) should be rarely used in the context of motor accident injuries. The medical assessor must take care to avoid duplication of impairments.”
Part 3.1 of Chapter 3 of the AMA4 Guides concerns the evaluation of impairment of the hand and the upper limb and at 3.1m provides guidance to assessing “Impairment Due to Other Disorders of the Upper Extremity”. At page 58 is a section concerning joint crepitation with motion. Crepitation can be either severe, moderate or mild which is described in table 19 as “inconstant during active range of motion” and a 10% joint impairment is allowable. That percent is then multiplied by the prescribed value of the relevant joint as listed in table 18. In the shoulder area, only two joints are identified in table 18, the glenohumeral joint and the acromioclavicular joint. The Panel notes the scapula thoracic junction or joint is not mentioned.
There is a note on page 58 which says:
“The evaluator must take care to avoid duplication of impairments when other findings, such as …limited motion, are present. Those findings might indicate a greater severity of the same pathological process and take precedence over evaluation of joint crepitation which should not be rated in this instance.”

Assessment of the knees

Part 3.2 of Chapter 3 of the AMA4 Guides provides 13 methods of assessing “The Lower Extremity” and states that “In general, only one evaluation method should be used to evaluate a specific impairment”. Range of motion is one of these and diagnosis-based estimates are another.[11] Neither of these provides for crepitation.
[11] Section 3.2e at page 77 and section 3.2i at page 84.
On page 82 – 83 of the AMA4 Guides under the heading 3.2g Arthritis is table 62 entitled “Arthritis Impairments Based on Roentgenographically determined Cartilage Intervals”. The note at the bottom says that:
“In a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on roentgenograms, a 2% whole-person or 5% lower extremity impairment is given.”

MEDICAL ASSESSMENT IN ISSUE

Assessor Alan Home examined the claimant on 22 June 2021 and took a history from the claimant that she had no previous injuries to her neck, shoulder, back or knee and no subsequent accident or conditions.
Assessor Home takes a history of the accident consistent with other reports and says Ms Melhem declined the trip to hospital and was driven the short distance home by a friend.
The Assessor records Ms Melhem’s treatment including her attendance on Dr Lalita at Hilltop Medical Centre the day after the accident, bruising developing over the right thigh and left forearm and that neck, back and shoulder (left more than right) pain continued and she developed right knee pain. He has a history from Ms Melhem of 20 physiotherapy treatments being provided over 12 months and that further physiotherapy was not approved by the insurer. The claimant was said to attend upon a masseur on occasions and saw a counsellor for anxiety associated with the accident.
Assessor Home records the following symptoms:
(a)   neck pain once or twice a week with mild to severe intensity and she has heaviness in the left arm and occasional paraesthesia in the “entire left hand”;
(b)   frequent pain in the posterior of the left shoulder blade nine days per fortnight with clicking beneath the scapula;
(c)   pain across the top of the upper back;
(d)   twelve months after the accident lower back pain developed associated with prolonged sitting. There was no radiation from this lower back pain into the lower limbs for example;
(e)   occasional pain in the right shoulder girdle, and
(f)    intermittent right knee pain coming on ‘out of the blue’ usually when walking and it settles. But she did not report any swelling, giving way or locking of her right knee.
In terms of Ms Melhem’s current treatment she reported using analgesia a few days a week.
On examination of the neck, Assessor Home found:
(a)   no muscle spasm;
(b)   flexion and extension were normal;
(c)   right and left rotation movements were to full range;
(d)   right and left lateral flexion was performed to the full range;
(e)   no dysmetria was present;
(f)    no muscle guarding was present;
(g)   neurological examination of the upper limbs revealed no muscle wasting;
(h)   normal myotomal power in all muscle groups;
(i)    normal sensation, and
(j)    deep tendon reflexes present and symmetrical.
When the shoulders were examined, there was no muscle wasting and Assessor Home reports a full range of active motion in all planes. He also records:
(a)   left shoulder showed no muscle wasting, no tenderness and mild muscle tension in the left trapezius;
(b)   when compared to the right shoulder there was restriction of flexion (150 degrees vs 180) and abduction (150 degrees vs 170) in the left shoulder, and
(c)   a full range of scapulothoracic motion but there was crepitus (inconstant) between the scapula and thorax during elevation.
The mid and lower parts of the spine were also examined by Assessor Home with these findings recorded:
(a)   normal curvature without muscle spasm;
(b)   thoracic rotation symmetrical and normal without muscle spasm or guarding;
(c)   flexion and extension performed to normal range without spasm or guarding;
(d)   no dysmetria;
(e)   right and left lateral flexion symmetrical and normal range of motion;
(f)    straight leg raising to 70 degrees on both sides;
(g)   normal neurological examination with normal limb power, normal sensation and deep tendon reflexes present and symmetrical, and
(h)   no wasting of muscles in the thigh.
When the knees were examined on the right range of motion was normal (0 degrees in extension and 140 degrees in flexion), there was no joint effusion, ligaments were stable and there was no crepitus. However, on the left there was abnormal patella femoral joint crepitus, but otherwise the range of motion was also normal (0 degrees in extension and 140 degrees in flexion) with no other abnormality.
Assessor Home summarises the evidence and notes that while Dr Rogers had the claimant’s MRI scan, he did not.
Assessor Home was satisfied that the mechanism of the accident could and did cause injuries to Ms Melhem’s neck, thoracic and lower back, a straining injury to the left shoulder, contusion to the right shoulder and a soft tissue contusion to the right knee. His findings on causation were made on the basis of the early documentation.
He assessed the various injuries as follows:
(a)   soft tissue neck injury - DRE category I (0% WPI). While acknowledging the complaints of neck pain he had found no muscle spasm, symmetrical spinal motion and no verifiable or non-verifiable radicular complaints and no muscle guarding;
(b)   soft tissue injuries to the thoracic and lumbar segments of the spine - DRE category I (0% WPI for each). He accepted there was pain but found no muscle spasm or guarding, symmetrical spinal movements and no verifiable or non-verifiable radicular complaints;
(c)   soft tissue injury to the right shoulder – (0% WPI) based on a normal range of motion in all planes of movement;
(d)   soft tissue injury and left scapula dysfunction – based on the recorded degrees of movement, Assessor Home found a 3% upper extremity impairment which translates to a 2% WPI. In relation to the shoulder crepitations which he found at the scapulothoracic junction he did not consider this a separate impairment as they were not constant, occurred on elevation, and the shoulder impairment had been assessed by way of the range of motion method, and
(e)   soft tissue right knee injury and patella-femoral contusion – 0% WPI but no further explanation was given.

SUBMISSIONS

Claimant’s submissions

The claimant’s submissions[12] rely on the following general ‘grounds of appeal’ [8]:
(a)   the Assessor has failed to comply with the requirement of the Guides and the guidelines;
(b)   he has failed to take into consideration all the material;
(c)   he made materially erroneous findings;
(d)   his findings are substantially inconsistent with the overwhelming preponderance of the evidence relied on by both parties, and
(e)   incorrectly calculated the level of WPI.
[12] 22 July 2021
In terms of the claimant’s neck injury, the submissions detail the Assessor’s reports of pain and her subjective feelings. The submissions suggest the Assessor has failed to explain why the claimant falls into DRE I not II and has failed to consider the evidence of both Drs Rogers and Assem who categorised the claimant as DRE II [15-28].
In respect of the left shoulder the claimant says Assessor Home correctly recorded 2% for reduced range of motion but failed to give a separate percentage for the crepitation in her shoulder joint [29 – 33].
Assessor Home’s assessment of the right knee is challenged on the basis that he did not explain his assessment of 0% when there was pain and crepitations had been recorded by ‘multiple’ doctors (two).
The claimant asserts she should be categorised as DRE II for her lumbar spine on the basis that the claimant has ‘nerve specific’ back pain with signs of radiculopathy and non-verifiable radicular complaints into the buttocks and lower extremities. The claimant says there are two signs of radiculopathy.
The claimant cites two cases relevant to the Proper Officer’s (Delegate of the President) decision-making.

Insurer’s submissions[13]

[13] Dated 10 August 2021.

The insurer takes no issue with any of the Assessor’s causation findings.
The insurer says the Assessor did comply with the Guidelines and has referred to them throughout his assessment, reviewed the evidence, conducted an interview and clinical examination and undertaken the calculation required.
The insurer says the Assessor has considered the evidence as he has referred to it during his reasons.
The insurer also says the Assessor has considered the evidence recording the claimant’s complaints of pain but then referred to his own examination findings.

The insurer finally notes the Assessor has not incorrectly calculated WPI but has used the correct methodology for each body part assessed.

REVIEW OF THE EVIDENCE

In her claim form[14], Ms Melhem listed the following injuries:
(a)   STI / discal injury – neck;
(b)   STI / discal injury - upper back;
(c)   radiculopathy from neck into upper limbs;
(d)   STI / muscle / tendon left shoulder;
(e)   STI / discal injury - lower back;
(f)    injury to right leg and knee, and
(g)   psychological sequelae.
[14] Question 22 page 67 of the claimant’s bundle.
The claimant did not list an injury to her left knee.

Treating medical evidence

The medical certificate completed by Dr Prasad of Hilltop Road Medical Centre dated 6 November 2017 notes injuries as follows:
(a)   pain neck, both shoulder, pain upper back;
(b)   left arm;
(c)   bruises right thigh, left forearm;
(d)   developed pain right knee after few days of accident, and
(e)   anxiety.
In submissions following the Panel’s report and directions document the claimant advises she was involved in a subsequent accident on 3 November 2019 (she made an error in advising Dr Rogers this accident was in early 2020). She made no claim and was not injured and sought no treatment.
The claimant was asked by the Panel to provide a chronology of treatment she has had since the accident for her injuries. She has provided this detail:
(a)   19 and 23 October and 6 November 2017 – Dr Prasad Lalita Hilltop medical practice;
(b)   18 January 2018 – Zeina Boutros Psychologist;
(c)   2 February 2018 – Dr Prasad – Hilltop;
(d)   9 March 2018 – Zeina Boutros ;
(e)   27 April 2018 – Zeina Boutros;
(f)    16 February 2019 – Dr Prasad Hilltop;
(g)   17 April 2020 – Dr Win Hilltop, and
(h)   16 October 2020 – Cumberland diagnostic imaging MRI.
The Panel notes that Ms Melhem has not included the dates of the 20 physiotherapy treatments she reported having after the accident as recorded by Assessor Home.
According to her chronology, the claimant has had no treatment for almost two years although she did have a diagnostic test (MRI) of her neck 18 months ago.
The Panel notes that payments made on claim by the insurer total approximately $260[15].
[15] The insurer’s list of payments is found at page 73 of the claimant’s bundle.
The claimant’s bundle includes referrals for physiotherapy (Tanya Garrett) and counselling (Ms Boutros) in both 2017 and 2020[16].
[16] Documents A3, A4 and A5 at pages 74 – 77 of the claimant’s bundle
The Hilltop Road Medical Centre records the following attendances since the accident[17].
[17] Document A7 in the claimant’s bundle. Not all of the detail of each of the attendances has been included.
(a)   19 October 2017 – pain neck, both shoulders, upper back, shocked and not sleeping;
(b)   23 October 2017 – pain both sides of neck, not able to sleep, upper back (left more than right), scapula, scared not driving much, anxiety. Bruising reported;
(c)   6 November 2017 – still has anxiety, Panadeine Forte causes GI upset, pain upper back more on left shoulder, developed pain right knee few days after accident, still not sleeping;
(d)   7, 10, 21, 24 November 2017 – unrelated attendances;
(e)   2 February 2018 – form for NRMA completed, having physio, seeing psychologist;
(f)    16 February 2018 – seen by physio, still has pain cervical, mid thoracic and left arm – complains pins and needles left hand – right knee – pain and stiffness in the back;
(g)   27 April 2018 – physio once a week, pain left shoulder, left side of neck, spasm mid back right knee pain comes and goes. Cervical spine not tender, shoulder not tender, shoulder movement full range of motion. Gets pain after doing some work, has seen psychologist;
(h)   6 May 2019 – unrelated attendance;
(i)    1 February 2020 – unrelated attendance, and
(j)    17 April 2020 – MVA ongoing back and neck pain, ongoing anxiety referrals to Tanya Garrett, Zeina Boutros, David Kalmar.
Records from Zeina Boutros[18] include handwritten notes with dates of 18 January, 9 February, 9 March 2018. Despite a referral in April 2020 there are no records of any treatment provided after 9 March 2018.
[18] Document AD2 in the portal.
No records have been provided from Ms Garrett or any other physiotherapist who may have provided treatment to the claimant.
In the MRI report of 16 October 2020[19] the history given to the radiologist was “MVA 18/10/2017. Pain C-Spine and pins and needles left hand”. The findings were of:
“shallow disc bulges at C3/4 and C5/6,
no canal stenosis or evidence of nerve impingement, and
an incidental right thyroid nodule.”

Medico-legal evidence

[19] Contained within document AD3 in the portal.

Dr Assem

Dr Mohamed Assem provided a report dated 27 April 2020 to the claimant’s solicitor[20]. Due to the Covid pandemic, the consultation was said to have proceeded by FaceTime.
[20] Document A8 at page 103 of the Claimant’s bundle.
Dr Assem took the following history from the claimant:
(a)   background – Ms Melhem was a team leader at a Mission employed on a permanent part-time basis working 35 hours per week on average. She took a week off work after the accident, then returned to light duties and has continued to work but reports difficulty with physical duties or prolonged sitting e.g. driving;
(b)   past medical history – Ms Melhem denied any previous musculoskeletal accident, injuries or complaints and no relevant conditions, and
(c)   history of injury – Ms Melhem reported a car turned right and collided with the right side of her vehicle, she was wearing a seatbelt and her right knee hit the dashboard. Her airbags deployed. The claimant consulted her doctor the next day with pain in her neck, both shoulders and upper back. She had bruising on her left forearm and right thigh. She was prescribed Panadeine Forte which she could not tolerate and had 18 sessions of physiotherapy and consulted a psychologist three times. Dr Assem notes “she has not significantly improved”.
Dr Assem records the following complaints:
(a)   pain in the left side of her neck, left upper trapezius and left shoulder;
(b)   about two weeks ago for no reason there was an exacerbation of her neck pain with radiation down the left arm. She used a sling for support and had pins and needles with numbness in her left hand;
(c)   she had pain more in the upper back than lower back and sitting aggravates this pain;
(d)   she reported pain more in the left shoulder than the right. She reported a cracking sensation in the left shoulder and symptoms worse with sustained overhead activities, and
(e)   her knee complaints were said to have improved, and the claimant is able to squat and kneel, but she has not returned to netball.
The Panel notes the examination was undertaken by FaceTime and that Dr Assem records:
(a)   neck (cervical spine) was tender over the upper trapezius and spinous process but there was no muscle guarding or spasm. There were some restrictions of movement observed and reflexes were symmetrically reduced, however power, tone and sensation were normal. Non-verifiable radicular symptoms were reported down the dorsal aspect of the left arm;
(b)   upper extremities – restricted range of motion in both shoulders due to pain from the neck and from left shoulder and coarse crepitus over the left shoulder and scapula was noted;
(c)   upper back (thoracic spine) – no tenderness on palpation and no muscle guarding or spasm otherwise there was a normal pain-free range of motion in this part of the spine, and
(d)   right knee – the claimant was not reporting any pain at the time of the assessment and “no tenderness on palpable”. Coarse crepitations were hears on the right knee compared to occasional crepitus on the left. There was a normal range of motion.
Dr Assem noted that the claimant had not had any investigations undertaken such as radiology or scans at the time he examined her.
Dr Assem diagnosed soft tissue injuries to the claimant’s neck, thoracic spine, left and right shoulder and right knee. He does not mention the claimant’s lower back. He considered the claimant’s “radicular symptoms” in the left arm required investigations and recommended an MRI scan and ultrasound of her left shoulder due to persistent pain and stiffness ‘associated with audible crepitations’.
He assessed the claimant’s whole person impairment at 16% in a separate report[21] with the following reasons:
(a)   cervical spine – 5% - neck pain and stiffness with asymmetry of movement and non-verifiable radicular symptoms in her left arm;
(b)   right upper limb - 0% - normal range of motion;
(c)   left upper limb – 2% due to slight restriction in shoulder flexion and abduction giving 3% upper limb impairment. In addition noting moderate constant crepitus in the glenohumeral joint and using AMA tables at pages 58 and 59 to calculate an additional 12% upper extremity impairment (20% as per table 19 for impairment of the glenohumeral joint which according to table 18 is 60% upper extremity impairment)[22], and
(d)   right knee – 2% - he accepts a direct injury occurred in the accident and notes intermittent discomfort and patellofemoral crepitations.
[21] Page 110 of the Claimant’s bundle.
[22]

Dr Rogers

Dr Tania Rogers provided a report to the insurer dated 26 November 2020[23] following a physical examination of the claimant in her rooms on 3 November 2020. Dr Rogers makes the following comments about Dr Assem’s assessment:
(a) there was no crepitus in the left shoulder when she examined Ms Melhem and she says that shoulder crepitus is an unusual finding and indicative of advanced osteoarthritis, and
(b) there was equal crepitus when the claimant’s knees were examined.
[23] The insurer’s report is found at page 38 of the claimant’s bundle of documents.
Dr Rogers had before her the MRI of the claimant’s spine dated 16 October 2020. Neither the scan nor the report were before Dr Assem or Assessor Home.
Dr Rogers records the following history:
(a)   a previous car accident in 2015 which was minor with no injury;
(b)   before the accident the claimant worked 30 hours a week as a case manager working with vulnerable children. She had a week off work and some time on light duties (reduced driving) and she now works 35 hours week having been promoted to team leader in August 2019;
(c)   no previous medical illness surgery or illnesses;
(d)   Ms Melhem was examined at the scene of the accident by Ambulance but not taken to hospital. She was driven home and felt she was in shock. At night she developed pain in the neck, back of the shoulders, lower back and right knee, and
(e)   the clinical records are documented and the gap in treatment from April 2018 to April 2020 was noted. The claimant explained she had 20 physiotherapy treatments but found it difficult to access more due to work.
Dr Rogers records the following complaints:
(a)   intermittent but daily neck pain and her neck feels heavy;
(b)   intermittent discomfort in the lower back when sitting or aggravated by the cold;
(c)   frequent left shoulder pain and clicking exacerbated by prolonged static postures or repetitive use of her arms. Sometimes she wears a sling for support as her left arm feels “numb and tingly”;
(d)   “intermittent right shoulder pain not as bad as the left”, and
(e)   intermittent sharp pain in the right knee but no neurological symptoms in the lower limbs.
Dr Rogers also took a history from the claimant of a rear end car accident earlier in 2020 which did not aggravate Ms Melhem’s injuries.
Dr Rogers expressed the opinion that the gap of treatment over a period of two years did not correspond to the claimant’s significant reported levels of pain. She diagnosed the following:
(a)   cervical spine – whiplash injury with some radiation to the trapezius on both sides. She considered there was no evidence of radiculopathy, disc injury or a torn tendon in the shoulders. She found no definitive diagnosis other than pain. She expressed the view that 50% of any problem was due to poor posture at work;
(b)   lumbar spine - minor soft tissue injury not involving any discs. Dr Rogers notes delayed onset reported in the documents and no mention of a back injury to the general practitioner (GP) for many months and no mention of it by Dr Assem;
(c)   right knee – while Dr Rogers accepts the injury, she is of the view it has resolved as there is no imaging, no recent mention in the GP’s records and a normal examination;
(d)   shoulders – Dr Rogers noted there is no referral for shoulder imaging in evidence and no evidence of a tendon tear. Dr Rogers considered any symptoms in the shoulders are referred from the whiplash (neck) injury, and
(e)   Dr Rogers also noted there was inconsistent ranges of motion.
In her WPI assessment, Dr Rogers was of the view there was no frank injury to the shoulders and any lower back or right knee injury has resolved. She found there was dysmetria of the spine resulting in 5% WPI.
In terms of the claimant’s psychological injury, there is a report from Dr Ben Teoh for the claimant[24] diagnosing a Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood and a WPI assessment of 15%.
[24] The report is dated 25 May 2020 and is document A9 found at page 112 of the claimant’s bundle.
There is also a report from Dr Rickard-Bell for the insurer[25]. He diagnosed a Post-Traumatic Stress Disorder in partial remission as well as a Chronic Pain Syndrome. He assessed Ms Melhem’s WPI at 5%.
[25] This report dated 21 September 2020 and is found at page 18 of the insurer’s bundle.

PROCEDURAL MATTERS

Assessor Home undertook an assessment of the following parts of Ms Melhem’s body:
(a)   cervical, thoracic and lumbar spine;
(b)   right shoulder,
(c)   left shoulder, and
(d)   right knee.
Following its first meeting, the Panel wrote to the parties noting that in the submissions in support of her application for review, the claimant had not raised any issues with regards to her thoracic spine assessment or the right shoulder assessment. The Panel advised the parties that it did propose to include those parts of the assessment in its further deliberations. The parties were invited to provide submissions in support of any objection as to the Panel adopting that course of action.
The parties were also advised that the Panel did not consider a re-examination of the claimant was required because the submissions lodged by the claimant did not dispute the relevant clinical findings made by Assessor Home in relation to the disputed injuries upon which he based his assessment.
The Panel directed the claimant to provide submissions by 17 January 2022 and the insurer by 31 January 2022. In the absence of submissions, the Panel advised it would assume no objection was taken to the panel proceedings as proposed.
The timetable for submissions was subsequently revised. The claimant provided additional information in response to the Panel’s request but no additional submissions on 7 February 2022 and the insurer advised the Panel by a message in the portal on 17 February 2022 that it did not intend to provide any additional submissions.
The Court of Appeal said in Sydney Trains v Batshon[26]:
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect”, but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[26] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Neither party has objected to the Panel’s proposal of an assessment on the papers. The submissions lodged by both parties do not raise any issue with the clinical findings of Assessor Home and the Panel considers his examination findings are clear and comprehensive. The Panel is of the view that no re-examination is necessary in order to finalise its assessment.

CONSIDERATION OF THE ISSUES

Thoracic spine and right shoulder

The Panel notes no objection was raised by either party to the limiting of the injuries to be assessed and therefore no further consideration of the right shoulder or thoracic injuries is required.
The Panel confirms the clinical findings of Assessor Home equate to a 0% WPI for each of those injuries.

Evaluation of the evidence

Both parties have put medico-legal evidence before the Panel. The Panel notes that Dr Assem’s examination of the claimant occurred by FaceTime. The Panel understands this to mean that the claimant was on a device such as a mobile phone or laptop in one location and Dr Assem was on his own device in another location.
The Panel has difficulty understanding how Dr Assem could have palpated the claimant’s neck, back and knee remotely or assessed joint crepitus by this means.
Assessor Home undertook an in-person assessment with the use of a goniometer which, the medical members of the Panel note, is a more accurate way to measure range of motion in the shoulders or knees.
The claimant argues that Assessor Home did not consider the evidence, including the evidence of Dr Assem and his findings on examination. The Panel has considered Dr Assem’s measurements and clinical findings but, due to the on-line nature of the examination considers the findings of Assessor Home more reliable.

In any event, the Panel notes that cl 1.21 of the Guidelines requires an Assessor to evaluate impairment on the day of the assessment. Assessor Home is not required to undertake an evaluation of the evidence placed before him, weigh up the evidence and make a determination based on that evidence. Medical Assessor Home undertook a face-to-face physical examination of the claimant and recorded his findings which have not been challenged by the parties.
The Panel is aware that the claimant was examined by Assessor Home 14 months after she was examined by Dr Assem and 7 months after she was examined by
Dr Rogers. The claimant may have had symptoms reported to Drs Assem and Rogers but which she was not experiencing at the time of the examination conducted by Assessor Home. The medical members of the Panel observe that, in their clinical experience soft tissue injuries such as those experienced by the claimant tend to improve over time. This would therefore explain the difference between the examination findings of the three respective assessments and which form the basis of the WPI assessments.

Neck injury

The Panel notes that the claimant argues that she should be assessed as DRE category II not I and that there is no suggestion she has radiculopathy and should be assessed as DRE III.
The Panel repeats the summary of symptoms from Table 7 of the Guidelines:
(a) neck pain or symptoms – DRE I, and
(b) neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II.
The Panel accepts that the claimant has neck pain which would, absent other findings attract a DRE I categorisation.
Assessor Home did not observe guarding or dysmetria at the time he examined the claimant. Does Ms Melhem have “non-verifiable radicular complaints” within the definition in Table 8? That definition requires:
(a)   symptoms - the Panel is satisfied the claimant does have symptoms in her left upper limb. Dr Assem had a history of a sudden exacerbation of neck pain with radiation down the left arm, pins and needles and numbness in the left hand. Dr Rogers had a report from the claimant of a tingly and numb arm. Ms Melhem reported to Assessor Home a heaviness in her arm and paraesthesia of the entire left hand;
(b)   these symptoms must “follow the distribution of a specific nerve root” - the nerve roots responsible for the arm and hand include C6, 7 and 8 (for the hand), C5 for the top of the arm and T1 and T2 under the arm[27]. The symptoms reported by Ms Melhem do not, in the view of the Panel, follow the distribution of any of these specific nerve roots or all of them combined, and
(c)   there must be no objective signs of nerve root dysfunction - the Panel notes Assessor Home’s unchallenged examination findings were that the claimant had, at the time she was examined by him no objective signs of nerve root dysfunction being normal sensation, normal power and normal reflexes.
[27] See for example Figure 46 of the AMA4 Guides.

The Panel has also considered the report of the claimant’s MRI which suggests shallow disc protrusions at C3/4 and C5/6 with no impingement or nerve root involvement in any event at these levels that could account for the claimant’s symptoms.
The Panel is not therefore satisfied that the claimant meets the criteria required to satisfy a DRE II impairment but that she has a DRE I impairment – 0%.

Lower back injury

The claimant asserts she should be categorised as having a DRE II WPI on the basis that she has ‘nerve specific’ back pain with signs of radiculopathy including continuous muscle guarding, non-uniform loss of range of motion and non-verifiable radicular complaints into the buttocks and lower extremities. The claimant appears to be arguing that these are two signs of radiculopathy.
The Panel notes that Assessor Home found the claimant sustained a soft tissue injury to her lower back in the accident. The parties have not raised any issue with causation however the Panel considers it significant that Dr Assem did not assess an impairment for a lower back injury because Ms Melhem did not complain about her lower (lumbar) spine. She did complain about upper back (thoracic) symptoms which Dr Assem assessed. Dr Rogers diagnosed a minor soft tissue injury to the lumbar spine.
There is no imaging undertaken of the claimant’s lumbar spine.
As with Ms Melhem’s neck, Assessor Home has documented his findings and the claimant has not raised any issue with those findings. Assessor Home has recorded there was no guarding, no dysmetria and no non-verifiable radicular symptoms. In fact, it appears that Assessor Home found no symptoms at all in the lower back other than reports of pain. These symptoms commenced a year after the accident according to the claimant’s evidence given to Assessor Home by Ms Melhem.
Assessor Home’s examination did not reveal any evidence of loss of asymmetry of reflexes, positive sciatic nerve root tension signs, muscle atrophy, muscle weakness or reproducible sensory loss which would lead to a finding of “radiculopathy” within the definition found in cl 1.138 of the Guidelines.
The Panel is not therefore satisfied that any lower back injury sustained by Ms Melhem in the accident has resulted in an impairment which should be categorised as anything other than DRE I – 0%.

Left shoulder

The claimant’s left shoulder range of motion assessment is not challenged and therefore the finding for the impairment of 2% should stand.
The Panel notes that while Dr Assem considered the claimant’s restricted movement in the shoulders were due to the injury to Ms Melhem’s neck, he went on to find soft tissue injuries to the left and right shoulder. The right shoulder assessment of 0% has not been challenged and is not being considered (and accords with Dr Assem’s finding). The left shoulder assessment of 2% WPI by Assessor Home also accords with the finding of Dr Assem and is based on a loss of range of motion.
The claimant says however that she should be awarded an additional impairment percentage for the crepitation in her “shoulder region” which Dr Assem assessed at 12% WPI.
The Panel notes that there are four joints in the “shoulder region”, the sternoclavicular joint, the acromioclavicular joint, the glenohumeral joint and the scapulothoracic joint. The Panel also notes that while tables 18 and 19 at page 58 and 59 of the AMA4 Guides provide a way to assess joint crepitations in various joints of the upper limb, the scapulothoracic junction in not one of them.
Assessor Home, who examined the claimant face to face in his rooms determined there were inconstant crepitations in Ms Melhem’s scapulothoracic joint. Dr Assem who examined the claimant remotely found crepitation in a different joint (the glenohumeral joint). The Panel has earlier found Dr Assem’s findings unreliable due to the manner in which he conducted his assessment (by FaceTime) and therefore the claimant relies on the unchallenged findings of Assessor Home and accepts the claimant had crepitation in her scapulothoracic joint when examined by Assessor Home.
The Panel repeats cl 1.23 of the Guidelines and observes that not all conditions or injuries result in an assessable impairment. The Panel is not satisfied that the claimant has an assessable impairment as a result of inconstant crepitations in her right scapulothoracic joint.

Right knee

Assessor Home was asked to assess Ms Melhem’s right knee as she said she may have banged her knee on the dashboard in the accident. The claimant complained to Assessor Home of right knee symptoms pain but no swelling, giving way or locking at the knee. Assessor Home diagnosed a soft tissue injury to the right knee with patella femoral contusion.
Assessor Home’s unchallenged examination findings are that the claimant had normal range of motion in both knees with no swelling and no signs of instability.
The only abnormality recorded by Assessor Home was patella-femoral crepitation in the left knee but not in the right. The Panel considered this could, in the absence of any other evidence, suggest a transposition error on the part of Assessor Home (he heard crepitations in the right knee but recorded left knee). However, the Panel notes that crepitations were heard in both the claimant’s injured right knee and her uninjured left knee by Drs Assem and Rogers.
The medical members of the Panel say that in their clinical experience, crepitations can vary over time and depend, amongst other things, upon the testing method administered by the examiner. It is therefore possible that Assessor Home witnessed crepitations in the left knee and none in the right.
While there are 13 methods of assessing lower limb impairment in chapter 3 of the AMA4 Guides, only one, “Arthritis” provides a method of assessing crepitus. Table 62 and the associated text requires there to be imaging and the determination of cartilage intervals and a comparison of those intervals to the norm. In Ms Melhem’s case there are no knee imaging studies which would enable the Panel to make that comparison and determine an impairment.
However, the note under table 62 suggests a maximum of 2% WPI could be attributed to Ms Melhem for her right knee impairment due to her history of a possible dashboard injury, complaints of patellofemoral pain and crepitation (if it was present). The Panel notes Dr Assem assessed 2% for the claimant’s right knee injury.
Bearing in mind the Panel’s other findings, the Panel is not of the view that the guiding principle of section 42 of the Personal Injury Commission Act 2020 would be served by conducting a re-examination of the claimant’s right knee to ascertain if there are crepitations present and to consider further whether Assessor Home has transposed his finding of crepitation and attributed it to the incorrect knee. If the Panel did examine the claimant’s right knee and found crepitations and was satisfied as to their link to an accident related injury the additional 2% WPI would not affect the ultimate result.

CONCLUSION

The Panel assessed the claimant’s WPI as a result of the injuries sustained in the accident based on the unchallenged examination findings of Assessor Home and its own interpretation of the AMA4 Guides and Guidelines as follows:
(a)   neck – 0%;
(b)   thoracic spine – 0%;
(c)   lower Back – 0%;
(d)   right shoulder – 0%;
(e)   left shoulder – 2%, and
(f)    right knee – 0%.
The Panel notes that an assessment of 0% WPI does not mean an injury did not occur or that the claimant has no symptoms arising from it but that, at the time of the assessment the injury and any symptoms arising from it do not give rise to an impairment that can be assessed within the confines of the AMA4 Guides and the Guidelines.

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Citations

Melhem v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 40

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127

Sydney Trains v Batshon [2021] NSWCA 143

[2022] NSWPICMP 40

3 March 2022