Melnichuk v QBE Insurance (Australia) Limited
[2024] NSWPICMP 798
•27 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Melnichuk v QBE Insurance (Australia) Limited [2024] NSWPICMP 798 |
| CLAIMANT: | Liana Melnichuk |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 27 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Cameron’s assessment of 4% whole person impairment (WPI) for spine, shoulders, leg and head injuries; Claimant had not referred lumbar spine for assessment but MA had assessed it as 0%; Panel determined lumbar spine would be re-examined and assessed; issue of causation due to pre-existing conditions; both MAs re-examined claimant; Panel satisfied claimant injured her cervical, thoracic and lumbar spines, head injury causing possible teeth injuries but not injury to the trigeminal nerve and other injuries now resolved; injury to cervical, thoracic and lumbar spine assessed as 0%; head and face had no assessable impairment; shoulders not directly injured but in accordance with Nguyen v Motor Accidents Authority of NSW and Anor, injury to neck causing restriction of movement in shoulders, range of motion method of assessment could not be used due to inconsistency so impairment assessed by use of an analogous condition; Held – degree of WPI 4%; certificate revoked due to different finding of causation of lumbar spine (although same WPI of 0%). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Cameron dated 2 May 2024. 2. Certifies that the degree of permanent impairment resulting from all of the injuries assessed by the Panel is 4% and therefore not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Liana Melnichuk was involved in a motor accident on 19 March 2021. A car turned in front of hers (she had a green light) and a collision occurred.
Ms Melnichuk says she was injured in the accident and made a claim for statutory benefits and then lump sum compensation against QBE, the third-party insurer of the vehicle that she says caused her accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with the damages claim and Ms Melnichuk referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 2 May 2024, Medical Assessor Cameron determined that Ms Melnichuk did not have a WPI of greater than 10% (he found a WPI of 4%).
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 19 June 2024, Ms Baba, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment, allowed the Review and convened a Review Panel to conduct it. On 19 July 2024 the President’s delegate convened a differently constituted Review Panel (the Panel) to conduct the Review.
The Panel notes that on 13 June 2024, Medical Assessor Smith declined to assess the claimant’s WPI from her psychiatric injuries on the basis that her condition would not be considered stabilised until nine months after “appropriate psychiatric treatment.”
LEGISLATIVE FRAMEWORK
General
Ms Melnichuk’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 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 2023 is $654,000.
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.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Schedule 2, 2(a) declares a medical assessment matter a dispute about the degree of permanent impairment of a person resulting from the injuries caused by the motor accident.
Division 7.5 of the MAI Act provides for the assessment of medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter and chapter 4, the nervous system chapter of the AMA 4 Guides are relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined the claimant on 19 April 2024 and issued his certificate on 2 May 2024. He confirms at [2][5] that he was asked to assess the following injuries:
(a) cervical spine (and thoracic spine) due to bulging discs at C4-5 and T1-2;
(b) both shoulders – chronic pain, numbness and restricted movement;
(c) legs – numbness cramping, ache, pins and needles in right leg with paraesthesia, and
(d) head – numbness and swelling to the face, pins and needles in the face with paraesthesia, deep ache to the back of the head and severe headaches.
[5][5] The numbers in square brackets correspond to the sections of the Medical Assessor’s decision.
The claimant reported to Medical Assessor Cameron at [9] that she was unclear about some aspects of the accident and that she “lost her vision for a time after the accident.” The claimant said she was taken by ambulance to Bankstown Hospital but she left before she was properly seen as she was worried about her mother and her cats.
The Medical Assessor documents at [10] that the claimant says she broke two teeth in her lower right jaw and that after the accident she had no menstrual periods. She has attended Bankstown Hospital three times and has also been assessed at St George Hospital since the accident
Medical Assessor Cameron records at [12] the claimant’s current symptoms including pain in the neck, headaches, numbness in the right arm and right leg (with cramps in the right leg), pins and needles in her face on the right side and fingers in her right hand, left shoulder pain, continued right sided visual problems.
On examination, Medical Assessor Cameron documents at [14]:
(a) no evidence of cognitive impairment but that the claimant was distressed;
(b) right sided facial numbness but he notes the movement of the right side of the claimant’s face was normal;
(c) marked and reduced range of motion in the neck (symmetrical) with no spasm, guarding or non-verifiable radicular complains present and no positive nerve root tension signs;
(d) inconsistent movement in the shoulders due to variable pain but a full range of motion at other joints of the arms and no neurological abnormality;
(e) thoracic spine motion was reduced but symmetrically so and there was no spasm, guarding or non-verifiable radicular complaints present;
(f) lumbar spine – there was reduction of movement in symmetrical fashion with no spasm, guarding or non-verifiable radicular complaints present, and nerve root tension signs were negative, and
(g) lower limb joints were normal and there was no neurological abnormality.
After reviewing the medical evidence, Medical Assessor Cameron diagnoses at [18] multiple soft tissue injuries and suggests there are “significant ongoing psychological symptoms”. He says there is no evidence that the claimant sustained an injury to her lumbar spine although she has developed symptoms that may be related to a lumbar spine condition. He noted at [21] the symptoms in the legs and face were symptoms but there was no evidence of a specific injury to the legs or head in the accident.
Medical Assessor Cameron assessed at [23] the injury to the cervical spine at diagnosis-related estimate (DRE) I (0% WPI) on the basis the criteria in DRE II were not met. While he says “the Nguyen principle” does not apply, he assessed the left and right shoulder soft tissue injury by way of analogy at 2% for each shoulder.
The total impairment assessed was 4%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant submits generally at [11][6] that the claimant’s physical injuries “were not sufficiently examined or addressed.”
[6] The numbers in square brackets in this section of the reasons corresponds to the paragraph number of the claimant’s or insurer’s submissions.
The claimant says at [15] that her lumbar spine should have been assessed as it was referred to in the documents. She notes at [17] radiology from March 2023 which showed a disc protrusion impinging the L4 nerve root. The claimant also says insufficient consideration was given to the disc bulge at C4/5 region and her complaints of cervical spine and neck pain.
The claimant then submits from [19] that Medical Assessor Cameron erred in his assessment of the claimant’s pre-existing injury. The claimant acknowledges at [23] that she had a past history of back pain but that she never complained of neurological symptoms (radiating spasms and cramps) before. She also notes her complaints of lower limb symptoms were due to her back pain. She says cl 6.31 was not applied correctly in respect of the pre-accident impairment assessment.
Insurer’s submissions
The insurer referred from [6] to the scope of the medical dispute and cites at [9] and [10] the decision of Mandoukos v Allianz Australia Insurance Limited.[7]
[7][7] [2024] NSWCA 71.
The insurer noted from [11] the case of Dunbar v Allianz Australia Insurance Limited[8] which suggests that an Assessor is not required to identify everything considered in their reasons or explain what evidence was or was not accepted.
[8] [2015] NSWSC 119.
The insurer then deals with the claimant’s first ground of review (exclusion of the lumbar spine) and says at [19] the claimant did not list the lumbar spine in the injuries to be assessed. The claimant said at [21] while he did not have to assess the lumbar spine the Medical Assessor did so and concluded that “injury” was not caused by the accident. The insurer lists the evidence referred to by Medical Assessor Cameron and his findings about the radiology and his diagnosis and views on causation.
Finally, the insurer says from [31] that as Medical Assessor Cameron found there was no injury to the lumbar spine there was no need to consider any apportionment and deduction in respect of it.
Procedural matters
On 21 June 2024, the previous Panel issued directions to the parties. The claimant was to upload a bundle of documents by 29 July 2024 and the insurer was to lodge theirs by 5 August 2024. The insurer lodged a joint bundle on 2 August 2024 comprising over 800 pages of documents.
The Panel met on 15 August 2024 and reported to the parties. The Panel noted the injuries assessed by Medical Assessor Cameron and advised the parties that we would be assessing:
(a) the claimant’s cervical spine;
(b) the claimant’s thoracic spine;
(c) the claimant’s lumbar spine;
(d) whether there was an injury to both shoulders – that is a frank injury to the shoulders or whether any impairment to the upper limbs (including the shoulders) results from any cervical spine injury;
(e) whether there was an injury to the legs – that is a frank injury to the legs or whether any impairment to the lower limbs (including the legs) results from any lumbar spine injury, and
(f) head – did the claimant sustain an injury to the head resulting in symptoms of numbness and swelling to the face, pins and needles in the face with paraesthesia, deep ache to the back of the head and severe headaches.
The Panel requested copies of some additional documents, and a complete set of Dr Tcherkas’ records properly dated.
The insurer responded advising:
(a) QBE made enquiries and was advised Ms Fowler (physiotherapist) had left the practice and the current owner of the practice told QBE he does not possess Ms Fowler’s notes;
(b) QBE advised the claimant had been asked to execute authorities for the records of Mr Slanikov and Mr Kategiannis, but the claimant had not responded, and the notes had not been obtained;
(c) a complete and dated copy of Dr Tcherkas’ notes have been provided, and
(d) a copy of the claim form was provided.
On 12 September 2024, the claimant provided her bundle of documents, and the Panel was advised “the claimant’s previous solicitors did not qualify any doctors in the period they retained instructions.”
On 3 October 2024, the claimant provided a bundle of documents comprising dated notes from Dr Tcherkas and Mr Kategiannis Chiropractor. The claimant’s solicitor advised “despite exhaustive enquiries, the clinical notes and records of Michael Slanikov, Physiotherapist and Yvonne Fowler, Physiotherapist cannot be obtained”.
REVIEW OF THE EVIDENCE
General observations
The insurer has provided a bundle of over 800 pages. The claimant has provided an additional bundle of documents comprising 176 pages.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[9] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. … The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[9] [2022] NSWSC 1079.
The Panel has considered all of the documents but has included in this review only those documents the Panel considers relevant to the issues in dispute.
Claim form and claim documents
The claimant’s application for personal injury benefits was signed as true and correct and dated 26 March 2021. She denied any previous motor accident claims and denied any “illness or injury affecting the same or similar parts of [her] body at the time of the accident.”
The claimant listed the following injuries:
(a) neck;
(b) back;
(c) chest;
(d) both shoulders;
(e) both arms;
(f) both legs and knees;
(g) head, face and teeth, and
(h) psychological injury.
The claimant says in the claim form she had not taken time off work but did not provide any details as to what her work was, who she worked for or how much she was earning.
The claimant has provided a document headed “schedule of injuries and disabilities” attached to the original application form.[10] This lists injuries to the neck, back, chest, both shoulder, both arms, both legs and knees, head, face and teeth and a psychological injury.
[10] Page 17 of the joint bundle.
The document lists the following “disabilities”:
(a) left sided hydronephrosis due to pelvicureteric junction obstruction;
(b) tenderness in the central abdomen;
(c) pain and restriction of movement to neck;
(d) bulging at C4-C5 disc;
(e) bone marrow oedema in the posterior arches of the C1 vertebra;
(f) pain when breathing;
(g) pain and restriction of movement to lower back;
(h) tenderness in the spine;
(i) tightness in upper back;
(j) bulging at T1-T2 disc;
(k) left sided anterior chest pain;
(l) chronic pain in both shoulders;
(m) restricted movement in right shoulder due to pain;
(n) frozen shoulder;
(o) numbness in right shoulder;
(p) impoverished right arm movement;
(q) chronic pain in both arms;
(r) numbness in right arm extending to hand;
(s) restricted movement in both hands;
(t) tight and piercing pain in both hands;
(u) pins-and-needles in right arm associated with paraesthesia;
(v) walking with antalgic gait;
(w) numbness, cramping and deep ache in buttocks extending to legs;
(x) cramping in right leg;
(y) pins-and-needles in right leg associated with paraesthesia;
(z) numbness and swelling to the face;
(aa) pins-and-needles in right face associated with paraesthesia
(bb) deep ache to the back of her head;
(cc) severe headaches;
(dd) loss of hair, and
(ee) post-traumatic stress disorder, depression, insomnia, episodes of crying and distress, myokymia caused by anxiety, sleep disruption, impaired concentration.
The claimant relies on a “statement” which is an email sent to her solicitor. It is not signed but was sent on 10 May 2024. It includes the following information:
(a) she vomited when she opened the car door after the accident, and she lost her vision;
(b) the airbags hit her face, and her face hurt after the accident;
(c) she couldn’t walk after the accident and her stomach hurt;
(d) when the ambulance came, she could not feel her face and right shoulder and found it difficult to walk because of her stomach;
(e) when the ambulance came, she lost her vision and again when she was in hospital. She told ambulance her stomach was hurting, and she could not feel her face and could not see them because her vision was lost;
(f) she told the Bankstown Hospital nurses twice that she lost her vision. She was told she had to stay in hospital, but she couldn’t leave her mother, and her friends collected her;
(g) when she arrived home her teeth were missing, and she found them in the car;
(h) the day and all night “my entire body was in pain”. She had bruises with haematoma. She took Endone;
(i) she fell asleep at 11.00pm but she is not sure, then her mother woke her because she was screaming and saw the car accident in her dream. She did not sleep at all again, she was stressed, nervous and started vomiting and lost her vision again;
(j) the next day she went back to Bankstown Hospital with a friend, and they saw her bruises and the nurses told her to wait for a doctor, but Ms Melnichuk left the hospital;
(k) two days later she returned to the hospital because of pain but again Bankstown told her she would have to wait so she left again;
(l) she went to Canterbury Hospital two or three times;
(m) she went to St George Hospital two or three times;
(n) only her general practitioner (GP) and her psychologist have tried helping her;
(o) she lost her vision six times at home after the car accident, twice in the second year and twice the third year. She was having strong headaches and neck pain;
(p) over three years she has been having lower back pain and gets spasms and cramps from her lower back down the leg on her right side and she needs “help from people to stand”;
(q) on the “femerol leg” she gets spasms and cramps that hurt and make her want to scream. Her mother and her mother’s carers have witnessed this;
(r) sometimes she lays down and cannot move;
(s) she has headaches nearly every day mostly in the evenings and it is hard for her to get to sleep;
(t) she had dreams of the accident;
(u) her right-side eye vision is not good, and she has new glasses;
(v) she gets tired easily;
(w) she goes to the shops with her friends and her leg starts spasming and cramping and she cannot move it, and
(x) she does not drive a lot because it makes her sick and gives her anxiety.
Treating medical records and reports
Pre-accident GP notes
The claimant’s pre-accident records from MyHealth Rockdale include the following entries[11]:
[11] Page 164 of the joint bundle.
(a) 17 January 2014 – insomnia and weight 60kg;
(b) 15 September 2015 – right earache, hearing issues and throat pain, and weight 71kg;
(c) 22 February 2016 – mental health plan and weight 68kg;
(d) 29 February 2016 – carer’s fatigue as she looks after her mother who is old now and also full-time work;
(e) 16 August 2016 – the claimant was referred to Ms Mylakh[12] a psychologist for treatment of the claimant’s depression;
[12] Page 327 of the My Health bundle.
(f) 30 August 2016 – joint pain knees and lower legs, and weight 71kg;
(g) 18 October 2016 – mental health plan, referral to a psychologist;
(h) 26 October 2016 – tiredness, stress, insomnia looking after mother who had a fall;
(i) 20 December 2016 – low back pain, referral to Mr Slanikov, physiotherapist;
(j) 16 January 2017 – X-ray for both knees in order to explain pain;
(k) 24 March 2017 – abdominal and breast pain, mental health care plan, weight 67kg, script for Panadeine Forte and referral to Mr Salnikov given;
(l) 26 May and 19 June 2017 mental health care plan, nightmares, insomnia. Headaches and pains around her body, Panadeine Forte prescribed;
(m) 30 June 2017 the claimant received a psychological injury when she says she was abused by staff and a loud an angry officer of Housing NSW;
(n) 7 July 2017 – involuntary contractions of the right eye; upset, insomnia, anxiety and headaches. The contractions were noted. Weight – 70kg – CT brain, X-ray knees, Panadeine Forte and Temaze given;
(o) 10 July 2017 – the claimant had a CT scan of her brain due to “headaches for investigation”. There was no abnormality reported;
(p) 17 July 2017 – headaches, stress / insomnia, family issues, referral to ear nose and throat (ENT) Professor Havas;
(q) Professor Havas wrote to Dr Tcherkas on 21 July 2017. He refers to the claimant’s “long history of headache and facial pain.” He found chronic changes in her left maxillary antrum and a mass which he wished to remove surgically and biopsied;
(r) 24 July 2017 – the claimant reported she did not want the ENT, Dr H (presumably Professor Havas) wanted another one (St George Hospital) and a referral to Dr Greenburg was given;
(s) 11 October 2017 – stressed looking after mother, low back pain, allied health to assist, left breast pain, mastitis for consideration referral to Mr Salnikov, physio;
(t) 1 November 2017 – the claimant was discharged from Canterbury Hospital having attended three days after a fall onto her left hand. There was swelling and radiology was performed with no acute fractures or dislocations. She was referred to a hand surgeon due to a congenital bone formation in the hand;
(u) 3 November 2017 – left arm damage referral for x-ray and Panadeine Forte was prescribed;
(v) 8 May 2018 – discharge self from Canterbury Hospital for obstetric and gynaecological issue. The claimant was concerned about weight loss and weighed 66kg. A letter to Ms Fowler was provided for physiotherapy;
(w) 4 June 2018 – long periods, pain, stress family related;
(x) 1 March 2019 – stress due to pelvic pain and low leg pain. A referral to Mr Salnikov was given;
(y) 16 May 2019 – weight 68kg;
(z) 3 June 2019 – a report from Mr Abouhaidar physiotherapist documents therapy being provided for treatment under a chronic disease management program for neck and upper trapezius stiffness, mainly on the left side;
(aa) 5 August 2019 – hair loss advised, stress about mother’s health;
(bb) 23 September 2019 – kidney stone and pain – referral Mr Salnikov and Panadeine Forte was prescribed;
(cc) 14 February 2020 – stressed in relation to family issues – weight 72kg referral to Mr Salnikov;
(dd) 31 April 2020 the claimant wrote a letter and signed it concerning the landlord of her apartment. She claims verbal abuse “affected my heart”. She refers to her many problems and that her cat was harmed. She has started shaking and vomited and called the police and had stabbing pains in the heart;
(ee) 4 May 2020 – anxiety, issues with landlord, bad sleep, shaking hands, sweating - referral and Temaze prescribed;
(ff) 13 May 2020 – stressed, housing issues advised for care, mental health plan referral Ms Meylakh, Temaze and Valerian prescribed;
(gg) 14 May 2020 – feeling better, under care of psychologist, stress improved;
(hh) 19 May 2020 – stressed with management of housing issues, report of psychologist available and discussed;
(ii) 29 May 2020 – complaints of right face and external ear canal is inflamed;
(jj) 1 June 2020 letter Ms Meylakh to GP– seeing her fortnightly – adjustment disorder – mind blanks, sleep disturbance, irritability, worry, easily brought to tears, catastrophising, hopelessness helplessness etc; Tests administered severe depression and moderately severe anxiety. Exacerbations of mental and medical conditions for two years;
(kk) 10 June 2020 – less stress, feels better, for her depression management, content of her psychologist’s letter discussed, weight 68kgkg;
(ll) 30 June 2020 and 7 July 2020, stress related to carer’s duties and housing issues;
(mm) 27 October 2020 – painful periods Panadeine Forte and Ibuprofen prescribed and letter to Mr Salnikov;
(nn) 19 December 2020 – stressed, and
(oo) 7 January 2021 – complains of stress related to flooding and poor housing Mr Salnikov letter printed and a Medicare funded five sessions of physiotherapy approved.
Care plans
A number of care plans are found within the records of Dr Tcherkas (and My Health Rockdale). There are multiple copies of most of them and many of them are signed by the patient (in this case Ms Melnichuk) noting her agreement with the care plan.
In a care plan of 22 February 2016[13] the claimant was reported as overweight with back complaints. Involved in care for her spinal pain were:
(a) Mr Salnikov, physiotherapist;
(b) Mr Kategiannis chiropractor, and
(c) Ms Fowler physiotherapist.
[13] Page 309 of the bundle of documents from My Health Rockdale (the My Health bundle).
The goal of the health care plan was said to be “pain relief and mobility improvement of her lower back.”
There is a similar care plan dated 16 August 2016 which also includes an osteopath Mr Baniotis in the treatment of the lower back. The same goals are noted. Similar care plans were completed on 20 December 2016[14] and 24 March 2017.[15]
[14] Page 334 of the My Health bundle.
[15] Page 346 of the My Health bundle.
The care plan of 19 June 2017[16] notes issues with insomnia, Ms Melnichuk being overweight and back complaints and involved in the claimant’s care were Mr Salnikov, Ms Fowler and Mr Kategiannis. The goals were stated to both relieve pain and improve mobility in the lower back. Another care plan dated 11 October 2017 was in similar terms.[17]
[16] Page 364 of the My Health bundle.
[17] Page 416 of the My Health bundle.
A care plan dated 8 May 2018[18] lists current health needs and problems as being overweight, insomnia, ovarian cysts, back complaints spinal pain, neck and shoulder pain and middle back pain and the care providers involved in the plan were listed as Mr Salnikov, Ms Fowler and Ms Beliak a naturopath. The goals were to relieve pain and improve mobility in the lower back. A care plan was completed on 21 August 2018[19] by Dr Morozova but only the lower back is specifically mentioned.
[18] Page 439 of the My Health bundle.
[19] Page 468 of the My Health bundle.
A care plan dated 1 March 2019[20] includes issues of back pain, weight issues and kidney stones. Mr Salnikov was part of the team to assist with the lower back condition. Dr Tcherkas completed another care plan on 23 September 2019.[21] It is in similar terms mentioning the lower back with goals set to reduce pain and improve mobility. Left kidney and kidney stones are mentioned along with Obstructive Sleep Apnoea (OSA). Other health care professionals are noted to be involved in that aspect of the claimant’s care.
[20] Page 570 of the My Health bundle.
[21] Page 521 of the My Health bundle.
A care plan was completed on 30 March 2020[22] for OSA, kidney stones and left kidney requiring contribution from a dietician and pharmacologist. The claimant’s back complaints in particular low back pain were listed with Ms Hijazi, podiatrist and Mr Salnikov involved in Ms Melnichuk’s care. A similar care plan was completed on 27 October 2020[23] the goals were stated as reducing pain and improving mobility of the lower back.
[22] Page 578 of the My Health bundle.
[23] Page 623 of the My Health bundle.
The care plans developed for the claimant by Dr Tcherkas from 2016 have indicated Mr Kategiannis may have been involved in the claimant’s care for her pre-accident physical condition including a lower back condition. The claimant has provided notes from Mr Kategiannis which involve a care plan dated 27 October 2021 (for physiotherapy) and details of one (possibly two) attendances in 2021. The accident was mentioned but no earlier records were provided.
Ms Fowler has also been involved in the claimant’s pre-accident care. She has allegedly left her physiotherapy practice and no notes from her have been obtained.
Finally, Mr Salnikov has also apparently been involved in the claimant’s pre-accident physiotherapy care in respect of a lower back condition and records from him have not been provided.
Ambulance and hospital
The ambulance report[24] notes the claimant was wearing a seatbelt and the front airbags deployed. The claimant denied a loss of consciousness, cervical or chest pain. She was breathing and had a Glasgow Coma Scale (GCS) of 15. Ms Melnichuk complained of tingling and pain to the right side of her face from the airbag, she developed blurred vision on the way to the hospital and vomited. She had a bruise to her right thumb and complained of pain with reduced movement and grip strength.
[24] Page 112 of the joint bundle.
Bankstown Hospital records from the day of the accident[25] note that the claimant was reviewed after scans and X-rays were done and that she was advised she needed to be admitted “but the patient refused to stay and preferred to leave for family issues.” It was noted that the claimant was dizzy with blurring of vision which had resolved before she got to the hospital. The claimant complained of right thumb and right and left forearm pain, central abdominal pain but no weakness of limbs and she had a normal gait.
[25] Page 135 of the joint bundle.
The discharge referral for Bankstown Lidcombe Hospital dated 26 March 2021[26] says that the claimant attended on that day “with headache and neck pain, one week following a motor vehicle accident.” No acute changes were seen on the CT scan and previous images were reviewed. She was discharged the next day.
[26] Page 19 of the joint bundle and page 58 of the claimant’s bundle. There is handwriting on the discharge summary in the bundle (page 19). This handwriting has not been considered by the Panel as the author of the handwritten notations has not been identified.
The second page of the discharge document refers to “ongoing neck pain and back pain, also headache ?episodes of visual changes.” Also noted is right arm weakness limited by pain, “?reduced light touch sensation right upper limb, all dermatomes, reflexes equal.” Bruising over chest and abdomen was noted as fading. The lower limbs were noted as having “equal power” and the claimant mobilised into the department.
A CT of the claimant’s brain was done. There was no evidence of an intracranial haemorrhage or subdural haematoma. There was a long-standing lesion near a left molar tooth into the left maxillary sinus. A CT of the abdomen was done reporting no acute injury. A CT scan of the cervical spine was done reporting no acute skeletal cervical spine injury.
An X-ray of the right hand, wrist and forearm was done showing no abnormality. An X-ray of the chest was reported as normal.
GP notes post-accident
The claimant first attended on 22 March 2021 three days after the car accident which was said to have occurred at high speed (over 60km). Ms Melnichuk reported that she vomited twice, lost her vision for three minutes, had a possible loss of consciousness and was not able to move. She was said to be very sick and in pain with right sided numbness. She had a big bruise over her low abdomen, right forearm, left breast and chest and there was left neck paravertebral spasm. Her right low jaw needed dental work up due to an issue with an implant. Panadeine Forte was prescribed.
On 25 March 2021 a request for an MRI was provided. On 30 March 2021 the claimant complained of pain, which was not improving, and her neck was assessed with “radiculopathy” mentioned and her right shoulder was in pain.
Dr Tcherkas completed a certificate of capacity dated 25 March 2021.[27] He said he had first examined the claimant on 19 March 2021 and he diagnosed “multiple injuries – neck, right shoulder, chest, head”. He said there were no pre-existing factors. His management plan was for an MRI and X-rays of the neck and head as a priority.
[27] Page 71 of the claimant’s bundle.
On 7 April 2021 a referral to Dr Prosser, neurologist was provided due to the claimant’s inability to move her head with restricted neck movement. Her “upper nose was said to be damaged”. Her neck pain and headaches were not improving and her breathing was painful. Panadeine Forte and Temaze was provided. A handwritten note was written on the referral asking Dr Prosser to find time to see the claimant.
On 8 April 2021 Dr Prosser wrote to Dr Tcherkas advising that the claimant was offered an appointment on 22 July 2022 but chose not to proceed with it.
Dr Tcherkas referred the claimant to Emergency at St George Hospital on 9 April 2021 for neurological review, Dr Cordato, neurologist and Dr Cox, pain specialist on 20 April 2021.[28] On 20 April 2021 the claimant was also referred to Ms Candalepas, psychologist. On 30 April 2021, Dr Tcherkas advised QBE of these referrals and sought approval for treatment.
[28] Pages 74-82 of the claimant’s bundle.
The St George hospital notes from 10 April 2021[29] state the presenting complaint was “pain, back”. The history suggested she had three weeks of ongoing right sided body pain after the car accident and that “she has had ongoing right entire body sided pain, weakness and intermittent decreased sensation; the sensation change is not a constant change.” She was said to be taking Endone and Panadeine Forte every three hours.
[29] Page 120 of the joint bundle.
Dr Tcherkas wrote a referral to Dr Schwartz on 31 May 2021[30] seeking opinion and management of possible ulnar and radial nerve damage from the car accident. He gave a list of various problems including kidney stones since 2011, insomnia, depression and anxiety in 2014, 2016 and 2017, left maxillary sinus issues in July 2017, left forearm damage in October 2017, further kidney stones in 2018 and 2019.
[30] Page 61 of the joint bundle.
There is a report from Mina Candalepas dated 4 May 2020[31] following two one-hour assessments on 28 and 30 April 2021. Ms Melnichuk reported pain, trauma, anxiety and depression associated with an accident.
[31] Page 47 of the claimant’s bundle. It would appear there is a mistake as to the date as the report refers to dated in April 2021. The Panel is proceeding on the basis the date of this report is 4 May 2021.
The claimant reported acute pain and numbness to her head, face and the right side of her body. The claimant said she lost consciousness and vision for a number of seconds thereafter developed an inability to walk, severe vomiting and dizziness.
Ms Melnichuk reported at [2.6] of the report that “she had never previously consulted with a psychologist or a psychiatrist.” The claimant would not complete the psychometric tests “given her medical condition”. There was no evidence of psychosis or thought disorder and her symptoms were consistent with post-traumatic stress disorder.
Ms Candalepas also referred to a “blow to the head”, and the development of acute pain and numbness to her head and face, losing consciousness and vomiting. Ms Candalepas suspected a possible traumatic brain injury and recommended a referral to a psychiatrist who specialises in neuropsychiatry and identified Dr Keith Chee and Dr Patricia Jungfer, both psychiatrists.
On 29 May 2021 Dr Schwartz, neurologist saw the claimant who complained of symptoms over the whole of her right side. “Liana reassures me that she suffered no significant medical issues prior to this accident. Liana generally enjoyed good health … and is on no regular medication …” Clinical examination showed an “anxious lady not moving her right arm much and walking with an antalgic gait. Could not examine the arm”. He considered there may be a post-traumatic stress disorder with musculoskeletal injuries but with no clear-cut objective evidence demonstrating any significant issues. He thought her eyelid twitching was related.
Dr Prosser, neurologist reported to the claimant’s GP on 8 July 2021. She had a history of hypertension, kidney stones, significant depression and anxiety. She took a consistent history of the accident and observed the denial of loss of consciousness in the hospital records but multiple mentions of a loss of consciousness and vomiting and vision loss afterwards. The claimant’s current complaints were said to be right shoulder and elbow pain and a history of a left shoulder frozen.
The claimant’s neck was not stiff, and she said:
“Though even light touch anywhere on her body elicited exaggerated startle and howls of pain. Chronic pain but weakness is very difficult to assess. I do not think there is any clear evidence of a neurologic issue.”
On 9 July 2021, Ms Candalepas wrote to Dr Tcherkas noting that she had the two initial attendances and then five treatment sessions between 10 May and 9 July 2021. She noted the claimant had significant difficulties managing her pain which was impacting on her mood, and she had a number of hospital admissions for flare ups. She recommended a referral to a psychiatrist with interest in pain management and recommended Dr Noore.
On 14 July 2021, Dr Schwartz wrote that the claimant had unremarkable neurophysiological studies. No evidence of nerve entrapment and minor chronic partial denervation in C6-7 distribution. He recommended a CT SPECT bone scan, and he suggested referral to a pain specialist, rheumatologist and ongoing psychological help.
On 9 August 2021, an Allied Health Recovery Request (AHRR) for psychological treatment documented a number of pain related symptoms including in the back, headaches, neck and shoulder and buttocks. The claimant also reported that menstruation had ceased since the accident. The claimant was said to have continued to drive and take medication before she drove.
On 11 August 2021 the claimant was referred to Dr Yalizis,[32] shoulder surgeon for management of her left shoulder, right shoulder and right elbow pain after the car accident.
[32] Page 107 of the claimant’s bundle.
On 13 August 2021 the claimant saw Belmore Eyecare for an eye test due to “decline in vision” and it was noted that her myopia and astigmatism had deteriorated since her last visit in March 2020. A further report dated 19 April 2022[33] has a report of pain on the right side, twitching of her right eyelid and forehead and headache and “self-reported deterioration”. The claimant vision had dropped from 6/6 to 6/7.5 in the right eye since August 2021.
[33] Page 130 of the claimant’s bundle.
Dr Yalizis, orthopaedic surgeon saw the claimant on 7 September 2021. He has a history of a head on collision and increasing pain in both shoulders. Ms Melnichuk was unable to tolerate any passive range of motion on either side and he was concerned about bilateral frozen shoulders and requested an MRI.
Dr Noore, psychiatrist and pain physician examined the claimant and reported on 22 October 2021. He interviewed the claimant with a Russian interpreter. He noted multisite pain including neck, shoulders, right elbow, lower back and right leg. He noted she was immaculately dressed and groomed. There were pain behaviours in relation to her left and right arm movements. He diagnosed multisite pain the principle “underlying mechanism is post-traumatic central sensitisation”, a high level of anxiety and depression, physical and psychological deconditioning.
He recommended physiotherapy and intensive pain management (with Regain) over eight weeks for two full days including medical, psychological and physiotherapy.
On 27 October 2021, Dr Schwartz review of the claimant again due to persistent neck and right arm pain. He again requested the bone scan be done. It was done on 4 November 2021. On 10 November 2021 he wrote to the GP advising there was no “clear cut primary neurological cause” of the claimant symptoms and returned her to the GP’s care (and pain management).
Dr Yalizis wrote to the GP on 2 November 2021. He had the MRIs with no evidence of adhesive capsulitis and no evidence of any other structural abnormality in each shoulder. He said this was “good because she does not need surgery. Bad because there is no clear explanation for her symptoms”.
Dr Kategiannis wrote to the GP in November 2021 concerning back and upper middle thoracic pain since the accident.
The report of Dr Noore dated 27 April 2022 to QBE notes:
(a) the pain management program commenced 18 January 2022 and concluded on 9 March 2022;
(b) the claimant’s attendances for the psychological component “was irregular and inconsistent.” The claimant said this was due to high levels of stress and managing a house renovation;
(c) she developed fear avoidance beliefs and behaviours;
(d) she tended to catastrophise her pain condition;
(e) she was offered intake into the next group but refused, and
(f) “she should be encouraged to improve her physical functioning by participating in active physiotherapy or exercise physiology.”
The physical component was said to be also poorly attended with the claimant frequently dropping out of sessions due to personal matters or carer’s responsibilities.
Dr Tcherkas completed a certificate of fitness for the claimant on 24 March 2023. He notes the claimant’s occupation as “accountant” and provides a very lengthy diagnosis of a multitude of injuries and symptoms starting with “severe neurological damage / whiplash with numbness over her right shoulder, arm and leg above the knee, right face, numb low back pain.” He notes the claimant had been referred to Dr Yalizis, shoulder surgeon and Dr Cordato, neurologist, and for physiotherapy and psychological counselling. He certified the claimant unfit from 24 March to 24 April 2023.
On 8 April 2024 Ms Candalepas wrote to Housing Pathways[34] seeking assistance for the claimant in finding a new home as her cats had been poisoned (she was operating a cat rescue service – not for profit) and she was having difficulties with her neighbours.[35] Police had been involved and the claimant was having panic attacks if she went outside.
[34] Page 155 of the claimant’s bundle.
[35] Page 155 of the claimant’s bundle.
Dr Tcherkas wrote a letter “to whom it may concern” dated 8 May 2024 following receipt of the Medical Assessor Cameron’s decision. He said, “I believe that the patient suffers from severe disabilities related to her injuries and would be happy to respond to the questions related to her health state if needed.”
18 June 2024 another letter was sent to Housing Pathways from Ms Candalepas[36] in which the claimant’s psychologist documents reports of an escalation of verbal threats, malicious damage and killing another of her pet cats.
[36] Page 168 of the claimant’s bundle.
Radiology
The claimant had a CT scan of her brain at Bankstown on 21 March 2021 due to right-sided weakness. There was no evidence reported of any intracranial haemorrhage or haematoma.
An MRI of the right shoulder on 15 April 2021[37] reported no rotator cuff tear and mild tendinosis and bursitis. The MRI of the left shoulder on 11 October 2021[38] reported low grade bursitis and tendinosis with no rotator cuff tear, labral tear or cyst. A later MRI of the right shoulder on 12 October 2021[39] identified mild acromioclavicular joint arthrosis, low grade bursitis and tendinosis but no rotator cuff tear.
[37] Page 155 of the claimant’s bundle.
[38] Page 120 of the claimant’s bundle.
[39] Page 121 of the claimant bundle.
A bone scan of 4 November 2021 revealed active arthritis at T1/2, none in the cervical spine, minor arthritic uptake in the left AC joint and mild uptake in the hands.
The CT of the lumbosacral spine on 16 March 2023[40] reported degenerative disease with a lateral disc protrusion at L4/5, “abutting the exiting left L4 nerve root. There is no evidence of right-sided nerve impingement.”
[40] Page 136 of the claimant’s bundle.
A CT scan of the cervical spine on 21 March 2023 reported a mild broad based (degenerative) disc bulge at C4/5 causing mild left sided neural foramen narrowing but no compression and mild bilateral arthropathy (degenerative changes) at the C7/T1 level. The report confirmed there was no right sided nerve root compression.
Medico-legal reports
Mr O’Neill, clinical psychologist provided a report to the insurer about “whether ongoing psychological treatment is reasonably necessary.” Ms Candalepas had advised Mr O’Neill that the claimant had terminated treatment prematurely and she wished to consult with her again. Further treatment was supported by Mr O’Neill.
Dr Keller, occupational physician provided a report to the insurer on 21 June 2022. The claimant told Dr Keller she did not lose consciousness and was able to stand and walk after the accident albeit with difficulty. He documents her attendance at Hospital and her early treatment and investigations. The claimant was taking six to eight Panadeine Forte a day.
The claimant denied any previous neck, shoulder or back problems and said she had no past psychiatric history. The claimant reported symptoms in the side of her face twice a week, headaches three or four times a week, 10 out of 10 neck pain for an hour at a time with no movement in her neck. Intermittent right shoulder and left shoulder pain 10 out of 10. Lower back pain was said to be intermittent, and she had symptoms in her right leg including pins and needles and cramps.
Dr Keller reported inconsistency in formal examination compared to informal observation. He noted the investigations that had been done and considered it was possible the accident could have caused minor temporary physical complaints but that her current complaints “were not consistent with lasting musculoskeletal injuries.”
He said there was no impairment related to any injuries. He did however suggest psychiatric evaluation be undertaken.
The insurer obtained a report from Dr Gertler, psychiatrist dated 21 October 2022.[41]
[41] Pages 29 and 91 of the joint bundle.
He notes the claimant had not worked other than as her 88-year-old mother’s carer since 2016. The claimant told him she might have been unconscious and had not been able to “see anything”. Ms Melnichuk reported a fear of driving developed, her sleep pattern changed, she experienced nightmares, withdrew, overate and became tired and could not concentrate.
Dr Gertler took a past medical history from the claimant who denied significant psychological problems but she did concede “stress-related symptoms several years ago in the context of housing problems and also in the context of concerns about her mother.”
Dr Gertler diagnosed a post-traumatic stress disorder and likely an adjustment disorder. He said there is no evidence of a pre-existing mental health condition. He thought her condition had not reached maximum medical improvement and declined to assess WPI.
On 23 August 2023, Dr Gertler provided another report to the insurer. He updates the claimant’s situation noting that other persons now come to help with her mother although the claimant manages to cook and perform some household chores. The claimant reported dreams or nightmares rarely. The claimant still over eats. She had problems with her vision and while she could read newspapers and watch TV, she could not read books. She drove but was anxious and has fluctuating moods. She reports excessive hair loss.
He had a history of the claimant’s pre-accident symptoms but noted she was mentally well at the time of the accident. He considered she still had symptoms of post-traumatic stress disorder which he described as being in partial remission. He noted pre-existing history of anxiety and depression which was reactive and related to stressors but said at the time of the accident there was no evidence she was suffering from those disorders.
Dr Gertler assessed WPI at 6% to which he added 2% for the beneficial effect of treatment.
Other assessments
Medical Assessor Smith examined the claimant on 31 May 2024 and issued a certificate on 13 June 2024. He was asked to assess the claimant’s psychological injuries but declined to do so on the basis that her post-traumatic stress disorder and persistent depressive disorder were not yet permanent but would be after “nine months of appropriate treatment.”
RE-EXAMINATION FINDINGS
Details of who attended the Assessment
The MRP re-examination was conducted by Medical Assessor Lahz and Medical Assessor Oates at the Commission’s Medical Suites on 4 November 2024 as arranged.
Ms Melnichuk attended accompanied by a female friend. The friend waited in the waiting room whilst the history was taken. At the claimant’s request, the friend was admitted to the examination room to assist Ms Melnichuk with undressing and redressing. The Medical Assessors agreed it was not the role of the interpreter to assist with these tasks.
A female Russian interpreter was in attendance for the duration of the assessment, which took two hours. The claimant’s English was very good, and the interpreter was rarely used.
History
Pre-accident medical history and relevant personal details
Ms Melnichuk said that she finished university degrees in medicine and accounting in her native Uzbekistan and worked for one year as a paediatrician. She said her mother was a neurologist and father was a pilot.
She came to Australia in 2005 from Uzbekistan and alone. She worked at St Vincent’s Private Hospital, North Shore Private Hospital and Wolper Hospital as an agency nurse from 2006 to 2011. Her English was not good enough for her to attempt the foreign medical graduate medical exams.
She then worked for ITP as a tax agent from 2011 to 2016, after which her mother became ill. Her mother had come out to Australia in 2011. Her father had died when she was young.
Earlier she had married and was divorced in 2009. She has a daughter aged 28. The daughter is a psychologist with the National Disability Insurance Scheme. Ms Melnichuk became her mother’s carer and went on a Centrelink carer’s pension from 2016.
She said she gives some voluntary advice to people and also did some part-time agency nursing, but has not done any of these roles since 2017.
In 2019, she did a Diploma of Community Services but has not worked in this field.
She lives in Housing Commission accommodation in Western Sydney with her mother. Her mother has a carer attending three days a week who helps with showering, goes with them with the dog to the park, goes shopping and does some housework.
The claimant has been involved in pet rescue for the last 11 years and had six cats at the time of the accident. She now has a rescue dog, along with 11 cats.
In 2011, she had an operation for kidney stones. She was not on any regular medication and had no other serious illnesses.
When asked about any previous physical conditions in her face, spine or limbs, Ms Melnichuk said she did not recall any problems with her face, neck, back, arms or legs before the motor vehicle accident.
She was also asked about any previous mental health issues and she said she had only one episode of psychological stress in her life before the accident and this occurred when dealing with an aggressive Housing Commission housing officer. She said she saw a psychologist at the time, but no medication was prescribed.
The Medical Assessors then asked her about elements of the past history recorded in the medical correspondence, including those below:
(a) back pain commencing in 2016 – she said this was a manifestation of kidney stones and not a mechanical musculoskeletal problem to the back. She says she was very active otherwise at the time, doing dancing, swimming and playing tennis, and could not have done those if she had a significant back problem;
(b) the claimant was asked about a report from Dr Havas, ENT, on 21 July 2017 referring to facial pain and headache. Ms Melnichuk said she was diagnosed with a left maxillary mass which was thought to be a mucocele. Surgery was suggested but she said the condition settled down with nasal sinus irrigation and she did not require surgery. She said the left sided facial pain and headache improved with no further symptoms;
(c) she agreed that in 2017, a bony protuberance was noted on the dorsum of the left wrist but said no treatment was required for it;
(d) she was taken to records from June 2019, suggesting there was an episode of neck and left upper trapezial pain. The claimant said she now recalled this and said there was no injury but this was from overuse while looking after her mother and doing more housework than normal, and that she found that shoulder massage was helpful, and
(e) regarding the Health Care Plans commencing with one of 22 February 2016, she stated that the back pain mentioned in them was related to kidney stones and she does not did not recall going to any allied health provider (chiropractor, physiotherapist or osteopath) at that time or before the accident.
The Medical Assessors did not take the claimant to the individual multiple entries relating to mental health issues, stress and anxiety before the accident. The claimant restated that she recalled only one episode of psychological stress before the accident associated with a housing issue.
History of the motor accident
She said on 19 March 2021, at about 11.15am, she was taking two kittens in carry cases (placed in the front passenger footwell) to adopters. There were no human passengers in the vehicle she was driving. She was heading straight through an off-centre intersection at traffic lights and had a green light.
An oncoming vehicle turned right across her path, instead of giving way, at speed. She said she was travelling at about 50kmph and the oncoming vehicle was driving faster. This vehicle had four occupants.
Ms Melnichuk said she had a seatbelt on, and the airbags deployed. She thinks she hit her head, first on the driver’s window and then with the airbag. Everything went dark, although she said she did not lose consciousness. She said she vomited.
She tried to open her door but could not do it without assistance by a bystander. She was helped out of the car as she was dazed. She had immediate strong abdominal pain and could not walk, so she sat down in the street. She felt numbness on the right side of her face with pins and needles.
An ambulance was called, and she was taken to Bankstown/Lidcombe Hospital. She said she lost vision again in the ambulance and vomited again and that this also occurred at the hospital.
She said her daughter was called and came and collected the kittens. Her car was not driveable and was written off. Police apparently attended the scene after she had left.
She said she had to wait too long at Bankstown Hospital for medical attention and she was concerned about her mother being at home alone, so she discharged herself. She had apparently been advised to stay in hospital for assessment in view of the facial symptoms.
History of symptoms and treatment following the motor accident
Ms Melnichuk said she attended the hospital again the next day and was given two Endone but that she returned home without being fully assessed.
The claimant says she developed bruises on the right hand and arm, the right outer thigh and hip area, left breast, abdomen and recalls having bleeding from the right ear at the time of the accident. The claimant said she sustained no bruising to her face.
Ms Melnichuk says the right leg started to hurt after a couple of days and low back pain appeared sometime later. She found a dental implant inside the car in the days after the accident. She says this had been knocked from her right lower jaw at the time of the accident.
The claimant said she saw her GP for the first time on 22 March 2021 and was prescribed Endone, and as well she was taking Vitamin B12 and B6 and had investigations.
A couple of months later she was referred to a psychologist, Ms Candalepas, because she could not sleep and was waking up feeling stressed out and sweating.
Ms Melnichuk said she was referred to a neurologist, Dr Schwarz, whom she saw on 29 May 2021 because of right facial numbness and pins and needles. She also had right shoulder tightness and cramping in the right thigh, and heaviness in the leg making walking difficult. She had a twitching in the right eye and intermittent loss of vision in the right eye. The neurologist diagnosed a stress reaction, and no treatment was prescribed.
For 6-12 months Ms Melnichuk said she could not move her right arm properly and had pain and swelling in the right upper arm. She was assessed at St George Hospital in April 2021. She had stiffness on turning her head to the right, and was aware of right trapezial stiffness and it was easier to turn to the left. There was also some left shoulder stiffness.
She had an X-ray and ultrasound showing bursitis. She had a cortisone injection to the left shoulder on 13 July 2021 after which that shoulder improved.
Ms Melnichuk reported seeing Dr Prosser, neurologist, on 5 July 2021 and further investigations were ordered, but she did not return to Dr Prosser because she was not happy with the examination.
She was then referred to Dr Yalizis, orthopaedic surgeon, on 7 September 2021 and he diagnosed a frozen shoulder and ordered MRI scans. However, this showed no evidence of adhesive capsulitis.
At a subsequent review with Dr Schwarz, he advised her to see Dr Noore, a psychiatrist specialising in pain management, which she did on 14 September 2021. Dr Noore advised her to attend a pain management group, but she says she is a private person and did not want to share her problems with others. Therefore, she remained with Ms Candalepas, psychologist, since she felt more comfortable with her. The Panel notes the claimant did attend some of the other sessions in the pain management program.
The claimant says she attended a chiropractor, Mr Kategiannis of Kogarah a couple of times but she was too tender in the cervical and thoracic spine for any meaningful treatment, so she did not continue.
Ms Melnichuk says that more recently, she started attending a physiotherapist Ms Bazergy of Kogarah. She had a report from this practitioner, but the Medical Assessors told her they could not accept this new document and to present it to her solicitor. The claimant said her neck and back were too tender for the physiotherapist to massage, so she was given exercises for her neck, back and legs. She has attended five times under Medicare and applied to the insurer to have more treatment.
Details of any injuries or conditions sustained since the motor accident
She said she has had no further accidents.
She had laparoscopic surgery for the right ovary since the accident and then recalled that she had previously had removal of the left ovary.
Current state
Current symptoms
Ms Melnichuk says she has to sleep with a soft neck collar for comfort. She has soreness in the lower back with prolonged sitting and neck discomfort with sitting for more than 25 minutes. She has to get up or else support the back of her head with her hand.
She has central neck pain four to five times a week, more when she lies down in the evening, and the neck pain is 5-8/10 on the visual analogue scale. It sometimes radiates to the right shoulder and into the right upper arm. She only gets very occasional left shoulder discomfort now. She said she has no symptoms in her lower right arm or right hand and no symptoms in the left upper limb at all. She reported occipital headaches if her neck pain is more severe, and sometimes pins and needles in the upper right arm and trapezius.
The claimant’s back pain comes on with walking or with sitting too long. If the back pain is strong, she will get radiating pain to the lateral (outside) right thigh and calf, and intermittent numbness in the right thigh and heaviness in the right leg, causing difficulty in walking at times. She complained of no symptoms in the left lower limb at all.
She gets intermittent numbness in the entire right side of the face with pins and needles about three to four times per day, with no triggering factor, and it lasts for three to five minutes.
She gets twitching in the right eye at times and needs to hold the eye. She says she has had to get new distance glasses after the accident because of her right visual problems.
She is scared when driving and only drives locally. She reported experiencing numbness in the right side of the face and pain in the right side of her body when driving.
She volunteered that her low back pain started within a couple of weeks of the accident and was first reported to her GP on 7 April 2021. She thought her abdominal pain and difficulty walking at the scene of the accident were actually due to this lower back pain.
Current and proposed treatment
She remains under the care of her GP, Dr Tcherkas.
She takes Valium 5mg one at night and has stopped Endone. She has Panadeine Forte nearly every day, between two and six tablets per day. She takes more if she has bad headache. The Panel notes that Panadeine Forte contains the opiate Codeine and if this history as to the level of this medication being consumed is correct, the claimant requires review by her GP and a pain physician.
Ms Melnichuk says she has supplements including Vitamin B6, B12 and magnesium and Blackmore’s vitamin for sleeping and anxiety. She has salbutamol and steroid combination inhaler for breathing difficulties for the last few months.
She says she cannot swim, dance or play tennis anymore. She has to rest on the bed sometimes during the day. She still socialises with her friends and goes to a coffee shop or to the park. A friend carries shopping when they accompany her.
At this point, the claimant asked the Medical Assessors whether her friend could be permitted to confirm the appearance of spasm in the right thigh the other day. As the presence of spasm does not determine an impairment percentage, the Medical Assessors agreed. They were told by the friend that when they were walking the claimant had said that a right thigh spasm or cramp had occurred and the claimant had to stop walking for about five minutes before she could continue.
Physical examination
General presentation
Ms Melnichuk is right hand dominant.
She says before the accident, she weighed 65kg but through stress eating, she has gained 10kg in the time since the accident. She was 156.5cm tall and weighed 75.6kg. The Panel notes the claimant’s weight recorded in the GP notes has fluctuated over time and the records indicate she weighed 72kg in February 2020. The care plans completed by Dr Tcherkas and others have noted concerns with the claimant’s body mass index (BMI) and a dietician is stated on these care plans to have been involved in her care.
The claimant sat in discomfort, leaning to one side with her hand supporting her lower back. Her gait was laboured, and she held her right lower back as she walked. She said her right leg and her right arm felt heavy.
She was able to walk on tip toes and heels but complained of right leg discomfort with the latter.
Facial examination
With her eyes open, there was decreased pin prick sensation in all three divisions of the trigeminal nerve in the right side of the face and decreased light touch sensation in all three divisions of the right trigeminal nerve. There was however no trigeminal motor weakness, and she could tense the masseter muscles at the jaw.
There was no other abnormality of any cranial nerves, and no twitching or spasm noted in the eyelids or around the eyes.
Cervical spine (cervicothoracic)
The trapezii muscles were soft. There was no guarding or spasm observed. Cervical spine movement was measured as follows:
(a) flexion and extension were one-half normal;
(b) rotation was one-quarter normal on both sides, and
(c) lateral flexion was one-third normal on both sides.
There was general tenderness in the cervical spine along the mid-line.
She recalled occasional radiating neck pain and pins and needles in the upper right arm only and not in the lower right arm or hand. The claimant did not complain that any such symptoms were present at the time of the re-examination. There were no complaints of left arm pain (upper or forearm).
In terms of a neurological examination of the upper limbs:
(a) there was no visible muscle atrophy in either arm. The claimant’s upper arm girth was measured at 27cm with the right equalling the left at 5cm above the olecranon and in the forearm girth, the measurement was 23cm with the right equalling the left 5cm below the olecranon;
(b) once the claimant relaxed her right arms sufficient for testing, the reflexes were present, brisk and symmetrical;
(c) nerve tension tests were negative;
(d) testing of power showed cogwheeling in the right arm, indicating pain inhibition, but was normal on the left, and
(e) sensation in the left arm was intact and in the right arm showed global reduction of light touch and pin prick sensation in the entire right upper extremity not following a specific dermatomal pattern. More detailed pin prick testing showed intact sensation in the left upper extremity, except over the shoulder. In the right upper extremity there was reduction in the lateral right forearm and medial right upper arm, and reduction in the right hand except for the little finger which was intact. This did not follow any particular nerve root distribution.
Thoracic spine (thoracolumbar)
There was normal range of motion with no muscle spasm or guarding, no non-verifiable radicular complaints and normal sensation over the entire trunk.
Lumbar spine (lumbosacral)
On examination of the lumbar lower back there was prominent pain behaviour with flinching and grimacing on feather light palpation in the mid-line. There was no muscular stiffness, and no guarding observed.
Measurement of lumbar spine motion was difficult due to the claimant’s pain behaviours:
(a) flexion was one-half normal, extension two-thirds with support of the back, and
(b) lateral flexion two-thirds bilaterally.
While sitting and moving in her seat during the history-taking part of the examination, Ms Melnichuk demonstrated a greater range of movement. The Medical Assessors formed the view the range of motion demonstrated in the back was not a true reflection of her ability to move her lumbar spine.
In terms of the neurological examination:
(a) reflexes were normal with plantar responses both flexor in left and right lower limbs;
(b) power testing in both lower limbs was normal;
(c) there was no visible muscle atrophy in the lower limbs. Ms Melnichuk’s thigh girth was measured; right 46cm and left 46.5cm. Calf girth was measured right 38cm, left 38.5cm;
(d) sensation was said to be reduced in the right lower extremity posterior thigh and dorsum of right foot, although intact on the calf, and reduced on the sole of the right foot. Pin prick sensation was reduced in right L2 and L3 area and in the left in the lateral calf, but normal in the right lateral calf. Ms Melnichuk would not remove her socks to allow the Medical Assessors to check her feet, complaining of cold feet, and
(e) supine straight leg raising was limited by complaints of low back pain, but nerve stretch test was negative and sitting straight leg raising was negative.
Shoulders
There was no evidence of wasting or atrophy in the muscles of the shoulder girdle.
On power testing, there was some cogwheeling noted on the right, but the left was intact.
Measurement
RIGHT
Measurement
LEFT
Flexion
80°, 65°, 50°
Complaining of trapezial pain
110°, 100°, 50°
Complaining of trapezial pain
Extension
30°, 40°, 30°
30°, 50°, 40°
Adduction
30°, 20°, 20°
Complaining of trapezial pain
30°, 40°, 20°
Complaining of trapezial pain
Abduction
70°, 80°, 50°
Complaining of trapezius and shoulder pain
120°, 100°, 80°
Complaining of neck and trapezial pain
Internal Rotation
90°, 90°, 90°
90°, 90°, 90°
External Rotation
90°, 90°, 90°
80°, 90°, 80°
As can be seen above, there were no complaints on rotation of the shoulders.
Comments on consistency
The claimant sat comfortably during the history taking interview phase of the re-examination (for almost an hour). When the re-examination moved into the physical examination stage, Ms Melnichuk indicated discomfort and transferred from sit to stand and stand to lie on the couch in guarded staccato movements.
There was prominent pain behaviour observed, with withdrawal from feather light palpation of the spine, cogwheeling[42] on power testing, and self-restriction of active movements of the lower back, trunk and limbs.
[42] Cogwheeling is a series of jerky movements observed during range of motion measurements. It is found in patients with Parkinson’s disease but in other patients is a non-organic sign associated with pain behaviours and not an indication of injury.
When asked for an explanation as to why this behaviour was present, she replied it was so that she could avoid pain, because she had not taken painkillers on the day of examination. When the examination concluded, she asked if it was OK to take painkillers at that time and she was permitted to do so.
The highly variable range of movement noted in both shoulders was put to the claimant who said this was due to varying levels of pain present, and the fact that she had had no analgesics. Ms Melnichuk confirmed that her left shoulder gave her only occasional symptoms and her left arm and hand had no symptoms. She could not explain why her left shoulder range of motion was so restricted.
Dressing and undressing were not observed, as she required the assistance of the support person, and requested this be carried out behind curtains. When asked by the Assessors, the claimant said that she dressed and undressed herself at home because there was no-one to help her.
She was asked about how she cared for her rescue animals, and she said that she had various volunteers who were rostered to come into her home and help, and they would pick up and carry the bags of pet food and pick up the cats when necessary and arrange the feed bowls.
One of her mother’s carers would also accompany the claimant and her mother when they walked the dog in the park.
The claimant’s history at the re-examination was of only one psychological stressor before the accident, being an incident with the Housing Commission in June 2017. The Panel notes other complaints of stress and a significant issue with her landlord in May 2020 which also resulted in referral to a psychologist and other referrals in 2016. Mental health plans have been developed by the GP from time to time.
The claimant appeared to be minimising her pre-accident physical symptoms suggesting her lower back pain was related to her kidneys and her neck pain was treated with simple massage. A report from a physiotherapist in June 2019 refers to the claimant’s neck pain as a chronic disease albeit mainly on the left side. The Panel notes 12 care plans in the records for physical complaints and several referrals to physiotherapists before the accident between February 2016 and October 2020. All 12 of these care plans refer to back complaints and the involvement of physiotherapists, a chiropractor and an osteopath. The goals of all of these care plans is stated to be to reduce pain in the lower back and improve mobility in the lower back. This is, in the clinical judgment of the medical assessors an indication of a musculo-skeletal spinal problem and not kidney complaints. The Panel does not accept that the claimant’s back pain was kidney-related noting that Dr Tcherkas has taken the time to separate out in the care plan, care for the claimant’s kidney issues and care for her spinal issues.
The claimant was dismissive of the personnel at the various hospitals she has attended saying she was not treated and did not want to wait to be treated. The records made available to the Panel suggest this may not be entirely accurate and that the claimant has been examined, has been investigated (radiology) and had medication prescribed.
Imaging
No imaging was brought to the assessment. The claimant had various imaging reports with her, which were already in the file of evidence.
She brought a new physiotherapy report, which the Medical Assessors declined to view and directed her to present to her solicitor.
CONSIDERATION OF THE ISSUES
Diagnosis and causation
The ambulance report documents complaints of facial pain (right sided), blurred vision (which resolved) and an injury to the right hand. Hospital records of the day record dizziness and resolved blurring of vision but right thumb, right and left arm pain and abdominal pain. Three days after the accident the claimant reported to her GP, right sided numbness, bruising to her abdomen, right forearm, left breast and chest and left sided neck spasm. A week later the claimant complained at hospital of headache and neck pain and the discharge summary also refers to back pain.
The Panel notes that the accident was a head on collision by the claimant’s vehicle with another vehicle turning at an intersection. The claimant’s airbags deployed which suggests the forces involved in the accident were not insignificant.
The Panel is satisfied that the accident could have led to a number of soft tissue injuries including musculo-ligamentous injuries, bruises and abrasions. There is no radiological evidence of any fractures. Radiology of the shoulders, cervical and lumbar spine show degenerative changes which are likely to have been aggravated by the soft tissue injuries causing pain.
While there are disc bulges reported in the lumbar and cervical spine, there is no convincing sign of nerve root injury caused by those bulges.
On the basis of the contemporaneous records, the Medical Assessors are satisfied that the claimant sustained the following injuries:
(a) soft tissue injury to the cervical spine. Dr Yalizis treated the claimant for complaints in both of her shoulders in 2021, and Dr Keller was given a history in June 2022 of pain in both shoulders, but in March 2023 Dr Tcherkas recorded in a certificate of fitness only right shoulder and right upper limb symptoms. The claimant’s history to the Medical Assessors was of occasional left shoulder discomfort and neck pain radiating sometimes to the right shoulder and arm which is consistent with the most recent history to Dr Yalzis. The Medical Assessors did not find any evidence to suggest direct injury to either shoulder, but rather are of the view that in their clinical judgment, the claimant’s shoulders were affected by referred symptoms from the cervical spine injury;
(b) injury to the soft tissues of the thoracic and lower back soft tissue injuries. The claimant complains of right sided lower limb symptoms resulting from her back injury. The Panel notes the 12 care plans completed by the claimant’s GP from February 2016 to October 2020 all of which mention lower back issues. While the Panel accepts the claimant could have and did sustain a soft tissue lower back injury, the Panel is of the view that the accident caused an exacerbation or aggravation type injury only;
(c) an injury to the head leading to possible teeth injuries (which is outside the Panel’s expertise) and soft tissue injury to the face (caused by impact with the deploying airbag or with the side of the door). The Panel does not accept that the claimant sustained any injury to the trigeminal nerve on the right side of her face. The claimant’s complaint of numbness, pins and needles over the whole of the right side of her face would suggest injury to the brain stem and is also not consistent with the normal motion of the jaw. The history of bleeding from the right ear is not accepted as there is no contemporaneous record of bleeding from the ear or any other history given to any other examiner of bleeding from ear;
(d) soft tissue injury (bruising) to the right hip and buttock area likely from the seat belt which has resolved leaving no impairment. The Panel is not satisfied the claimant sustained any other frank or specific injury to her legs;
(e) soft tissue seat belt bruising to the abdomen, now resolved, leaving no impairment, and
(f) soft tissue injury to the right arm and hand including bruising and contusion which has now resolved leaving no impairment.
The Panel is of the view that the claimant has developed a chronic pain syndrome with elements of central sensitisation, characterised by fear avoidant behaviour and what appears to be a maladaptive psychological reaction to her situation. A more detailed psychiatric or psychological diagnosis is outside the expertise of the Medical Assessors and a matter for the Medical Assessor charged with assessing WPI from the psychiatric perspective.
PERMANENT IMPAIRMENT
Spine impairment
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. The Guidelines provide that only the DRE method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions, the cervical, thoracic, and lumbar. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 6.7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant in particular in the context of submissions about radicular symptoms and signs of radiculopathy.
DRE II requires there to be:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which 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 III requires radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination”:
“(a) loss or asymmetry of reflexes (see Table 6.8)
(b) positive sciatic nerve root tension signs (see Table 6.8)
(c) muscle atrophy and/or decreased limb circumference (see Table 6.8)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[43]that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[44] So too if there was lower limb impairment related to any injury to the back.
[43] [2011] NSWSC 351.
[44] This is referred to by Medical Assessor Cameron and in these reasons as the “Nguyen Principle”.
Cervical spine impairment
On examination by Medical Assessors Oates and Lahz, there was no guarding, no dysmetria (loss of range of motion was symmetrical) and no non-verifiable radicular complaints, that is, complaints which following a specific spinal nerve root distribution. The claimant recalled experiencing occasional radiating pain into the right shoulder and the right upper arm only but not the forearm or the hands. This pain was not present at the examination. It is the clinical judgment of the Medical Assessors these symptoms do not constitute non-verifiable radicular complaints, they are generalised, variable and do not follow a specific spinal nerve root distribution. The complaints do not correlate to the radiology which suggests, if anything, a left sided disc bulge and the claimant complained of no left arm symptoms and only occasional pain in the left shoulder.
There were no signs found at the examination of cervical radiculopathy.
The claimant complains of generalised tenderness over the cervical spine. The Panel finds the claimant has a DRE Category I impairment of 0% for her cervical spine.
The claimant also complains of headaches at the back of her head if her neck pain is severe. Headaches from neck pain are common however they do not attract a separate impairment percentage in accordance with cl 6.162 of the Guidelines.
Thoracic spine impairment
In the thoracic spine, the clinical examination findings present indicated no dysmetria, no guarding, no non-verifiable radicular complaints and no signs of radiculopathy.
The claimant is assessed as having a DRE Category I 0% WPI for her thoracic spine.
Lumbar spine impairment
While the lumbar spine was not an injury listed for assessment, Medical Assessor Cameron assessed it. The Panel has indicated that we intended to assess it.
Asymmetry in the flexion – extension plane was recorded. The Panel notes that dysmetria was not observed by other medical examiners whose reports are in the file of evidence, indicating it is not a reliable finding upon which to base an assessment of permanent impairment. The Panel also noted the four-year history of care plans all of which indicated the goal was to improve the claimant’s lumbar spine motion. This suggests any restriction of motion in the lumbar spine in 2024 may not be caused by the soft tissue injury sustained three years earlier.
Table 6.8 of the Guidelines states:
“To qualify as true non-uniform loss of motion, the finding must be reproducible and consistent, and the medical assessor must be convinced that the individual is cooperative and giving full effort.”
For the reasons set out above and due primarily to the inconsistency of movement observed during the history taking part of the examination and the formal physical examination, the Panel does not accept the asymmetrical loss of motion in the flexion – extension plane of motion as true non-uniform loss of motion.
There was no spasm, and no guarding observed at the re-examination.
The claimant gave a history of pain radiating to the lateral right thigh and right calf with intermittent numbness in the right thigh and heaviness in the right leg. On testing at the re-examination there was reduced sensation in the right thigh but not in the right calf. There was no reduced sensation in the left thigh but there was present reduced sensation in the left lateral calf. These variable lower leg symptoms cannot, in the clinical judgment of the Medical Assessors be considered as non-verifiable radicular complaints because they did not follow a specific spinal nerve root distribution. The Panel notes the lumbar spine disc bulge abuts but does not impinge any exiting nerve roots suggesting no lumbar nerve root injury is causing these symptoms.
Two or more signs of lumbar radiculopathy were not demonstrated at the re-examination.
The Panel is satisfied that the claimant’s lumbar spine impairment is a DRE Category I resulting in a 0% WPI.
Head and face
The central nervous system including the brain is assessed in accordance with Chapter 4 of AMA 4 Guides and clauses 1.160-1.176 of the Guidelines.
Clause 1.160 provides for the following categories of impairment resulting from head and brain injury:
(a) aphasia and communication disturbances (section 4.1a of AMA 4 Guides);
(b) permanent disturbances in level of consciousness and awareness (section 4.1d of AMA 4 Guides) such as a coma;
(c) disturbances of mental status and integrative functioning (section 4.1b of AMA 4 Guides), and
(d) emotional or behavioural disturbances (section 4.1c of AMA 4 Guides).
The medical members of the Panel note Ms Melnichuk showed no difficulty with comprehension or communication throughout the two-hour re-examination therefore section 4.1a of the AMA 4 Guides is not relevant to this assessment. While the claimant thinks she may have had a brief period of unconsciousness at the scene, section 4.1b of AMA 4 Guides is also not relevant to her impairment assessment as there is no permanent disturbance of consciousness and awareness.
Clause 1.164 of the Guidelines provides that in order for there to be an assessment of mental status impairment (section 4.1b) and emotional and behavioural impairment (section 4.1c), there must be:
(a) evidence of a “significant impact to the head”, and
(b) one or more significant, medically verified abnormalities such as an abnormal GCS score, post-traumatic amnesia (PTA) or brain imaging abnormality.
There is no contemporaneous evidence of a significant impact to the head although the Panel accepts there was an impact with the door and or the airbag as it deployed. However, even if there was a significant impact to the head, there is no medically verified abnormality. There was no abnormal GCS score recorded by ambulance personnel or hospital staff, the claimant recalls the lead up to the accident, the accident itself and its aftermath therefore there is no PTA and imaging undertaken at the hospital in the light of complaints of dizziness and visual disturbance indicated no abnormality.
There is therefore no impairment to the functioning of the brain or the central nervous system arising from any injury to the claimant’s head.
The claimant reported a dental implant came loose in the accident. Any impairment arising from that injury is not within the expertise of this Panel to assess.
The claimant reported early symptoms of numbness and swelling to the face with pins and needles in the face with paraesthesia persisting. She also reported involuntary contractions (twitching) of the right eye muscles not evidence to the Medical Assessors at the re-examination. The Panel notes re-accident complaints of involuntary contractions (7 July 2017) investigated by an ear nose and throat surgeon who took a history longstanding headaches and facial pain. On 29 May 2020 the claimant complained of right face and ear canal symptoms. These symptoms (and others) have been examined by two neurologists (Dr Prosser and Dr Schwartz) who found no neurological cause.
The Panel notes that there is no history from the claimant and no record in the contemporaneous documents of any bruising to the claimant’s head or face and the Panel notes the normal brain scan on 21 March 2021. The Medical Assessors are of the view that if the claimant did sustain an injury to the trigeminal nerve causing the symptoms in the right side of the face there would have been significant bruising recorded and abnormality in the brain and head imaging studies. It is the clinical judgment of the Medical Assessors that it is not medically plausible for a soft tissue injury to the face caused by an airbag or blow from contact with the driver’s side of the car to result in an effect on all three divisions of the trigeminal nerve simultaneously.
Shoulders
Ms Melnichuk reported occasional left shoulder pain and said that sometimes her neck pain radiates into the right shoulder and into the right upper arm.
Shoulder impairment is assessed according to the Nguyen principle, because there are referred symptoms from the cervical spine soft tissue injury to the shoulders complained of at the time of examination, reported to be limiting active shoulder range of movement but there is no evidence of direct shoulder injury in the contemporaneous records.
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others. Regional impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4 Guides.
There are several methods of assessment provided:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The abnormal range of motion requires the measurement of three functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and 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 AMA 4 Guides.
Clause 6.50 of the Guidelines provides as follows:
“ 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:
(a) a goniometer should be used where clinically indicated
(b) 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
(c) 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
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Medical Assessors used a goniometer to measure the claimant’s active range of motion. The more limited range of motion in the right compared to the left and the imaging of the cervical spine suggested that the results were not reliable, so three repetitions were measured and recorded.
Because of the variability in range of movement in both shoulders when repeated and the other inconsistencies noted above, the Medical Assessors considered that active range of movement was not a valid indicator of permanent impairment, and the measurements obtained should not be used.
The Medical Assessors were satisfied that there was some impairment in as a result of the neck injury and that this impairment needed to be assessed by way of an analogous condition. The most appropriate similar condition listed in section 3.1m of the AMA 4 Guides was considered to be impairment from mild crepitation of the acromioclavicular joint because this condition, when present, is associated with symptoms of discomfort on elevation of the arms at the shoulders. The Medical Assessors are of the view symptoms from this condition are similar to the complaints made by the claimant at the time of the Panel’s re-examination.
Table 19 (at page 59 of AMA 4 Guides) provides, mild crepitation severity results in a 10% impairment of the joint. From Table 18 (page 58 of AMA 4 Guides) the acromioclavicular joint is stated to be 25% of upper extremity function.
Therefore, a mild crepitation impairment (10%) of the acromioclavicular joint (25%) gives an UEI of 2.5% which is rounded up to 3% UEI for both the right shoulder and left shoulder. A 3% UEI is equivalent to 2% WPI in accordance with Table 3 at page 20 of AMA 4 Guides.
CONCLUSION
The claimant’s total impairment is 4% made up as follows:
(a) cervical spine DRE I – 0%;
(b) thoracic spine DRE I – 0%;
(c) lumbar spine DRE I – 0%;
(d) right shoulder 2% WPI;
(e) left shoulder 2% WPI, and
(f) head no assessable impairment.
While the claimant has alleged injuries to other parts of her upper and lower limbs, due to experiencing pain in these areas, the Panel is not satisfied that these are continuing to cause any assessable impairment. The claimant’s injury to her abdomen has also not resulted in any ongoing assessable impairment.
While the Panel has come to the same conclusion as Medical Assessor Cameron as to the degree of WPI, because the Panel has come to a different conclusion as to the injuries assessed (in particular causation of the lumbar spine impairment), the Panel therefore revokes his certificate.
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