Moore v Allianz Australia Insurance Limited
[2024] NSWPICMP 808
•29 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Moore v Allianz Australia Insurance Limited [2024] NSWPICMP 808 |
| CLAIMANT: | Kristy Moore |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 29 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Kuru; the claimant suffered injury in an accident on 5 October 2020; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine, left shoulder and left hip; MA Karu assessed 0% WPI for cervical spine; 5% WPI for lumbar spine, 0% WPI for left shoulder and 0% WPI for the left hip; Held – notwithstanding lack of contemporaneous complaint causation of injury to left shoulder and the lumbar spine established; Briggs v IAG Limited trading as NRMA Insurance; injury to left shoulder secondary to injury to cervical spine as per Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; soft tissue injury to cervical spine; soft tissue injury to lumbar spine; labral tear of the left hip; cervical spine assessed as 0% WPI; using range of motion method left shoulder assessed as 1% WPI; lumbar spine assessed as 5% WPI; left hip assessed as 2% WPI; total WPI 8% caused by the accident; certificate MA Kuru revoked. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Robert Kuru dated 31 May 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 8% which is not greater than 10%: · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · left hip – labral tear, and · left shoulder – soft tissue injury secondary to the injury to the cervical spine. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 5 October 2020 Ms Kristy Moore (the claimant) was a passenger in a vehicle travelling on the Princes Highway Corrimal when another vehicle collided with the front driver’s side of the vehicle causing the vehicle in which the claimant was a passenger to collide with a power pole (the accident).
Ms Moore was 27 years of age at the date of accident and is now 31 years of age.
Ms Moore has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Moore under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Alexander Kuru who issued a certificate dated 31 May 2024. It is that certificate which is the subject of this review.
DOCUMENTS BEFORE THE REVIEW PANEL (Panel)
On 21 August 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 288 (claimant’s documents).
On 29 August 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 207 (insurer’s documents).
In response to a Direction from the Panel dated 8 October 2024 the claimant filed a second indexed and paginated bundle of documents dated 4 November 2024 (claimant’s documents dated 4 November 2024).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
3. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
4. 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
5.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
6.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
7. This, therefore, involves a medical decision and a non-medical informed judgement.
8. 6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
9. (a) loss or asymmetry of reflexes;
10. (b) positive sciatic nerve root tension signs;
11. (c) muscle atrophy and/or decreased limb circumference;
12. (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
13. (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
CERTIFICATE UNDER REVIEW – CERTIFICATE OF MEDICAL ASSESSOR KURU
Medical Assessor Robert Kuru issued a certificate dated 31 May 2024.[3] The following injuries were referred to Medical Assessor Kuru for as assessment as to permanent impairment:
[3] Claimant’s documents p 19.
“• cervical spine – musculoligamentous injury to the neck;
· lumbar spine – musculoligamentous injury to lumbar spine;
· shoulder – rotator cuff injury to the left shoulder; and
· hip – labral tear of the left hip.”
Medical Assessor Kuru reported Ms Moore continued to have pain in the lateral aspect of her leg and some numbness in her toes. She also reported some groin pain and anterior left shoulder pain. She reported left sided lower back pain radiating across her left buttock and laterally down her leg with some numbness in her toes. He found the distribution of her pain would be consistent with an L5 nerve root irritation, but he noted she had not undergone imaging.
On examination he found a small range of symmetrical motion in the neck. Romberg’s test was negative and upper limb reflexes were symmetrical. Peripheral power was intact.
In respect of the lumbar spine, he reported flexion was to the proximal third of the tibia. Trendelenburg’s test was normal as was heel-toe stance. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with down going Babinskis. Peripheral power was intact and straight leg raise was to 90º in the sitting position.
On examination of the upper extremities, he found a normal symmetrical range of motion. Impingement tests were negative.
On examination of the hips, he found symmetrical flexion, abduction, adduction, internal and external rotation.
Medical Assessor Kuru said there was no evidence to suggest injury to the rotator cuff of the left shoulder and said it would be best described as musculoligamentous injury.
He found all injuries referred for assessment were caused by the accident.
Medical Assessor Kuru assessed a total 5% whole person impairment (WPI). He assessed a 0% WPI for the cervical spine, 5% WPI for the lumbar spine, 0% WPI for the left hip and 0% WPI for the left shoulder.
REVIEW PROCEDURE
On 1 July 2024 Ms Moore sought a review of the medical assessment of Medical Assessor Kuru.
On 5 August 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.[4]
[4] Section 7.26 of the MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission, Act, 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5] The review is by way of a new assessment of all matters with which the medical assessment is concerned.
[5] Rule 128 of the PIC Rules.
On 8 October 2024 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits
In the Application for personal injury benefits dated 23 October 2020 the claimant listed the following injuries:
· sprained neck;
· concussion;
· amnesia;
· teeth were smashed and chipped;
· kidney damage – bleeding;
· damaged hip;
· black eye;
· mental health.[6]
[6] Claimant’s documents dated 4 November 2024 p 3.
Treating medical evidence
Following the accident on 5 October 2020 the NSW Ambulance Service attended the scene.[7] Ms Moore was trapped in the vehicle and was extricated. Relevantly, she complained of spine tenderness and pain in the left hip.
[7] Claimant’s documents p 113.
Ms Moore was conveyed to Shoalhaven Hospital where she was admitted overnight. She was reported to be complaining of cervical spine pain and left hip pain. She was amnesic to events and was noted to have microscopic haematuria. Imaging was reported as follows:
· CT scan of the cervical spine – normal examination;
· chest X-ray – no trauma identified;
· X-ray pelvis – no bony abnormality demonstrated;
· CT scan brain – no intracranial evidence of trauma demonstrated, and
· renal ultrasound – no evidence of any acute renal injury.
Ms Moore consulted Dr Innocent Nwali of Corrimal Healthcare Centre on 8 October 2020 when she reported the claimant’s involvement in the accident. She reported she had no structural injuries, but she still had hip pain and was walking with crutches.[8] On 12 October 2021 Dr Nwali reported Ms Moore still had aches and pains. Notwithstanding regular attendances there was no specific record of complaint pertaining to the neck, lower back or left shoulder between 8 October 2020 and 9 April 2021 when Ms Moore changed medical practitioner. All complaints related to the left hip.
[8] Claimant’s documents p 175.
On 23 December 2020 Dr Shaikh referred the claimant to Dr Aziz Bhimani, orthopaedic surgeon in respect of the left hip injury.
On 1 February 2021 Dr Bhimani reported the MRI scans demonstrated an anterior labral tear and chondral defect with some associated marrow oedema of the left hip.[9] He reported significant pain in the left hip and buttock radiating into the groin and thigh. He reported the hip was tender to touch across the peritrochanteric anterior thigh and posterior buttock.
[9] Claimant’s documents p 159.
On 11 February 2021, 11 March 2021 and 13 April 2021 Ms Moore had CT guided platelet rich plasma (PRP) injections to the left hip.
Ms Moore commenced treatment with East Corrimal Medical Centre.[10] On 21 April 2021 Dr Lakshmi Gribble recorded the car accident in October the preceding year and noted Ms Moore had had three platelet-rich plasma injections (PRP) injections into the left hip, an injury to the kidneys and back pain since the accident.[11] She also noted the history of depression. On 28 April 2021 Dr Gribble reported the claimant was still getting back pain, but it was better than before. On 10 May 2021 Dr Mehrotra reported the claimant had ongoing left back/flank pain which was unresponsive to physiotherapy. On 10 August 2021 Dr Fernandez reported a flare up of chronic hip symptoms.[12]
[10] Insurer’s documents p 119.
[11] Claimant’s documents p 126.
[12] Insurer’s documents p 131.
Ms Moore attended physiotherapy with PhysioHealth and Sports Injury Clinic between 17 June 2021 and 16 January 2023 in respect of the left hip and groin pain although the claimant also underwent treatment for right hip pain.[13] The Pain Diagram completed on 17 June 2021 shows injury to the left hip, groin region and lower back region. There is no indication of injury to either the neck or left shoulder.[14]
[13] Claimant’s documents p 249 and claimant’s documents dated 4 November 2024 p 7.
[14] Claimant’s documents p 261.
On 5 August 2021 Dr Anthony Leong, orthopaedic surgeon noted non-operative options had been exhausted and recommended a left hip arthroscopy and labral repair.[15]
[15] Claimant’s documents p 165.
Ms Moore had a left hip arthroscopy and acetabular labral repair on 9 March 2022 under Dr Anthony Leong.[16] At the three month review on 27 May 2022 Dr Leong reported Ms Moor was largely comfortable but with some clicking in the groin and occasional shooting pain down the leg.
[16] Claimant’s documents p 166
Imaging
CT cervical spine, 5 October 2020
The report noted:
20.“The alignment of the cervical spine is normal.
21.Cervical soft tissues are within normal limits.
22.No sequelae of trauma are demonstrated.”[17]
[17] Claimant’s documents p 190.
Ultrasound left hip, 18 November 2020
The comment reads:
24.“Mild subtrochanteric bursitis which was tender on probe pressure. No definite gluteal tendon tears were seen.
25.The joint as such on ultrasound appears to be normal but as per Sonographer’s note the joint point is also present with limping.”[18]
[18] Insurer’s documents p 84.
MRI left hip, 17 December 2020
The impression recorded was as follows:
27.“Near full-thickness left anterior labral tear with adjacent focal near full-thickness chondral loss. However, the remaining articular cartilage in left hip joint is preserved.
28.No evidence of trochanteric bursitis.”[19]
[19] Insurer’s documents p 82.
MRI left hip, 19 April 2021
The report noted:
30.“Small partial thickness tear is suspected at the anterosuperior chondralabral junction. Some blunting of the contour of the superolateral and anterosuperior labrum is noted.”[20]
[20] Claimant documents p 161.
CT scan lumbar spine, 31 May 2021
The report noted:
32.“Normal height of all the lumbar vertebrae is seen. No compression/collapse demonstrated. No wedging is seen.
33.All the intervertebral discs appear normal. No bulge, protrusion or extrusion is seen.
34.The exiting and transversing nerve roots are spared at all the levels. No paravertebral masses are seen.
35.The sacroiliac joints appear normal.”[21]
[21] Claimant’s documents p 244.
CT cervical and lumbar spine, 5 July 2024
The report concludes:
37.“Suggestion of cervical and lumbar paraspinal muscle spasm.
38.No other trauma related findings.”[22]
[22] Claimant’s documents p 286.
X-ray and ultrasound left shoulder, 5 July 2024
The X-ray concluded:
40.“The visualised bones, articular margins and joint spaces define normally.
41.No fracture or destructive bony lesion.
42.No radiodense intra-articular loose bodies.”
The ultrasound concluded:
43.“Unremarkable appearance of the long head of biceps, subscapularis, supraspinatus and infraspinatus tendons. No tendon tear is identified.
44.No significant thickening of the subdeltoid bursa.
45.Acromioclavicular joint and posterior labrum outline normally.
46.Comment: Unremarkable shoulder ultrasound.”[23]
[23] Claimant’s documents dated 4 November 2024, p 105.
Medico-legal evidence
Dr Yiu-Key Ho orthopaedic surgeon
Dr Ho assessed the claimant for the insurer and provided a report dated 12 October 2022.[24]
[24] Insurer’s documents p 21.
He reported there was no complaint of neck pain although she still had some lower back pain. He noted the only significant problem was the left hip injury.
Dr Ho diagnosed a left kidney contusion, low back and neck pain, basically soft tissue strain and a left hip injury with labral and some chondral damage.
He reported it was six months since the left hip arthroscopy and noted the claimant had experienced significant improvement with less pain and more function.
He found the claimant had not reached maximum medical improvement and recommended intensive physiotherapy for a further three to six months.
Dr James Bodel, orthopaedic surgeon
Dr Bodel assessed the claimant by video conference on 29 November 2022 and issued a report dated 16 January 2023.[25]
[25] Claimant’s documents p 95.
He found restriction of neck flexion, extension and rotation in all directions and tenderness in the trapezius muscles at the base of the neck on the left side.
Dr Bodel assessed range of shoulder movement as follows:
Shoulder Movement Active ROM Measured
RIGHTActive ROM Measured
LEFTNORMAL ROM Flexion 180º 140º 180º Extension 50º 40º 50º Adduction 50º 20º 50º Abduction 180º 120º 180º Internal rotation 90º 60º 90º External rotation 90º 60º 90º
Dr Bodel found impingement in the region of the left shoulder but no instability. He found no restriction of elbow, wrist or hand movement. Grip strength was normal, and reflexes were equal. He found no evidence of median or ulnar nerve pathology in either upper limb.
Dr Bodel found tenderness, pain and restriction of movement of the lumbar spine. He found no radiculopathy in the lower limbs. He also noted mild discomfort at the extreme of hip flexion and external rotation but no rateable restriction of hip movement in the left hip.
Dr Bodel diagnosed a musculoligamentous injury to the neck, a rotator cuff injury to the left shoulder, a labral tear of the left hip and a musculoligamentous injury to the lower back. He assessed 5% WPI in respect of injury to the cervical spine, 5% WPI in respect of injury to the lumbar spine and 6% WPI in respect of injury to the left shoulder giving rise to a total 15% WPI.
Dr John Bentivoglio, orthopaedic surgeon
Dr Bentivoglio examined the claimant on 7 March 2024 for the insurer and provided a report dated 12 March 2024.[26] He diagnosed a soft tissue injury to the left shoulder and the neck and a labral tear involving the left hip.
[26] Insurer’s documents p 29.
Dr Bentivoglio found the only ongoing impairment was to the left hip. He reported the neck and shoulder symptoms settled readily. He reported she had left hip pain radiating down the lower limb, decreased movement and crepitation in her hip, and locking in her hip.
Ms Moore had a good range of motion in the lumbar spine and no longer had any symptoms related to the left shoulder or neck.
He assessed a 4% WPI (10% lower extremity impairment (LEI)) of the left hip due to decreased flexion and internal rotation. He found there was no impairment of the left shoulder or the neck.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 1 July 2024 in support of the review.[27] The claimant argued there was a lack of reasoning in Medical Assessor Kuru’s certificate.
[27] Claimant’s documents p 264.
Specifically, the claimant notes Medical Assessor Kuru found a “small range of symmetrical motion” in the neck which the claimant submits falls within diagnosis-related estimate (DRE) II giving rise to a 5% WPI.
The claimant notes Medical Assessor Kuru failed to include his measurements of the claimant’s shoulder movements. His certificate is also noted to be inconsistent where he found the accident caused a “rotator cuff injury to the left shoulder” although in paragraph 18 of his certificate he stated there was no evidence to suggest injury to the rotator cuff of the left shoulder.
Insurer’s submissions
Submissions dated 17 January 2024 and 18 April 2024
The insurer provided submissions dated 17 January 2024 in respect of the permanent impairment dispute[28] and further submissions dated 18 April 2024 addressing additional documents including the report of Dr Bentivoglio.[29]
[28] Insurer’s documents p 6.
[29] Insurer’s documents p 17.
Cervical spine
The insurer notes the lack of complaint of cervical spine symptoms in the contemporaneous treating records and that the CT scan performed during her hospital admission following the accident did not identify any frank injury.
The insurer relies on the opinion of Dr Ho who considered the claimant may have had a soft tissue strain in her cervical spine although he reported her symptoms had gradually resolved. Dr Ho reported Ms Moore displayed a full range of movement with no upper limb neurology.
The insurer noted Dr Bentivoglio found the claimant had no symptoms in her neck and had not undergone any investigations, therefore there was no impairment for that area.
The insurer submits if the claimant sustained injury to the cervical spine, which is not admitted, it was a soft tissue injury which has resolved, and which would not be more than DRE 1 or 0% WPI.
Lumbar spine
Again, the insurer notes the lack of contemporaneous complaint of lower back symptoms.
The insurer notes Dr Ho diagnosed a soft tissue injury and whilst Ms Moore had some lower back pain her condition had largely resolved. Dr Ho noted a good range of movement with no identified neurology.
The insurer submits that Dr Bentivoglio noted Ms Moore had a good range of motion in her lumbar spine.
The insurer submits such findings would account to no more than DRE 1 or 0% WPI.
Left shoulder
Again, the insurer notes the lack of contemporaneous complaint of left shoulder symptoms and notes the claimant has not undergone any investigations in relation to her left shoulder.
The insurer notes no complaint was made to Dr Bhimani, orthopaedic surgeon and nor did she complain of left shoulder pain during physiotherapy attendances. Furthermore, the certificates of incapacity do not diagnose injury to the left shoulder.
The insurer notes that Dr Ho noted no complaints of left shoulder injury or restriction.
Dr Bentivoglio noted the claimant no longer suffered symptoms in her left shoulder and had not had any investigations since leaving hospital, concluding there was no impairment.
The insurer disputes the claimant sustained any injury to the left shoulder in the accident.
Left hip
There is no dispute as to causation of the left hip. The insurer notes the claimant has made a good recovery from the labral repair surgery and submits the assessment relating to the left hip is 0% WPI.
Submissions dated 22 July 2024
The insurer provided submissions dated 22 July 2024 in response to the application for review.[30]
[30] Insurer’s documents p 2.
The insurer concedes the certificate of Medical Assessor Kuru may have contained an obvious error but does not concede the examination findings recorded in respect of the cervical spine could be considered a material error. The insurer notes normal symmetrical range of motion in the cervical spine would be consistent with the findings of Dr Bentivoglio and Dr Ho.
Whilst Medical Assessor Kuru failed to provide his range of motion measurements of the left shoulder the insurer notes he identified normal symmetrical range of motion, meaning 0% WPI would be the appropriate finding.
In relation to the question of whether he found a “rotator cuff injury” the insurer submits this is an obvious error, but not a material error where his examination findings still identify 0% WPI of the left shoulder.
MEDICAL EXAMINATION
History
Ms Moore attended the assessment on 19 November 2024 unaccompanied. She was assessed at 603/379 Pit Street, Sydney by Medical Assessor Alan Home.
Ms Moore denies any prior symptoms of neck, shoulder, hip or back pain. There were no prior injuries. There were no prior motor vehicle accidents.
Details of the accident
On 6 October 2020, Ms Moore was the seat belted front seat passenger in a Kia Hatchback driven by her mother travelling on the Princes Highway in Corrimal when a car from a side street impacted their vehicle on the driver’s side. Her vehicle was pushed to the left and impacted a pole at the level of the front passenger’s side door.
Ms Moore recalls extrusion into the door. She lost consciousness immediately. She recalls that she regained consciousness at Wollongong Hospital. She was told that she had been transferred to the hospital by ambulance.
Ms Moore was admitted overnight for observation and underwent imaging including CT scans of the cervical spine and brain, chest X-ray and pelvis X-ray. It is noted from the clinical notes from Wollongong Hospital that she presented with left flank pain and was found to have microscopic haematuria consistent with bruising of the kidney.
There is no reference in the hospital notes to loss of consciousness or investigation of a head injury.
Ms Moore recalls that following discharge, she became aware of pain in her neck. Although she experienced pain in the left shoulder she was told that this was likely arising from her neck. She recalls injury to her teeth and her lower back and left hip. She recalls that she underwent imaging of her left hip. She was subsequently referred to an orthopaedic surgeon, Dr Bahimani who diagnosed a labral tear and recommended conservative management.
Ms Moore underwent three PRP injections without benefit. She recalls that after further MRI scans in April 2021, she was referred to Dr Anthony Leong who performed a left hip arthroscopy in March 2022.
The surgery was successful in improving symptoms of the left hip. However, Ms Moore reports that she has continued to experience persisting mechanical left hip pain.
She attended physiotherapy until late 2022. She recalls remedial massage. Physiotherapy treatment was directed toward her hip complaint.
Ms Moore confirms that she did not receive any physical therapy directed toward complaints of neck and low back pain.
She currently takes Paracetamol, four tablets most days, Ibuprofen a few tablets per week and Celebrex on occasion.
Current symptoms
Ms Moore states that she experiences intermittent neck pain, of average intensity 4 out of 10. Pain is felt most days. It is most prominent on the left side. She is able to turn her neck freely in each direction.
Ms Moore describes associated occipital headache occurring up to thrice weekly.
Ms Moore reports occasional shooting pain down the left arm into the left little finger that has developed over the last six months.
At the left shoulder, Ms Moore describes a frequent click when she raises the shoulder.
Ms Moore describes pain at the extremes of shoulder elevation. She is unable to lie comfortably over her left side at night due to both shoulder and hip pain.
In the lower back Ms Moore described intermittent pain present much of the day, at an average intensity of 5-6 out of 10. Pain is indicated to be felt in the left lower lumbar region. There is occasional shooting pain extending to the left calf. There is occasional paraesthesia in the lateral three toes of the left foot.
Ms Moore says the back and left leg pain have been present since the accident. She had presumed that the shooting pain down the left leg arose from her hip complaint.
In relation to her left hip, Ms Moore describes local pain in the buttock. There is occasional pain in the groin present when her hip is aggravated. She describes exacerbation of hip pain with prolonged walking and deep crouching, which she avoids. She climbs stairs asymmetrically due to her hip complaint.
Activities of daily living
Ms Moore is right hand dominant. She reports a sitting tolerance of 30 minutes, a walking tolerance of 20 minutes and again she avoids deep crouching. Her sleep pattern is disturbed when she rolls onto her left.
She describes some difficulty with dressing when suffering from a flare-up of hip pain.
She is able to lift up to 5 kilograms. She avoids heavier lifting.
Social history
Ms Moore is single and lives with her mother in a house in Russell Vale. She has no children. She is a non-smoker. At her home she performs dishwashing, bench-height cleaning and places clothes in the washing machine. Her mother performs the heavier domestic chores. They have an external gardener.
Prior to the accident Ms Moore enjoyed weightlifting and playing soccer. She has not resumed those activities.
Vocational history
At the time of the accident, Ms Moore was working as a sales agent for a health insurer. She recalls that she lost two months from work. She lost a further six months from work after the left hip surgery. She has since returned to part-time work at the Australian Tax Office.
PHYSICAL EXAMINATION
On examination, Ms Moore is a 31-year-old standing 165 centimetres and weighting 52 kilograms. She was co-operative throughout the assessment.
Examination of the cervical spine reveals normal spinal curvature without muscle spasm. There was a full range of active cervical spine motion in flexion and extension. There is a full range of active rotation. There is a range of lateral flexion to four fifths normal range of each side. There is no dysmetria.
Tenderness is elicited to palpation overlying the left-sided paravertebral musculature. However, there is no muscle guarding.
Neurological examination of the upper extremities reveals normal upper limb power. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
Right shoulder
Active range of motion (ROM) is measured by goniometer as follows:
67. Shoulder Movements
68. Active ROM Measured
69. RIGHT
70. Flexion
71. 180°
72. Extension
73. 70°
74. Abduction
75. 180°
76. Adduction
77. 60°
78. Internal Rotation
79. 90°
80. External Rotation
81. 90°
Left shoulder
Pain is declared in the superior shoulder girdle with left shoulder elevation.
Active motion is measured by Goniometer as follows:
84. Shoulder Movements
85. Active ROM Measured
86. LEFT
87. Flexion
88. 180°
89. Extension
90. 50°
91. Abduction
92. 150°
93. Adduction
94. 50°
95. Internal Rotation
96. 80°
97. External Rotation
98. 90°
Lumbar spine (lumbosacral)
There is normal spinal curvature. There is no muscle spasm. Active lumbar flexion and extension are performed to full range. Right and left lateral flexion are symmetrically performed to full range. There is no muscle guarding evident. Straight leg raise is performed to 70 degrees bilaterally.
Neurological examination of the lower extremities reveals normal myotomal power in all muscle groups. There is normal sensibility throughout the lower extremities. The deep tendon reflexes are symmetrically preserved.
The circumference of the right calf is 32 centimetres.
The circumference of the left calf is 32 centimetres.
Right Hip
There is a full range of active motion measured by Goniometer as follows:
101. Hip Movements
102. Active ROM Measured
103. RIGHT
104. Flexion
105. 120°
106. Extension
107. 0°
108. Abduction
109. 40°
110. Adduction
111. 30°
112. External rotation
113. 35°
114. Internal rotation
115. 25°
Left Hip
There is mild stiffness and reported pain at end range of internal rotation. There is no wasting of the thighs which are symmetrical in circumference.
There is a full range of active motion measured by Goniometer method as follows:
117. Hip Movements
118. Active ROM Measured
119. LEFT
120. Flexion
121. 110°
122. Extension
123. 0°
124. Abduction
125. 30°
126. Adduction
127. 20°
128. External rotation
129. 35°
130. Internal rotation
131. 20°
Ms Moore walks with a normal gait.
DIAGNOSTIC IMAGING
Ms Moore brought the following diagnostic imaging to the assessment:
CT cervical and lumbar spines dated 5 July 2024
Cervical spine: unremarkable appearances of the vertebral bodies and posterior vertebral elements. No fracture or subluxation. There is a mild disc bulge at C5/6 without appreciable canal stenosis. Normal remaining disc outline. The exit foramina define normally. No suspicious prevertebral soft tissue swelling. Unremarkable atlanto dento and atlanto occipital joints. Straightening of the cervical lordotic curve is present suggesting paraspinal spasm.
Lumbar spine: straightened lumbar lordotic curve. Normal vertebral body height and alignment. Minor disc bulge at L4/5 and L5/S1. No appreciable canal or foraminal stenosis. The facet joints define normally. No fracture or destructive bony lesion.
X-ray pelvis, left hip and ultrasound left hip dated 11 July 2024
X-ray pelvis: normal pelvic symmetry. Both hip joints are within normal limits. No obvious fracture or dislocation. The left hip shows no abnormality. No significant soft tissue changes.
Ultrasound left hip: there is tenderness over the trochanteric bursa with small effusion. The anterior labrum is ill defined, presumably from previous surgery. Normal gluteus minimus, medius iliotibial band and tensor fascia lattae.
MRI left hip dated 29 July 2024
Intact hip joints. no focal defect of the articular cartilage. Small fluid fissuring separating the articular cartilage and labrum superiorly of the left hip. No joint effusion. Preserved femoral heads sporicity. No fracture line or suspicious marrow change. The gluteal tendons are normal. No trochanteric collection.
Comment: A chondrolabral separation is present.
CONSISTENCY OF PRESENTATION
Medical Assessor Home found the claimant to be honest, consistent and straightforward in her presentation at the time of his assessment.
DIAGNOSIS and CAUSATION
Ms Moore was involved in a motor vehicle accident in which the vehicle in which she was travelling was struck on the driver’s side and pushed into a pole, with impact on the passenger aspect of the vehicle.
Cervical spine
The mechanism of the accident could have caused a Whiplash Associated Disorder of the cervical spine. Ms Moore complained of cervical spine pain at Shoalhaven Hospital during her admission following the accident and she listed sprained neck as an injury in the Application for personal injury benefits completed on 23 October 2020
The claimant reports her symptoms are predominantly left-sided, although she reports that over the past six months she has developed nocturnal pain which extends along the post-axial border of the arm into the little finger. This nocturnal pain is not considered to be causally related to the accident and reflects an unrelated local ulnar nerve irritation on clinical grounds.
The recent imaging demonstrates mild disc pathology at C5/6, consistent with early degenerative change.
Whilst there is specific record of complaint pertaining to the cervical spine between 8 October 2020 and 9 April 2021 the Panel, noting no pre-accident complaints pertaining to the cervical spine and having regard to the post-accident contemporaneous complaints, accepts that the accident did cause the claimant to sustain a soft tissue injury to the cervical spine.
Left shoulder
The Panel is satisfied the mechanism of the accident could have caused injury to the left shoulder.
Mr Moore recalled that although she did experience pain extending to the left shoulder, this was considered to be neck pain by her treating doctors. She accepted the pain in her left shoulder was related to her neck pain and made no specific complaint pertaining to the left shoulder.
It was not until the assessment of Dr James Bodel in November 2022 that reference was made to restricted motion at the left shoulder.
As noted, the X-ray and ultrasound of the left shoulder performed 5 July 2024 demonstrated no intra-articular or rotator cuff abnormality.
At the assessment by Medical Assessor Home there was mild restriction of shoulder abduction secondary to neck pain but no intrinsic stiffness of the shoulder and no restriction of motion at other planes.
In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright reminded us that the relevant legal test in relation to causation does not require scientific certainty.[31] The Panel found the claimant to be an honest historian and accepts she experienced pain in her left shoulder, albeit not significant enough to require treatment or investigation until 4 July 2024.
[31] Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372.
Therefore, notwithstanding the lack of complaint pertaining to the left shoulder the Panel has determined that the claimant has developed soft tissue injury to the left shoulder secondary to the soft tissue injury sustained to the neck in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[32]
[32] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
Left hip
There is early documentation of left hip pain following the accident. There is no dispute as to causation of injury to the left hip. The claimant underwent physiotherapy, PRP injections and on 9 March 2022 she underwent a left hip arthroscopy and acetabular labral repair performed by Dr Leong.
The claimant continues to experience left hip pain. At examination, there is restricted motion and internal rotation. The range of active motion in other planes is preserved.
The Panel finds the claimant sustained a labral tear of the left hip caused by the accident.
Lumbar spine
The Panel is satisfied the mechanism of the accident could have caused injury to the lumbar spine.
The Panel notes the lack of contemporaneous complaint where there is no mention of lower back pain in the records of the Ambulance Service or of Shoalhaven Hospital. There is also no record of lower back pain in the Application for personal injury benefits dated 23 October 2022.
The first mention of pain in the lower back was on 21 April 2021 when the claimant consulted Dr Gribble at the East Corrimal Medical Centre.
In the experience of the Panel, it is not unusual for patients suffering from hip pain to also experience back pain that is overlooked during the treatment of a hip complaint.
The Panel finds on the balance of probabilities, and noting that scientific certainty is not required, that the claimant did suffer a soft tissue injury to the lumbar spine caused by the accident. This is plausible given the mechanism of the accident which involved initial trauma to the left flank.
The claimant reports that she experiences pain radiating down the leg to the left foot and intermittent left-sided low back pain.
On examination Medical Assessor Home found there was a reduced range of active left lateral flexion consistent with dysmetria. There were also non-verifiable radicular complaints.
IMPAIRMENT ASSESSMENT
Permanent impairment is defined in the AMA 4 Guides and Part 6 of the Guidelines.
Cervicothoracic (cervical) spine
The clinical presentation is consistent with a DRE Cervico-thoracic Category I impairment rating. There are complaints of intermittent neck pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% WPI rating arises in accordance with the methodology set out in Chapter 3, page 103 of the AMA 4 Guides..
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor vehicle accident and that there may be continuing symptoms, however the relevant Guides rate the associated impairment at 0%.
Left shoulder
There is mild restriction of active abduction of the left shoulder secondary to neck pain.
Impairment of the shoulder is determined using range of motion methods, using figures 38, 41 and 44 of the AMA 4 Guides respectively, as set out below:
145. Shoulder Movements
146. Active ROM Measured
147.
148. Upper Extremity Impairment
149. AMA 4 Guides
150. Flexion
151. 180
152. 0% (Fig 38, pg 43)
153. Extension
154. 50
155. 0% (Fig 38, pg 43)
156. Adduction
157. 50
158. 0% (Fig 41, pg 44)
159. Abduction
160. 150
161. 1% (Fig 41, pg 44)
162. Internal Rotation
163. 80
164. 0% (Fig 44, pg 45)
165. External Rotation
166. 90
167. 0% (Fig 44, pg 45)
168. Total UE Impairment
169.
170. 1% UEI
This upper extremity impairment rating converts to a rating of 1% WPI using Table 3, on page 20 of the AMA 4 Guides.
Lumbosacral (lumbar) spine
The clinical presentation is consistent with a DRE Lumbosacral Category 2 impairment rating. There are complaints of low back pain. There is spinal dysmetria. There are non-verifiable radicular complaints in the left lower extremity with intermittent numbness extending to the lateral three toes of the left foot.
The presentation does not meet the criteria for lumbar radiculopathy set out in Section 6.138 of the State Insurance Regulatory Authority (SIRA) Guidelines. None of the criteria are found at examination
A 5% WPI rating arises in accordance with the methodology set out in at page 102, Chapter 3 of the AMA 4 Guides.
Left hip
There is restricted motion of the left hip and internal rotation. The permanent impairment was assessed using Table 17-9, hip motion impairment, Page 537 of the AMA 4 Guides.
Internal rotation of 20 degrees attracts a mild impairment rating of 2% WPI.
Combined WPI
The combined WPI rating is 5 combined with 2, combined with 1, which equals 8% WPI.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Robert Kuru dated 31 May 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI of 8% which is not greater than 10%:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· left hip – labral tear, and
· left shoulder – soft tissue injury secondary to the injury to the cervical spine.
0
2
0