Moscarello v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 90
•22 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Moscarello v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 90 |
| CLAIMANT: | Alberto Moscarello |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; whole person impairment; 9% not greater than 10%; reasonable cause to suspect medical assessment review is incorrect bilateral anterior shoulder pain; decline in range of motion with repetition of movement; criteria for cervicothoracic DREII; inconsistent range of motion; Held – certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the Certificate of Medical Assessor Farhan Shahzad dated 18 July 2023. The claimant’s whole person impairment of 9% is not greater than 10% whole person impairment. |
STATEMENT OF REASONS
INTRODUCTION
ALBERT MOSCARELLO (THE CLAIMANT) IS A 53-YEAR-OLD MAN WHO WAS INJURED IN A MOTOR VEHICLE ACCIDENT WHICH OCCURRED ON 8 AUGUST 2018. THE CLAIMANT SOUGHT A CONCESSION FROM THE INSURER THAT THE INJURIES SUSTAINED IN THE MOTOR VEHICLE GAVE RISE TO A PERMANENT IMPAIRMENT OF GREATER THAN 10%. THE INSURER DECLINED TO MAKE THIS CONCESSION AND ACCORDINGLY THE MATTER WAS REFERRED TO THE PERSONAL INJURY COMMISSION (COMMISSION) FOR ASSESSMENT OF THE DEGREE OF PERMANENT IMPAIRMENT FOR BOTH PHYSICAL AND PSYCHOLOGICAL INJURY. IN A CERTIFICATE DATED 15 NOVEMBER 2023 MEDICAL ASSESSOR DORON SAMUELL FOUND THE CLAIMANT TO HAVE AN ADJUSTMENT DISORDER WITH ANXIOUS MOOD AND ALCOHOL USE DISORDER WHICH GAVE RISE TO A 5% WHOLE PERSON IMPAIRMENT. THIS CERTIFICATE IS NOT THE SUBJECT OF A REVIEW.
THE CLAIMANT WAS ASSESSED BY MEDICAL ASSESSOR FARHAN SHAHZAD ON 20 MARCH 2023 WHO, IN A CERTIFICATE DATED 18 JULY 2023, WAS FOUND THAT THE INJURIES CAUSED BY THE MOTOR ACCIDENT GAVE RISE TO A PERMANENT IMPAIRMENT OF 7%. THIS WAS CONSEQUENT ON THE FINDING THAT THE CLAIMANT SUSTAINED SOFT TISSUE INJURY TO THE RIGHT SHOULDER WHICH GAVE RISE TO AN IMPAIRMENT OF 7%.
THE CLAIMANT SOUGHT A REVIEW OF THIS DETERMINATION AND IN A CERTIFICATE DATED
29 SEPTEMBER 2023 THE PRESIDENT’S DELEGATE, GOLNAZ MOJTAHEDI, CONCLUDED THERE WAS A REASONABLE CAUSE TO SUSPECT THAT THE MEDICAL ASSESSMENT REVIEW IS INCORRECT IN THE MATERIAL RESPECT. THEREAFTER, THE MATTER WAS REFERRED TO THIS PANEL FOR DETERMINATION.
STATUTORY PROVISIONS/GUIDELINES
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The Panel concluded that it was appropriate to examine the claimant and this took place on Thursday 1 February 2024 at 12.00pm. The examination was conducted by Medical Assessor Les Barnsley and Medical Assessor Sophia Lahz.
The claimant
The claimant attended punctually for the assessment. He walked with a very stiff gait into the consulting room. He is aged 52 and right-handed.
History of the motor accident
He confirmed his involvement in the subject motor accident on 8 August 2018. At the time, he was the restrained driver of a Hyundai i40 and travelling at approximately 60-70kmph when a car cut across his path with resultant front-to-side collision. After the impact, his car was pushed down an embankment and he remembers noting that his door was jammed. He said that all four airbags deployed and thinks there was a brief loss of consciousness.
He does not recall any direct impact of body parts with the cabin interior although he reported bruising of the forearms and legs after the accident.
The police and ambulance did not attend the scene and his vehicle was written off in the accident. He did not attend the hospital.
History and symptoms of treatment following the accident
He explained that there was immediate onset of numbness affecting the middle and ring fingers bilaterally. Not long afterwards, he also developed bilateral anterior shoulder pain, more on the left than the right, and posterior neck pain with a “pulling” character.
Mr Moscarello saw his doctor a few days later (he was unable to recall exactly how long afterwards) and was prescribed painkillers (Panadeine Forte). The doctor also arranged physiotherapy. Unfortunately, he had persistent symptoms despite treatment, specifically neck and bilateral shoulder pain, more on the left than the right, and paraesthesia in both middle and ring fingers.On 3 September 2018, Mr Moscarello underwent a left shoulder X-ray and ultrasound, indicating partial tearing of the articular surface of supraspinatus. There was also mention of superior displacement of the lateral clavicle relative to the acromion from his prior clavicle fracture.
CT of the cervical spine on 24 October 2018 showed shallow C3-4 protrusion and very shallow protrusion at C4-5. There were also early spondylotic changes at C6-7 with mild bilateral narrowing secondary to uncovertebral disease.
Further investigations including MRI of the cervical spine on 30 November 2018 showed C6-7 disc narrowing and a small focal left C45 disc protrusion. A subsequent cervical spine MRI on 7 October 2020 showed slight contact with the exiting left C5 and C7 roots by disc bulge and uncovertebral osteophytes. The treating general practitioner referred the claimant to orthopaedic surgeon Dr Peter Giblin who arranged a CT arthrogram of the left shoulder and also left shoulder steroid injections. Unfortunately, neither of the two injections provided enduring symptomatic relief.
In 2020, Mr Moscarello saw Dr Greggory Burrow, a shoulder surgeon at Liverpool. CT left shoulder on 30 September 2020 was also undertaken showing an unstable non-union of the left distal clavicle. An MRI of the left shoulder on 26 November 2020 was also performed, confirming complete tearing of the left supraspinatus. There was some concern that the 2018 motor accident had aggravated a long-standing distal clavicle fracture incurred at age 16. However, the latter injury had been asymptomatic for decades and according to
Mr Moscarello had not imposed any functional limitations.The medical records of Dr Burrow indicate some discussion about potential surgery incorporating excision of the left distal clavicle with stabilization of the proximal piece although the latter procedure did not proceed.
With the passage of time, he reported that bilateral shoulder symptoms have deteriorated.
Mr Moscarello suggested that the right shoulder had worsened due to overuse (due to presence of the left shoulder injury) and that investigations of the right shoulder have additionally shown “ripping of tendons”.An MRI of the cervical spine and brachial plexus on 11 March 2022 showed multilevel spondylotic changes without high grade canal or foraminal stenoses. The claimant saw
Dr Dowla a neurologist on 14 March 2022, who observed bilateral reduction in shoulder abduction although he found all upper limb reflexes were present. Nerve conduction studies (NCS) and electromyography (EMG) were performed. These indicated bilateral conduction slowing at the median nerves consistent with carpal tunnel syndrome. There was no evidence of cervical radiculopathy. An ultrasound and X-ray of the right shoulder on
11 July 2022 showed acromioclavicular joint (ACJ) degenerative change and partial thickness tearing of the supraspinatus tendon associated with bursitis.An ultrasound of the wrists on 30 August 2022 (done for evaluation of possible carpal tunnel syndromes) showed normal sized median nerves and flexor tendons.
Due to persistent neck pain associated with bilateral paraesthesia of the ring and middle fingers, he was referred to Dr Van Gelder, a neurosurgeon whom he saw on
28 September 2022.Dr Van Gelder noted reduced left shoulder and neck movement associated with radicular symptoms in the absence of any clinical (objective) signs of cervical radiculopathy. However, he felt the radiological changes overall mild and recommended ongoing conservative treatment with encouragement of the patient to exercise and generally increase his physical activity levels.
Whilst the claimant received some physiotherapy, this was overall quite limited because he could not tolerate exercise due to pain. He reported generally to minimise his activity levels as far as possible in order to control pain. He is not currently receiving any treatment aside from pain medication because he is unaware of any other useful medical interventions which could be applied. He also remarked that no one was able to “guarantee” that any particular surgical procedure would provide symptomatic relief. The claimant’s current medications are Nurofen and Panadeine Forte. He told the Medical Assessors that his condition continues to deteriorate. The claimant has been off work since the motor accident and reported that family and friends are currently helping him out. He spends most of his day at home doing little in the way of physical activity. He receives assistance with cleaning and friends help him with meals. He still drives short distances only.
Past medical history
Mr Moscarello reported that his general health was satisfactory before the accident. He had been a steel fixer accustomed to regular heavy lifting of up to 0.5 ton of steel daily. Prior to steel fixing, he had been a carpenter/joiner. He likened himself to a “mule”/work horse used to very heavy work before the motor accident.
He denied any prior problems with his neck or shoulders other than a fractured left collar bone (clavicle) from a football injury at around age 16. He said that he was placed in a figure-of-eight sling for several weeks and the injury resolved fully, leaving him with no functional difficulties. However, he decided not to resume football. Otherwise, he has no history of any musculoskeletal problems predating the subject motor accident. He also reported that he suffers from mild asthma.
The claimant’s past medical history is unremarkable aside from occurrence of the abovementioned distal left clavicle fracture at age 16 whilst playing NRL.
Current Symptoms and function
The claimant complains of frequent sharp pain along the length of the posterior neck, associated with intermittent electrical buzzing sensations. Symptoms spread (sometimes shoot) toward both shoulders L>R over the deltoid regions and upper arms (a large area). He reported an inability to lift either arm overhead, and been having [BG1] difficulties with dressing on this basis. He also experiences daily mild headaches with more severe headaches occurring thrice weekly. He complains of numbness down (mainly) the left arm but also the right, whilst experiencing constant tingling sensations in the bilateral ring and middle fingers. The paraesthesia does not involve either thumbs or index fingers. The neurological symptoms are worse at night when he feels as though his fingers are “exploding”.
Examination
At commencement of the physical examination, the Medical Assessors asked Mr Moscarello to make his best efforts with all requested movements. Otherwise, the examiners would be unable to interpret findings for use in WPI determination. The claimant indicated that he understood these instructions. All measurements were made with a goniometer.
On examination, he was of short stature with substantial central adiposity.
His gait and posture were stiff and movements were guarded, although somewhat more free if he were distracted by conversation. This was put to him although he could not provide any specific reason.
Active range of neck movements during the formal component of the examination were 30 degrees of rotation to either side, lateral flexion 10 degrees to either side, 40 degrees of flexion and 20 degrees of extension. There was dysmetria with disproportionate restriction of neck extension relative to flexion.
His neck moved more freely when he was distracted (as whilst speaking). He acknowledged that this could occur but was unable to explain why when it was put to him.
There was generalised tenderness over the posterior neck, bilateral articular pillars, trapezius muscles more on the left than the right and both ACJ and glenohumeral joints (GHJ) with light palpation. There was no muscle spasm or guarding. On several occasions he flinched and withdrew whilst the neck and shoulder regions were gently palpated.
There were non-verifiable bilateral upper limb symptoms in the C7 distribution (the paraesthesia of the middle and ring fingers).
The upper limb reflexes were all present and symmetrical including biceps, triceps and finger jerks.
There was mild “giving way” weakness at the upper limbs affecting the shoulder and elbow movements, due to proximal pain. There was no focal upper limb myotomal weakness.
There was reduced light touch sensation over the middle and ring fingers without a digital split at the ring finger, with sensory loss extending to the palm but not more proximally.
There was no asymmetrical muscle wasting of the arms. Formal measurement of arm circumference 10cm above the lateral epicondyle was 34 cm on the right and 33.5 cm on the left. Measured 10cm below the lateral epicondyle, forearm circumference was 32 cm on the right and 31 cm on the left, consistent with being right-handed.
Spurling’s test was negative.
The ACJs were tender, more on the left than the right, although there was no evidence of ACJ subluxation.
The claimant was observed to hold himself very rigidly and whilst he appeared to try during the examination, he was nonetheless self-limiting movement due to high pain levels.
Active movements of the shoulders are shown in the following table: Movements were checked twice and measured with a goniometer. Given the (mostly) marked decline in range of motion with repetition of movement, the medical assessors determined that there was no point to making further measurements of the shoulder movements;
Right (degrees) Left (degrees)
| Flexion | 70, 35 | 50, 40 |
| Extension | 10, 10 | 10, 10 |
| Abduction | 50, 20 | 40, 30 |
| Adduction | 10, 10 | 10, 10 |
| External rotation | 25, 0 (arms at side) | 20, 0 (arms at side) |
| Internal rotation | 50, 50 (arm at side) | 50, 50 (arm at side) |
It was put to the claimant that the observed movements for both shoulders were considerably diminished when compared with those obtained by the original Medical Assessor Shahzad during 2023. He reported that with repetitive activity, his shoulder conditions were becoming more symptomatic, the condition worsening, and the “rips in the tendons” becoming larger. Also, increasing pain with repetitive movements caused the range of motion in general to decrease with repetition.
The Medical Assessors found no wasting of the shoulder girdles. Elbow, wrist and hand movements were full bilaterally, and Tinel’s test at the carpal tunnel bilaterally negative. At the thoracic spine, there was a global uniform limitation of flexion, extension and rotation. Flexion and extension were minimal with all movement coming from the hips. Rotation was 1/3 to either side. There was no muscle guarding or spasm. There was no focal thoracic tenderness and there were no signs of thoracic radiculopathy, nor were there non-verifiable radicular complaints at the thoracic spine.
Conclusions
The Medical Assessors accept that the claimant has incurred soft tissue injuries to the cervical spine and both shoulders in the subject motor accident. The contemporaneous GP records support the presence of symptoms in these locations shortly after the subject motor accident.
At examination, the Medical Assessors found dysmetria of the neck in the coronal plane with relatively more restriction of extension than flexion. There were also non-verifiable radicular symptoms in bilateral C7 pattern. However, the examiners did not find the necessary two signs to conclude that cervical radiculopathy is present (paragraph 6.138, page 108, Permanent Impairment Guidelines. [BG2] There were no reflex abnormalities, atrophy, or focal weakness. Foraminal compression test (Spurling’s test) was negative in lieu of upper limb nerve tension tests which were unable to be completed due to his lack of shoulder movement.
The criteria (dysmetria, non-verifiable radicular complaints) are met for cervicothoracic DRE category II or else 5% WPI due to the motor accident (page 104, AMA4, Table 6.7, page 103, Permanent Impairment Guidelines.
Turning to the shoulders, the Medical Assessors found that Mr Moscarello’s active shoulder movements have markedly decreased in the last 12 months since Medical Assessor Shahzad saw him in 2023. Medical Assessor Shahzad found right shoulder flexion 150 degrees and (140 degrees left) and right shoulder abduction 150 degrees and (130 degrees left).
The Medical Assessors observed that the claimant was apprehensive regarding execution of normal movement in case of substantial pain provocation. He displayed clear fear avoidance of activity on the basis of eliciting severe pain.
The Medical Assessors are aware that whilst scans of the shoulders have indicated complete supraspinatus tearing on the left associated with a chronic non-union of the distal clavicle (remote injury at age 16, aggravated by the accident) and partial supraspinatus tearing on the right, that such findings may in fact still be associated with a normal range of motion and few symptoms. By the same token, such findings may sometimes also be symptomatic whilst causing limitation of movement.
As noted, the claimant’s demonstrated range of shoulder movement at the Panel medical [BG3] examination was markedly reduced compared the earlier findings of Medical Assessor Shahzad. This was put to him, and he was given the opportunity to respond.
However, the Medical Assessors found no plausible medical reason to account for deterioration of movement in the claimant’s shoulders in recent months. He demonstrates no muscle spasm or guarding at the neck capable of limiting shoulder movement, there were also no clinically demonstrable abnormalities of peripheral nerve, spinal cord or nerve roots that might explain the bilateral deterioration in shoulder movement occurring over several months.
The Medical Assessors have found that whilst the claimant was cooperative during the examination, there was nonetheless voluntary limitation of movement on the basis of increased pain and fear avoidance of normal activity/movement. There was also significant variability of movement between repetitions so the movements cannot be regarded as consistent and well stabilized for use in permanent WPI determination.
The Medical Assessors accept that there were shoulder soft tissue injuries affecting the rotator cuff and that in addition, an old injury of the distal clavicle was symptomatically aggravated by the subject 2018 motor accident.
Paragraph 6.50 e of the MAS PIG says that if range of motion is inconsistent, it cannot be used as a valid parameter of impairment evaluation. Medical assessors should then use discretion in considering what weight to give other available evidence to determine presence of impairment.
The Medical Assessors found it inappropriate to use the observed active range of shoulder movement to determine WPI because it was variable and very restricted, internally inconsistent, inconsistent with prior examination, and not medically plausible in terms of the demonstrated underlying pathology seen on imaging.
The Medical Assessors decided to assess WPI of the shoulders by analogy. Referring to Table 19, page 59 AMA4 “Joint Crepitation” there is 10% joint impairment for mild, inconstant crepitus. Applying this to the ACJ, using table Table 18 page 58 AMA4, disorders of the ACJ can result in a maximum of 25% upper extremity impairment (UEI). Therefore there is 10% of 25% i.e. 2.5% UEI or else 3% UEI (rounded) for each shoulder. This represents 2% WPI (Table 3, page 20 AMA4) each for the right and for the left shoulders.
Following combination of 5% WPI for the cervical spine, 2% WPI for the left shoulder and 2% WPI for the right shoulder, there is 9% WPI according to the Combined Values Chart of AMA4.
In summary, the claimant has 9% WPI due to the subject motor accident.
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