Narse v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 162
•19 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Narse v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 162 |
| CLAIMANT: | Elias Narse |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 19 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26; claimant involved in high-speed collision with car emerging from a side road onto a highway; claimant alleged injuries to neck, back, shoulders, wrists and knees; Medical Assessor (MA) Menogue assessed whole person impairment (WPI) at 10%; claimant had asserted he developed carpal tunnel syndrome in both wrists as a result of the accident; insurer paid for the surgery to both wrists; MA had found carpal tunnel not caused by the accident and no impairment to wrists in any event; Panel asked parties to confer and attempt to narrow the issues and confirm whether all injuries needed to be assessed or whether the Panel could confine its Review to the bilateral wrist injuries; claimant did not concede no injury or no impairment and sought all injuries be reassessed; medical re-examination undertaken; Held – neck injury resulted in 5% WPI, and 1% impairment in each shoulder; back injury found not to be caused (and 0% in any event), wrist injuries not caused (and 0% in any event), chest injury no assessable impairment, left knee injured and 0% and right knee no injury but 0% in any event; decision of Nguyen v Motor Accidents Authority of New South Wales and Anor followed in respect of shoulder impairment; certificate of MA revoked as certificate included actual percentage (10%) and Panel found a different percentage (7%). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Menogue dated 30 August 2023. 2. Certifies that the degree of the claimant’s permanent impairment that has resulted from the injuries caused by the motor accident on 26 June 2019 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Elias Narse was involved in a motor accident on 26 June 2019. He was driving home from work after 9.00pm on the Lakes Way near Forster at 100km when a car pulled out in front of him. A t-bone type collision occurred.
The claimant says he injured his neck, back, shoulders, wrists and knees in the accident and he made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle Mr Narse says caused his accident. NRMA has admitted its driver caused the accident.
At the appropriate time, Mr Narse made a claim for compensation (lump sum damages). A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Narse referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Menogue determined Mr Narse did not have a WPI of greater than 10% (he found Mr Narse to have a WPI of 10% exactly). The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 3 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on the same day, the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Elias Narse’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law as modified by the MAI Act, an injured person can be awarded damages for both 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 Part 4, 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% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
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.
Permanent impairment assessment
The degree of an injured person’s permanent impairment resulting from their injuries is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[3] 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 of the AMA4 Guides is relevant.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Menogue’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26.
Part 5 of the Personal Injury Commission Act 2021 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue examined the claimant on 15 August 2023 and issued his certificate on 30 August 2023.
The Medical Assessor noted at [2] he was referred the following injuries to assess:
(a) cervical spine (soft tissue injury with pain radiating down the left arm);
(b) chest (fractured ribs on the right and a fractured sternum);
(c) knee (soft tissue injuries to both knees);
(d) lumbar spine (soft tissue injury with radiating and increasing sciatic pain);
(e) shoulder (soft tissue injuries to both shoulders), and
(f) wrist (carpal tunnel in right wrist).
Medical Assessor Menogue records at section [3] of his decision that there was no submission provided by the claimant. The Panel confirms that while it has the insurer’s submissions lodged with the original application for assessment, no submissions from the claimant have been put before the Panel other than the submissions in support of the Review.
The Medical Assessor records at [8] that the claimant migrated to Australia at five years of age and undertook his schooling here after which he worked in retail and hospitality mainly as a chef. The claimant has three children and lives with his ex-wife on the mid north coast.
The claimant denied any previous injuries to his neck, back, arms or legs before the accident, but sustained a work-related right shoulder injury in the 1990s which he said had resolved.
At [9] Medical Assessor Menogue recounts a history of the accident:
(a) the accident occurred at 9.20pm on 24 June 2019;
(b) the location of the accident was a highway where the claimant was driving at 100km;
(c) a vehicle entered his lane and a collision occurred between the claimant’s car and the driver’s side of the other car;
(d) airbags deployed and vehicle was towed from the scene, and
(e) the claimant was taken by ambulance to hospital, and he was discharged the next day.
It is recorded at [9] that the claimant saw Dr Fernando, general practitioner (GP), at Tuncurry on 26 June 2019. While this doctor did not handle Compulsory Third Party (CTP) claims, he completed the Certificate of Fitness at that time. The claimant next saw Dr Clemensen on 2 September 2019 and was referred for physiotherapy and counselling.
The claimant saw a specialist (Dr Dayoub) in October 2019 who diagnosed bilateral carpal tunnel syndrome in the wrists and surgery occurred on 25 September 2020 to the right wrist and on 20 November 2020 to the left wrist.
The claimant is said to have seen another specialist due to neck pain, but the Medical Assessor says there was no report from this doctor or the MRI scan report which allegedly showed disc bulges.
Medical Assessor Menogue records at [12] the claimant’s current symptoms:
(a) cervical spine – intermittent discomfort into the right trapezius and scapular region; shooting sensation which is intermittent in the right upper arm and forearm and intermittent numbness in all five fingers of the right hand;
(b) chest – ongoing discomfort over the 4th and 5th ribs but no sternal discomfort;
(c) left upper limb discomfort but no trigger was identified and there was no complaint of left shoulder symptoms;
(d) right shoulder the claimant did not identify “isolated” right shoulder pain but discomfort spreading from his neck into the right shoulder;
(e) right and left wrists – no symptoms;
(f) lumbar spine – intermittent pain which can spread to the right buttock then involve the entire thigh to the knee, and
(g) left knee – no symptoms.
The examination findings are recorded at [14]-[19] as follows:
(a) cervical spine – discomfort on palpation at C6 and over the right C7/T1 region. No guarding, spasm and no dysmetria (there was reduced range of motion, but it was symmetrical). There was no abnormality in reflexes, tone, wasting or tenderness in the upper arms and no evidence of dermatomal sensory disturbance;
(b) lumbar spine – some discomfort on palpation at T8 and L4/5 facet regions. There was no guarding or spasm, a small and symmetrical restriction of movement. Nerve root tension signs were normal and there was no loss of power, no wasting, normal reflexes and no sensory disturbance in a dermatomal distribution;
(c) shoulders – there was no rotator cuff or spinate muscle wasting and no tenderness in the acromioclavicular joints. Measurements of motion revealed normal flexion and extension and a 10 degree restriction of movement in the other movements;
(d) wrists – wrist movement was normal with no loss of power or sensation, and
(e) lower extremities – no wasting, joint or bony abnormality. Knees were normal with mild restriction of right flexion.
At [22] Medical Assessor Menogue reports his findings on causation:
(a) the claimant injured his neck, sternum and lumbar spine based on hospital records and the claimant’s history;
(b) the hospital notes say “no fracture to ribs”;
(c) there was no evidence to establish causation between the accident and the carpal tunnel syndrome. This is a degenerative condition and there is no contemporary evidence of trauma to the wrists;
(d) there is no evidence of a frank or specific injury to the shoulder although there are shoulder symptoms referrable to the neck injury, and
(e) there is no evidence of any knee injury.
At [24] Medical Assessor Menogue found no impairment to the resolved fractured sternum and assessed a 5% impairment to both the cervical and lumbar spine resulting in a 10% WPI. The Medical Assessor found that the claimant satisfied the requirements of a diagnostic related estimate (DRE) category II.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the Medical Assessor’s finding that the bilateral carpal tunnel syndrome was not caused by the accident arguing that he did not address whether the accident had contributed to the condition. The claimant relies on reports of Dr Shahzad and Dr Poplawski who did relate the development of the syndrome to the accident.
The claimant also relies on the fact that Dr Dayoub sought approval from the insurer for surgery to the claimant’s wrists and that the insurer has approved the surgery in support of his arguments as to causation.
Insurer’s submissions
The insurer submits that the Medical Assessor did address causation including contribution.
The insurer also suggests that as there was no restriction of movement, there is no impairment resulting from any carpal tunnel injury in any event.
Procedural matters
On 5 December 2023 the Panel issued directions to the parties noting the limited number of documents that had been provided with the application for Review and the reply. The claimant was directed to provide an indexed and paginated bundle of documents by 20 December 2023 and the insurer was to provide its bundle by 5 January 2024.
The insurer’s bundle comprising 495 pages was provided on 21 December 2024 and the claimant’s bundle comprising 285 pages was provided on 9 January 2024.
The Panel met on 11 January 2024 and issued directions the next day. In the spirit of encouraging agreement and, in accordance with s 42 of the PIC Act ensuring that the “real issues in dispute” are determined, the Panel asked:
(a) the claimant to confirm whether he alleged both the right and left wrist were injured in the accident;
(b) the insurer to confirm whether causation of the carpal tunnel condition was in dispute noting that the insurer had paid for the carpal tunnel surgery;
(c) the parties to confirm impairment of the wrists would involve both range of motion assessment and scarring, and
(d) noting the submissions dealt only with the wrist injuries whether the other injuries assessed were disputed and whether those injuries needed to be reassessed.
The parties were taken to some of the entries in the pre-accident medical records of Dr Lim and asked to agree on any additional details from those entries and confirm there were no previous carpal tunnel symptoms.
Additional documents were also requested.
The insurer responded and:
(a) confirmed that, on the basis of Dr Dayoub’s reports NRMA paid for the carpal tunnel surgery in September and November 2020. The insurer submits that Medical Assessor Menogue found no evidence to link carpal tunnel surgery to the accident-related injuries and that the claimant has recovered in any event;
(b) agrees that the Panel is to assess range of motion in both wrists and the scarring of both wrists;
(c) says that the chest, shoulders and knee do not need to be assessed;
(d) does not accept the clinical findings and assessment of Medical Assessor Menogue regarding the cervical spine but does accept his clinical findings and assessment of 5% WPI for the lumbar spine injury, and
(e) suggests the 24 March 2016 entry in Dr Lim’s notes should read “hip and back still painful cont [continue] with Tramal.” The insurer suggested the notes be returned to Dr Lim with a request for them to be transcribed. The insurer did not respond to the request from the Panel that it confirm there is no mention of carpal tunnel symptoms in these records.
The claimant responded on 2 February 2024 and submitted that both wrists were injured in the accident. The claimant did not address the Panel’s request that attempts be made to narrow the injuries in dispute and the claimant confirmed the suggested transcript of the relevant notes.
The claimant provided additional documents which the Panel has considered.
The Panel formed the view that, in the light of the significant disputation between the parties and in particular the further submissions provided by the claimant that all of the injuries assessed by Medical Assessor Menogue should be re-assessed.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant provided, at the request of the Panel, a copy of the police report.[8] It confirms that the accident occurred at approximately 100 km/h on the Lakes Way near Forster when the claimant was heading north and a vehicle turned from a side road colliding with the claimant’s vehicle. The claimant’s vehicle was spun around, and the claimant had to be cut from the vehicle.
[8] Page 5 of the claimant’s further bundle of documents.
The claimant’s application for personal injury benefits (claim form)[9] was signed and dated 4 July 2019. The accident had happened 10 days beforehand and this description was provided, “driving along the main road, when out of nowhere a car rolled out in front of me.”
[9] Page 22 of the insurer’s bundle.
The claimant listed his injuries as a fractured sternum and four cracked ribs, ligament damage to the left knee, whiplash injury to the neck and mental trauma. The Panel notes that at this time Mr Narse does not mention any injury to his lower back or to his wrists.
The claim form indicates Mr Narse was taken to Port Macquarie Hospital and discharged the next day,[10] he denied any previous relevant injuries, accidents or conditions and said he was a cleaner earning $300 a week and that he was in receipt of jobseeker benefits.
Medical records and treatment reports
[10] The discharge summary is found at page 12 of the claimant’s further bundle.
Pre-accident records
Pre-accident records have been provided by Dr Lim of Guildford which commence on 22 March 2006.[11] While these are handwritten and difficult to read it would appear that there were relevant attendances as follows:
(a) 15 September 2015 complaints of pain as a chef and Tramal (200mg) and Panadeine Forte and knees appear to be mentioned;
(b) 16 November 2015 – the claimant had been “involved in MVA” reversing out of a driveway and taken to Blacktown hospital – complaining of dizziness, arthralgia, lower back pain, chest pain, neck stiffness. “Was given Oxycodone in hospital”. It appears Tramal may have been prescribed.
The discharge summary from that accident notes the airbags deployed but there was minimal damage to the vehicle. The claimant complained of pain on the left side of the chest and abdomen. His neck and chest were scanned and soft tissue injuries were considered;
(c) 24 March 2016 – “hip and back still painful cont with Tramal”. The insurer has suggested that the word “cont” is short for continue. In the light of the previous prescription, the Panel accepts this suggestion and is of the view it makes clinical sense;
(d) 25 September 2017 – anger management;
(e) 30 May 2019 – knee playing up in water – requests Tramadol 200mg;
(f) 20 July 2019 – “moved to Forster involved in MVA 3 weeks ago a car pulled out in front of him taken to Port Macquarie Hospital … fractured sternum. Before pain right knee, now left knee, and neck stiffness”, and
(g) 15 December 2022 – “complains of PTSD unable to see ?? Cannabis and THC – advised to contact Wentworthville Ramsay Clinic”.
[11] Page 372 of the insurer’s bundle.
First responders and hospital
The ambulance report[12] documents complaints of central and left sided chest pain and right sided neck pain.
[12] Page 110 of the insurer’s bundle.
The discharge summary from Port Macquarie Hospital[13] records (on page 1) pain on the right side of the neck and left hip pain. Under the heading “tertiary survey” are the following:
[13] Page 2 of the insurer’s bundle and page 12 of the claimant’s further bundle..
(a) no head injury;
(b) no cervical spine tenderness and a full range of motion;
(c) minimal tenderness right lower paraspinal muscles over the seat belt area;
(d) anterior mid sternal tenderness and an undisplaced sternal fracture;
(e) no bruising of the abdomen and a stable pelvis;
(f) upper limbs – no bone or joint tenderness and a full range of motion of shoulder elbow and wrists with normal power and sensation present and equal;
(g) lower limbs – no bone or joint tenderness and full range of motion of hips, knees and ankles;
(h) back – no spinal tenderness on palpation – thoracic lumbar spine cleared clinically, and
(i) neurology – no gross neurological deficits.
There is a reference to the radiology and in particular a CT scan of the chest which showed no acute rib fractures and left knee. The cervical, thoracic and lumbar spines were also scanned, but no fractures were reported.
Dr Fernando – Forster Tuncurry Medical Centre
Notes have been provided from the Forster Tuncurry Medical Centre ending on 15 October 2021. Dr Fernando has provided no pre-accident records, but the claimant told Medical Assessor Gibson at the re-examination that he had not attended any medical practices in Forster before the accident.
The first Certificate of Fitness, signed by Dr Fernando[14] and dated 2 July 2019 identifies the only injury as a sternal fracture. There is limited information from the doctor on the form. For example, he does not identify when the claimant first attended the practice. The claimant’s occupation was stated to be chef/cleaner.
[14] Page 32 of the insurer’s bundle.
A second certificate signed by Dr Fernando and dated 11 July 2019[15] again refers to a sternal fracture but also notes psychological symptoms developing with this comment “anxious following accident.”
[15] Page 35 of the insurer’s bundle.
The Panel notes the claimant then returned to see Dr Lim in Sydney on 20 July 2019 according to his notes and had imaging studies performed on 25 July 2019.
Dr Clemensen – McIntosh Medical Forster
The notes of Dr Clemensen then commence on 3 September 2019.[16] The claimant was referred for physiotherapy and was prescribed an antidepressant (Mirtazapine). The first certificate of fitness signed by Dr Clemensen is dated 24 September 2019[17] and says the claimant first attended the practice on 2 September 2019 and included a diagnosis of post-traumatic stress disorder as well as a whiplash type injury to the cervical spine. There are further certificates of fitness all of which note post-traumatic stress disorder and whiplash as the only two injuries sustained in the accident. There also wrist references as the carpal tunnel symptoms emerge.
[16] Page 23 of the claimant’s further bundle.
[17] Page 38 of the insurer’s bundle.
On 3 September 2019, Dr Clemensen referred the claimant to Macintosh Physiotherapy for exercise and rehabilitation program and referred to a sternal fracture and whiplash type injury.[18] The first allied health recovery request (AHRR) dated 6 September 2019[19] was for physiotherapy and it notes a whiplash injury and sternal fracture and refers only to neck pain and pain in the sternum. The second AHRR dated 24 October 2019 also only mentions the neck and sternum (which had improved).
[18] Page 186 of the claimant’s bundle.
[19] Page 15 of the insurer’s bundle.
On 6 January 2020 Dr Clemensen noted on a certificate of fitness[20] that the claimant had been referred for nerve studies as the clamant was dropping utensils at work “and has bilateral cervical radicular paraesthesia.” On that day the claimant was referred to Forster Tuncurry Physiotherapy for further treatment[21]. The particular injuries are not specified.
[20] Page 16 of the claimant’s additional bundle.
[21] Page 200 of the claimant’s bundle.
The records of Dr Clemensen refer to post-traumatic stress and low back pain on 2 March 2020 and the claimant was referred for a lumbar spine CT scan. The results were discussed on 7 April 2020 and the comment recorded “more degenerative.”
In mid to late 2020 the claimant continued to complain of depressive symptoms and carpal tunnel symptoms and he was reluctant to start exercise or rehabilitation.
The insurer obtained a functional capacity evaluation on 27 July 2020 from Mr Parker (rehabilitation consultant).[22] The claimant complained of neck stiffness and restriction of motion, carpal tunnel symptoms in both hands, bilateral shoulder pain, chest pain, lower back pain to the right, right sided hip pain and left knee stiffness and tightness. Mr Parker’s conclusion was the claimant was capable of performing sedentary and light work primarily due to his physical capacity. It is recorded that the claimant was, at the time of the accident a sales representative for a security firm and was required to travel. He recommended a return to work plan, exercise physiology led gym strengthening program and review with the treating GP.
[22] Page 121 of the insurer’s bundle.
On 17 September 2020, Dr Clemensen referred the claimant to Kinetic Medicine for a graded exercise program.[23]
[23] Page 182 of the claimant’s bundle.
The first bundle of notes from Dr Clemensen end on 11 December 2020. There are no complaints of specific shoulder pains, knee pains and very few musculo-skeletal complaints. The claimant was seeing his doctor about once a month.
On 22 January 2021[24] Dr Clemensen noted the claimant had returned to work for a day which caused lower back pain and the claimant was deconditioned and had stopped all medication.
[24] The second bundle of notes is found at page 22 of the claimant’s further bundle.
Mr Maloney, exercise physiologist wrote to Dr Clemensen on 25 January 2021.[25] He was treating right hip and lower back pain. At that time the claimant was doing some shifts as a chef but was apprehensive and Mr Maloney thought he might need psychological support.
[25] Page 129 of the insurer’s bundle.
Mr Kam, exercise physiologist from Pro Fit Rehab provided a report to NRMA dated 16 February 2021 following a referral by Dr Clemensen.[26] He has a history from the claimant that immediately after the accident “he felt his neck and lower back paralysed and his sternum fractured.” The claimant reported having attempted to return to work but that he struggled with lower back pain and his psychological injuries. Mr Kam recorded range of motion in the wrist, elbow, shoulders and neck. There was 170 degrees of range of abduction in the shoulder and only 90 in the left. There were also complaints of sharp electrical pin in both knees running up to the lumbar spine.
[26] Page 131 of the insurer’s bundle.
On 5 March 2021 the claimant was referred to Dr Gupta for “opinion and management of his back pain following a MVA.”[27]
[27] Page 120 of the insurer’s bundle.
On 5 March 2021 Dr Clemensen records Mr Narse’s lower back pain had worsened. On 7 May 2021 Dr Clemensen reports the claimant’s condition was unchanged and he was self-medicating with cannabis causing paranoia which was not benefiting his functionality.
Dr Gupta, rehabilitation medicine specialist provided a report to Dr Clemensen dated 19 March 2021.[28] He had a report from the clamant that since the car accident the clamant had been finding it hard to mobilise long distances. His back seized and he struggled from sit to stand and with bending and lifting things from the floor. He said he could walk the dog only a few kilometres. The claimant was examined and neurologically he was normal in the upper limbs with some complaints of numbness in his hand, which Dr Gupta did not think was related to the accident. Dr Gupta recommended facet joint injections and an MRI of the lumbosacral spine. He suggested weight loss, physiotherapy and hydrotherapy. The Panel notes there does not appear to be any further reports from Dr Gupta.
[28] Page 67 of the claimant’s further bundle.
On 10 July 2021 Dr Chesterman completed a form[29] in support of the release of the claimant’s superannuation noting “post-traumatic stress disorder, fracture sternum, degenerative lower back pain.”
[29] Page 88 of the claimant’s additional bundle.
Dr Abdelhaleem completed the medical certificate in support of an application to AMP for payout of his superannuation on the basis he was unable to work. The certificate is dated 2 August 2021[30] and refers to post-traumatic stress disorder, a fractured sternum and a whiplash injury. He noted back pain, neck pain, right hip pain, depression and post-traumatic stress disorder and that the claimant was unable to work.
[30] Page 69 of the claimant’s additional bundle.
For the remainder of 2021 there are complaints of lower back pain, but the primary concern recorded in the notes was the claimant’s mental health.
The claimant’s mental health appeared to deteriorate in early 2022. The claimant was increasing his drinking and gambling, but he had good insight into his problems and admitted himself to a private hospital for treatment. There is no mention of any physical symptoms or musculo-skeletal issues in 2022.
On 27 March 2023 a new GP, Dr Van Rensburg of Macintosh Medical saw the claimant and took a history of the claimant’s mental health issues and noted pain in the neck, ongoing migraines and pain radiating down the right arm and losing grip in his hands. On 24 April 2023 she organised a cervical spine MRI due to the neck pain.
On 24 April 2023 Dr Van Rensburg referred the claimant to Dr Little, neurosurgeon at North Shore Private Hospital[31] for consideration of “pain in his neck and ongoing migraines which started 3 months ago. The pain is radiating pain down right arm and losing grip in hands on occasion. He has no vision loss …” Dr Van Rensburg also refers to a car accident four years ago and a compensation claim.
[31] Page 119 of the claimant’s bundle.
Dr Little replied on 5 June 2023[32] noting that he claimant had “been troubled by multifocal joint and body pain” since his accident. He also reported the claimant had carpal tunnel surgery on both arms “which he said was of no benefit.” The claimant complained that his lower back pain was worse, then pain in the right thoracic region, then the right arm, then his right leg. The claimant also complained of neck pain similar to the thoracic pain.
[32] Page 128 of the claimant’s additional bundle.
Dr Little refers to the MRI of the cervical spine saying it showed degenerative changes, no cord problems, and no evidence of nerve root compression. He notes the claimant “is neurologically intact.” Dr Little thought facet joint-injection therapy would be useful and requested a bone scan. There are no further records or reports from Dr Little.
Carpal tunnel syndrome
On 24 September 2019 the claimant was referred by Dr Clemensen to Dr Geevasinga for nerve conduction studies.[33] The terms of the referral include:
“He was involved in a high speed MVA and has a whiplash type injury to his neck. He works as a chef and has started dropping utensils while at work which is associated with bilateral parasthesia into both arms.”
[33] Page 191 of the claimant’s bundle and page 15 of the claimant’s further bundle.
The nerve conduction studies were undertaken on 18 October 2019[34] and concluded:
“There is neurophysiological evidence of bilateral median nerve dysfunction at the level of the wrists, graded mild to moderate on the left side and moderate on the right side.”
[34] Page 124 of the claimant’s bundle.
On 22 October 2019, the claimant was first referred to Dr Dayoub, general surgeon in Forster, for the bilateral carpal tunnel syndrome and the left was said to be worse that the right[35]. On 14 August 2020, the claimant was referred again to Dr Dayoub[36] “for opinion and management of his carpal tunnel syndrome.”
[35] Page 192 of the claimant’s bundle.
[36] Pages 122 and 172 of the claimant’s bundle.
Dr Dayoub wrote to the claimant’s GP on 27 August 2020 confirming the diagnosis and advising that the claimant had been booked in for surgery. A letter was sent to NRMA by Dr Dayoub seeking approval for the payment for the right sided surgery.[37]
[37] Page 126 of the claimant’s bundle.
On 18 September 2020 NRMA wrote to Dr Dayoub[38] approving the surgery (to the right wrist) on the basis it was “reasonable and necessary.”
[38] Page 127 of the claimant’s bundle.
The operation report confirms the procedure occurred on 25 September 2020 and the findings were:
“Severe carpal tunnel syndrome and very thick facia; very oedematous nerve; very prominent muscle of the hand, except the thenar muscle is slightly wasted.”
Dr Dayoub wrote to Dr Clemensen on 15 October 2020 advising[39] that the operation had gone well, and the claimant was “very pleased with the outcome and he states all of the numbness has gone.”
[39] Page 129 of the claimant’s bundle.
Similar correspondence was sent concerning the left carpal tunnel release surgery which NRMA approved on 29 October 2020 on the basis it was “reasonable and necessary.”
The operation report confirms the procedure took place on 20 November 2020 and the findings were said to be:
“Very tight carpal tunnel; oedematousmedical nerve; very prominent muscle of the hand.”
Dr Dayoub wrote to Dr Clemensen on 3 December 2020 recording that “Mr Narse has nil complaints and is very pleased with the outcome” of the left carpal tunnel release. Neurological and muscle examination by Dr Dayoub was normal.
Psychiatric condition
On 3 September 2019 Dr Clemensen referred the claimant to Ms van Kessel for treatment of the claimant’s post-traumatic stress disorder. On 16 September 2019 Zest Clinical Psychology sought payment for services from the insurer in an AHRR and a second request was made on 16 December 2019 due to a “major depressive episode.”
On 5 May 2020, Dr Clemensen of Forster referred the claimant to Dr Estibeiro for opinion and management of an anxiety disorder and PTSD following the car accident. Dr Clemensen documents a pre-accident history of sleep apnoea in 2015.
There is a bundle of documents evidencing an admission to the psychiatric unit of Manning Base Hospital in early April 2023. The triage note reads as follows:
“Male aged 52 years, 8 months presents with Mental Health Disorder, Pt presented with mental health concern, ceased duloxetine in January. Increasing cigarette and cannabis intake though nil cannabis for 3/7 unable to access. Angry outburst today post denial of MRI by insurance company. Worried he will hurt somebody. Hopeless helpless thoughts, denies suicidal thoughts. Struggling to access mental health services in community.”
In the claimant’s additional bundle are a number of referrals and records relevant to the claimant’s mental health state. The most recent report is from Dr Adil and is dated 11 September 2023.[40] Dr Adil says he has prescribed three different antidepressants since 2021, the claimant does not want electro-convulsive therapy and was keen to access transcranial magnetic therapy. He presented as “severely depressed.”
[40] Page 112 of the claimant’s additional bundle.
Radiology
Dr Lim’s records include Blacktown Hospital radiology from 14 November 2015.[41] A CT scan of the neck noted no fracture or dislocation and degenerative changes including a large anterior osteophyte at C6/7. There were no significant disc protrusions. Chest, abdomen and pelvic scans revealed no abnormalities.
[41] Page 380 of the insurer’s bundle.
On 25 July 2019 is an X-ray of the claimant’s chest and ultrasound of the claimant’s knee.[42] No abnormality was detected. While the radiology was performed in Forster, the report was directed to Dr Lim in Guildford (Sydney).
[42] Page 379 of the insurer’s bundle.
Dr Gupta in Forster requested an MRI of the claimant’s lumbar spine which was done on 14 April 2021. The report[43] identifies “very minimal disc bulges without significant neural impingement. Mild facet joint arthropathy at L4-5.”
[43] Page 53 of the claimant’s bundle and page 37 of the claimant’s further bundle.
Dr Ragatt from the psychiatric department of Manning Base Hospital arranged for the claimant to have an MRI of the brain and cervical spine during the claimant’s admission on 4 April 2023 for mental health issues. The report[44] indicates there was disc desiccation throughout the cervical spine. There were minor disc bulges at C3-4 and C5-6 but with no central canal narrowing however there was foraminal narrowing at C3-4, C4-5 and C5-6 due to spondylosis. There was no brain abnormality seen.
[44] Page 55 of the claimant’s bundle.
The Panel has not been taken to any radiological imaging of the claimant’s shoulders and Mr Narse was not aware of any imaging studies of his shoulders.
Medico-legal and insurer reports
Physical
Dr Poplawski, orthopaedic surgeon provided a report dated 13 July 2021 to the claimant’s lawyers.[45] The claimant gave Dr Poplawski a history of immediate pain in the neck and lower back and to the sternum and left side of his chest. The Panel notes there was no mention of immediate pain in the knees or shoulders.
[45] Page 469 of the insurer’s bundle.
The claimant complained of pain in the neck radiating into the left arm with paraesthesia in the hand which has settled. The claimant gave a history of carpel tunnel syndrome developing “over a period of time” and that the claimant had surgery. The claimant complained of low back pain radiating into the buttocks and thighs. He said the chest pain had settled. He reported mental health issues.
Dr Poplawski says there was no past history of note.
On examination:
(a) there was dysmetria in the cervical spine but no neurological complaints in the upper limbs;
(b) shoulder movements were essentially normal with some pain;
(c) there was a full range of motion in the hands, elbows and wrists, and
(d) in the lower back there was also dysmetria, but no neurological issues recorded in the lower limbs.
Dr Poplawski allocated 2% WPI for right shoulder restriction of motion which when added to 5% for each of the neck and the back provided a total of 12%.
In a second report dated 5 August 2021,[46] Dr Poplawski confirmed there was no impairment in the wrist based on the range of motion method and that the feeling of swollen and thickened fingers in the right hand had returned to normal. He suggested a face-to-face examination if these symptoms continued or there was weakened grip strength.
[46] Page 478 of the insurer’s bundle.
The insurer arranged the claimant to be seen by the Vocational Capacity Centre. In a report dated 20 December 2021,[47] Ms Stewart, physiotherapist, made an overall finding was that the claimant had ongoing dysfunction in the injured parts of his body and while he was not fit to return to his pre-accident job as a chef, he was found fit to return to light or sedentary work.
[47] Page 193 of the insurer’s bundle.
Ms Stewart undertook a review of the available records, and the claimant provided a list of his current symptoms in order of severity (at page 6 of the report):
(a) lower back and right hip pain;
(b) constant right leg pain extending from the hip over the thigh and knee to the ankle;
(c) constant neck pain;
(d) constant right sided ribcage pain;
(e) headaches worse on the right three to four times a week;
(f) constant right sided medical knee pain, and
(g) weakness in his hands.
On examination:
(a) neck movements were reduced but symmetrical;
(b) shoulder movements were reduced;
(c) there was mild wrist extension on the right but otherwise no abnormality of the upper limbs;
(d) hip flexion on the right was mildly restricted on the right but normal on the left;
(e) knee movements were normal but there was mild crepitus in both knees, and
(f) there was a 1cm difference in measurements of thigh girth and 0.5cm difference in girth at the calf.
Ms Stewart noted some inconsistencies and pain behaviours.
Dr Shahzad provided a report dated 5 January 2022 to the insurer’s solicitors.[48] He has a history of the claimant working as a chef at the time of the accident (as a casual employee). The claimant told him of immediate pain in the chest, back and neck and that he was trapped for 30-40 minutes. The Panel notes no suggestion of immediate pain in the shoulders or knees.
[48] Page 170 of the insurer’s bundle.
The claimant reported “impingement in both shoulders” which had now resolved and bilateral carpal tunnel syndrome with ongoing lower back pain and right hip sciatica. Mental health issues were also raised. The claimant said he had intermittent pain in the sternum.
On examination:
(a) the claimant had normal cervical spine movements with no guarding, spasm or tenderness;
(b) shoulder motion was normal and there were no complaints of tenderness;
(c) in the lumbar spine the claimant had asymmetrical reduction of lower back movements, and
(d) there was tenderness but no crepitation in the chest.
Dr Shahzad does not record any wrist examination but diagnosed bilateral carpal tunnel syndrome, musculoligamentous injury to the cervical and lumbosacral spine and impingement syndrome in the shoulders now resolved.
He assessed WPI at 5% for the lumbar spine and found no other impairments.
Psychiatric
Dr Smith, psychiatrist, has provided a report to the claimant’s solicitors dated 5 February 2021. The claimant gave a history of having two sessions with a psychologist before the accident for anger management issues but denied seeing a psychiatrist before the accident.
The claimant gave a history of immediate chest, back and neck pain and being trapped for 40 minutes. The claimant said he had scans of his neck and back which showed a fractured sternum.
The claimant reported ongoing low back and leg pain but said that the fractured sternum had essentially healed.
The claimant admitted to smoking cannabis from the age of 20 but said his use of cannabis increased from about five months after the accident.
Dr Smith diagnosed a post-traumatic stress disorder and cannabis use disorder and considered there could be gradual improvement over time. He assessed WPI at 20%.
Dr Smith provided a further report dated 23 March 2022.[49] Dr Smith takes a history from the claimant of frustration in accessing psychiatric treatment and therapy. He refers to Mr Narse’s treatment with Dr Estibero, that the doctor did not attend, and no further sessions were arranged. He documents the claimant’s medication issues and the commencement of drug and alcohol abuse in September 2021.
[49] Page 30 of the claimant’s bundle.
Dr Smith thought the claimant had a poor prognosis, he had worsened since last seen and was completely unfit for employment. He assessed Mr Narse as having a 22% WPI.
The insurer had the claimant examined by Dr George, psychiatrist on 2 February 2022. The claimant reported a consistent version of the accident and said his legs were numb and he had to be cut out of the vehicle. The claimant complained of broken sleep, flashbacks, anxiety, irritability and low tolerance and frustration. Dr George diagnosed post-traumatic stress disorder which been only partly treated. He also suggested a possible substance use disorder. He assessed WPI at 7%.
Dr Anand neuropsychiatrist provided a similar report with an 8% WPI assessment.
Other assessments
The claimant’s psychological injuries were assessed by Medical Assessor Roberts who certified on 1 December 2023 that the claimant sustained a post-traumatic stress disorder, major depressive disorder and cannabis use disorder (in remission) as a result of the accident. While Medical Assessor Roberts declined to make a final assessment on the basis that the claimant was due to be hospitalised soon after the assessment. He gave an interim assessment that the claimant’s WPI would be greater than 10% (he assessed it at 19%).
RE-EXAMINATION FINDINGS
Mr Narse attended the re-examination with Medical Assessor Gibson on 23 February 2024. He arrived at the assessment with his wife and was examined alone. He said they had shared the driving from their home in Forster, the trip taking about four hours.
Past Medical History
Mr Narse was asked about various entries in the clinical notes of general practitioner, Dr Lim. In 2015 Mr Narse was noted to have symptoms in his right knee arising from a football injury. Mr Narse said he subsequently experienced seasonal discomfort in his right knee and in cold weather he would take Tramal for pain relief.
Mr Narse described a minor motor vehicle accident in November 2015 when he was reversing out of a driveway. Mr Narse said he sustained injuries to his neck and lower back. He said these injuries had promptly resolved.
Mr Narse also mentioned that in 1996/97, he had "RSI" while he was working as a croupier in a casino. He developed symptoms in his right shoulder and right elbow, the latter consistent with lateral epicondylitis.
There had been an entry on 24 March 2016, noting hip and low back pain, again treated with Tramal. However, Mr Narse said that all of these symptoms had resolved well before the subject accident.
Work history
Mr Narse said he had worked as a sales representative for most of his life. He had also worked as a croupier for three years and as a chef for under six months, following his move to Forster. He did not provide details of any of his work as a cleaner.
History of the subject accident
Mr Narse was the driver of a Toyota Camry sedan on 24 June 2019 heading home. There were no passengers in the car. He was travelling along the road at 100kmph. Another vehicle exited a rest area and collided with the left side of his car, which was then spun around and stopped in the middle of traffic. Front and side air bags deployed.
There was no loss of consciousness. Mr Narse said he had tried to get out of the car, but his legs were trapped and there was severe chest pain from what was later discovered to be a fractured sternum. He said he could not feel anything from his hips down.
Police, ambulance and rescue teams arrived.
His car was towed and later written off for insurance purposes.
When asked about the Port Macquarie Hospital records where there was no mention of wrist or low back injuries or pain, he said that he arrived at the hospital in the early hours of the morning and had only received a cursory assessment by the treating medical staff. He had some CT scans taken and was then discharged home the following day.
When asked about the claim form completed on 4 July 2019, where there is no mention of wrist or low back, Mr Narse said at that time he was more focused on his sternal injuries, and it was not until approximately two months after the accident that his focus shifted to the other injuries he had sustained. When asked, he said that he had not been taking Tramal at the time of the accident.
Mr Narse said he visited Dr Fernando, general practitioner of the Twin Town Medical Centre. He said that, at that time, he did not have a regular general practitioner, as he had only moved to Forster in January 2019. Dr Fernando apparently was not keen on involvement with a third-party claim. Mr Narse saw Dr Fernando twice in the first few weeks after the accident.
Mr Narse said the insurer suggested another GP to him, Dr Clemensen of Forster Tuncurry Medical, who he then visited on 2 September 2019. He was referred to physiotherapy and psychological therapy. Mr Narse had no treatment in the month before he first saw Dr Clemensen.
Mr Narse said it was about two months after the accident when he was chopping food with his right hand, that he first noticed symptoms in his right hand and arm. He felt weakness and he was dropping things. It was then that he was referred to Dr Sami Dayoub. Nerve conduction studies were performed 21 October 2019 and he was diagnosed with bilateral carpal tunnel syndrome.
Dr Dayoub performed carpal tunnel decompression to the right wrist on 25 September 2020 and then to the left wrist on 20 November 2020. Mr Narse added today that he had also noticed triggering of his right ring finger, and maintained this has been evident since the accident. He said that before the carpal tunnel surgery he had "sausage fingers," and swelling of the entire hand and there were sensory changes in both hands. Following the surgery Mr Narse said his grip has improved, but he was still dropping things. He said his right hand remains symptomatic, but his left hand and wrist are now "fantastic."
He said his low back symptoms became increasingly evident whilst he became less focused on his chest injuries and wrist symptoms and when that happened he complained about his lower back.
Current complaints
Mr Narse indicated residual deformity of the sternum and reported difficulty lying prone in bed at night.
He said his ribs are generally okay, but sometimes there is “a bit” of discomfort, particularly with fixed postures.
In relation to the knees, he could not recall any visible injury after the accident. However, he notes there is discomfort over the right knee greater than the left knee in cold weather, and this was felt under the kneecap. These symptoms appear similar to those experienced after a sporting injury before the accident. At times there are "electrical shocks" going down his right leg to his right knee.
There is constant low back pain rated at 6/10 severity, worse if he sits or stands for too long or after a 3km walk with his dog. The pain is predominantly right sided, extending to the right hip and thigh and involving the thigh in a circumferential fashion. Mr Narse did not describe symptoms of radicular pain into the lower leg.
When asked, Mr Narse said his left shoulder and left knee are now "a hundred percent recovered" apart from occasional symptoms in the shoulder stemming from the neck.
His right wrist is weak, but not painful. There is dysesthesia (unusual touch-based sensations) affecting the lateral fingers and middle finger of the right hand, ulnar hand and forearm. His left wrist is "fine".
There is cracking and pain in the neck with movement, right greater than left-sided neck pain and at times pain spreading to the right greater than left arm affecting the entire arm.
In relation to the shoulders, he feels the symptoms are spreading from his neck but he did describe some aching within the right shoulder joint but no ongoing left shoulder joint pains.
Physical examination
Mr Narse was 178cm tall. He weighed 122kg which gives a body mass index (BMI) of 38.5 which is in the “severely obese” range. He had a normal gait. He could walk on heels and toes. He could squat to three-quarters normal, reporting bilateral knee pains.
There was prominence of the lower end of sternum with some tenderness but it was barely noticeable.
On examination of the neck, there was half normal flexion and extension, two-thirds normal lateral flexion on both sides and two-thirds normal rotation on both sides. There was muscle guarding with rotation to the right.
On examination of both shoulders, movements were measured by a goniometer and repeated on three occasions, and were consistent as follows:
Shoulder Movements
(Normal)
Active range of motion
RIGHT
Active range of motion
LEFT
Flexion (180 degrees)
170°
170°
Extension (50 degrees)
50°
50°
Internal Rotation (90 degrees)
80°
80°
External Rotation (90 degrees)
80°
80°
Abduction (180 degrees)
170°
170°
Adduction (50 degrees)
40°
50 °
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance:
(a) above the elbow 35cm on both sides, and
(b) below the elbow, 32cm in the right forearm and 31.5cm in the left forearm.
There were normal reflexes and power in both arms. There was normal sensation apart from dysesthesia in an ulnar distribution in the hand and forearm.
Wrist movements were normal bilaterally. Tinel’s sign at the wrist was negative on both sides. Provocation testing for lateral epicondylitis was positive on the right.
Active movement of the wrists were measured as follows:
Wrist Movements (NORMAL)
Active range of motion RIGHT
Active range of motion LEFT
Flexion (60 degrees)
60 °
60 °
Extension (60 degrees)
60 °
60 °
Radial deviation (20 degrees)
20 °
20 °
Ulnar deviation (30 degrees)
30 °
30 °
On examination of the lumbar spine there was half normal flexion and extension and three quarters normal lateral flexion on both sides and rotation was normal bilaterally. There was no asymmetry, muscle spasm or guarding. Straight leg raise was to 70 degrees on the left, 50 degrees on the right, both with complaints of lower back pain however sciatic nerve root stretch tests were negative bilaterally.
On examination of the lower limbs, circumferential measurements were:
(a) 50cm at the thigh on both sides, and
(b) 42cm at the calf on both sides.
Reflex, power and sensation were normal apart from reduced sensation in a circumferential distribution around the right thigh.
On examination of both knees, right knee flexion was measured three times at 115 degrees and left knee flexion was 130. There was a click with movements of the right, but not the left knee. But no true crepitus in either knee. No instability was demonstrated.
Mr Narse had psoriasis involving dorsum of both hands, both elbows and both knees.
Mr Narse presented in a consistent fashion throughout the assessment.
ASSESSMENT OF IMPAIRMENT
Spinal impairment
Assessment of the spine required consideration of Chapter 3 of AMA4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111 of the Guidelines).
The spine is divided (cl 6.131) into three regions:
(a) cervicothoracic – cervical;
(b) thoracolumbar – thoracic, and
(c) lumbosacral – lumbar.
In Mr Narse’s claim, he only alleges injury to the cervical and lumbar regions only.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which is the correct category (see Table 6.7).
The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) 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), and which
(ii)follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 6.138:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Cervical [cervicothoracic] spine
The ambulance report, Mr Narse’s claim form and the early notes from Dr Clemensen include complaints of neck pain. The Panel is satisfied on the basis of these documents and Mr Narse’s history at the re-examination that he injured his neck in the high speed accident of 24 June 2019. While the claimant did injure his neck in an earlier accident (14 November 2015) and scans at the time revealed degenerative changes in the cervical spine, on the basis of the claimant’s history and the medical records there is no evidence that the claimant had any neck complaints or impairment immediately before the current accident.
Mr Narse complains of pain in his neck which would attract a DRE I impairment.
There were none of the five signs of radiculopathy present on examination by Medical Assessor Gibson and no evidence of vertebral body compression or vertebral fracture. Mr Narse does not qualify for a DRE category III impairment.
However, the clinical findings included muscle guarding (on right sided rotation) which does attract a finding of a DRE II impairment (5%).
Therefore, the Panel is satisfied that Mr Narse’s cervical spine injury should be assessed at DRE Impairment Category II, thus 5% WPI.
Lumbar [lumbosacral] spine
There were complaints of pain made by Mr Narse and symptoms in the lower back at the time of his re-examination by Medical Assessor Gibson which would attract a DRE category I impairment.
There was no evidence of a lumbar vertebral body compression or vertebral fracture and no clinical findings to indicate any of the five signs of radiculopathy were present. Mr Narse does not therefore qualify for a DRE category III impairment.
In terms of the criteria for a DRE category II impairment, there was no guarding and no dysmetria.
There was pain complained of by Mr Narse in terms of pain which he said was referred to the whole of the right thigh, right hip area and back and front but not down the lower leg. It is the clinical judgment of the medical members of the Panel that this whole of thigh pain is in a non-dermatomal distribution. Complaints of this nature would suggest nerve root compromise at multiple levels (S1, S2, L5, L4, L3 and L2) which is not supported by the existing radiology.
Therefore, the Panel is not satisfied that Mr Narse has non-verifiable radicular symptoms which following a specific serve root and that Mr Narse’s current lumbar spine impairment should be assessed at DRE Impairment Category I, 0% WPI.
The Panel notes the previous November 2015 accident and that the claimant complained at Blacktown Hospital of lower back pain and saw his then GP, Dr Lim and that four months later he was still complaining of hip and back pain. The Panel notes that there was no report of lower back pain made to the Port Macquarie Hospital. While Mr Narse suggests this is because he was given a “cursory” examination in the early hours of the morning, this is not borne out by the hospital record of the examination which in the tertiary survey section indicates a comprehensive musculo-skeletal survey was done.
The claimant did not include a lower back injury in his claim form. The Panel does not accept his explanation that this was because he was focussed on his other injuries. The claim form is the claimant’s opportunity to tell the insurer about all of the injuries and the claimant listed injuries including his fractured sternum and some of his other injuries which were less serious including his knee and neck.
Lower back symptoms do not appear in the notes of the claimant’s GP Dr Clemensen until March 2020. It is not medically plausible for the claimant to have injured his back in the accident but for symptoms from that injury to only emerge nine months later. The Panel does not therefore accept that the claimant sustained a lower back injury in the accident due primarily to the absence of contemporaneous complaints of lower back symptoms for nine months after the accident. The medical members of the Panel would expect there to be some record of a complaint of lower back pain if the claimant was experiencing symptoms.
Upper limb impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA4 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 (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA4 Guides.
There are several methods of assessment:
(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).
Shoulder impairment
In Mr Narse’s case, the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with Part 3.1d. The abnormal range of motion requires the measurement of three functional units of motion:
(d) flexion and extension;
(e) abduction and adduction, and
(f) 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 the AMA4 Guides.
The measurements obtained by Medical Assessor Gibson translate to the follow UEI’s in accordance with figures 38, 41 and 44 on pages 43-45 of the AMA4 Guides.
Shoulder Movements
(Normal)
RIGHT upper extremity impairment (UEI)
LEFT upper extremity impairment (UEI)
Flexion (180 degrees)
170 degrees – UEI 1%
170 degrees – UEI 1%
Extension (50 degrees)
50 degrees – UEI 0%
50 degrees – UEI 0%
Abduction (180 degrees)
170 degrees – UEI 0%
170 degrees – UEI 0%
Adduction (50 degrees)
40 degrees – UEI 0%
50 degrees – UEI 0%
Internal Rotation (90 degrees)
80 degrees – UEI 0%
80 degrees – UEI 0%
External Rotation (90 degrees)
80 degrees – UEI 0%
80 degrees – UEI 0%
The UEI of 1% for the left shoulder is converted to a 1% WPI using table 3 at page 20 of the AMA4 Guides. So too the UEI of 1% for the right shoulder converts to a 1% WPI.
The two UEIs are then combined to create a 2% WPI.
The question remains whether this impairment relates to the injuries caused by the accident.
The claimant’s application for medical assessment claimed soft tissue injuries to both shoulders. The claim form does not mention either shoulder but does mention a “whiplash” injury to the neck.
Dr Poplawski in July 2021 records a full range of movement in the left shoulder and a slightly greater restriction of movement in the right shoulder than found by Medical Assessor Gibson (for example 150 degrees of flexion and 160 degrees of abduction) leading to a 4% UEI or 2% WPI. Ms Stewart from the Vocational Capacity Centre in December 2021 does not record any complaints of shoulder pain although she does record a loss of motion in both the right and left shoulder (for example 160 degrees of flexion and abduction). Dr Shahzad records in January 2022 no restriction of movement in either shoulder.
Medical Assessor Menogue records no left upper limb discomfort or left shoulder symptoms. He also records no isolated right shoulder pain but discomfort spreading from the neck into the right shoulder.
The Panel considers it significant that there is no radiology of the shoulders. No shoulder injury was, listed in the claim form, complained of at hospital (and a full range of shoulder motion was recorded) or included in the initial certificates of capacity. Reading the totality of the treating medical records there are few, if any complaints of specific shoulder joint pain.
The Panel is not satisfied the claimant sustained any frank or specific injury to either actual shoulder however the Panel is satisfied that the claimant’s neck injury is causing restriction of movement in the shoulders which has varied over time.
The Panel notes that if any impairment to the 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[50]that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[50] [2011] NSWSC 351.
The Panel is therefore of the view that the left and right shoulder impairments of 1% each should be allowed on the basis they are impairments caused by the claimant’s neck impairment.
Right and left wrists
The claimant developed carpal tunnel syndrome in September/October 2019, three months after the accident. The claimant requested and the insurer paid for the carpal tunnel surgery that occurred in September and November 2020.
The insurer now submits that the carpal tunnel syndrome is not related to the accident.
It is the clinical judgment of the medical members of the Panel that carpal tunnel syndrome is usually caused by frequent and repetitive movement of the hands and wrists which causes a strain on the wrist and the median nerve. The Panel notes the claimant says he was a chef and first noticed the symptoms in his right hand while chopping food. The Medical Assessors also note that the syndrome can develop after trauma and that the risk of developing the syndrome increases in someone who is overweight.
The insurer has not taken the Panel to any evidence of carpal tunnel symptoms before the accident and the Panel accepts the symptoms developed within three months of the accident. The Panel also accepts the claimant’s reason for why there was no mention of wrist symptoms at the hospital, in his claim form or in the early notes of his GP, because at that stage Mr Narse was not aware of the symptoms.
Mr Narse did not tell Medical Assessor Gibson that he experienced immediate symptoms in his wrists and Dr Poplawski and Dr Shahzad do not record a history of immediate symptoms in the wrists. The Panel has considered the hospital tertiary study on the day of the accident indicates there was a full range of motion with normal power and sensation in the wrists. If the claimant’s carpal tunnel syndrome was traumatic and not degenerative, the Panel would expect the immediate emergence of symptoms and a record of those symptoms at the hospital or by ambulance personnel.
The medical members of the Panel note the operation reports from Dr Dayoub (in particular the report relating to the right hand surgery). The record is of very prominent hand muscles, very oedematous median nerve and very thick fascia. These are, in the clinical experience of the Panel, indicators of a long term syndrome rather that something caused by trauma.
When examined by Medical Assessor Gibson, Mr Narse had positive signs of epicondylitis in the right arm but in the light of his history of a previous repetitive strain injury in the right upper limb, the Panel is not satisfied that this indicates any ulnar nerve condition related to the accident. The claimant also had negative Tinel’s signs in both wrists (which if positive would indicate median nerve issues).
Clause 6.21 of the Guidelines requires the Panel to consider the claimant’s impairment “as it is at the time of the assessment.” Chapter 3, part 3.1 “Wrist” provides two methods of impairment assessment. As amputation is clearly not appropriate, the range of motion method should be used. Medical Assessor Gibson records her findings that the claimant had a completely normal range of motion in both the left and the right wrist.
As there is no restriction or loss of motion in either wrist, it is the Panel’s view that there is no assessable impairment in relation to any condition in the claimant’s left or right wrists, caused or not caused by the accident.
Chest
The claimant complains of ongoing discomfort in the sternum, residual deformity and occasional discomfort in the ribs.
The Panel notes clause 6.23 of the Guidelines provides:
“Certain injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment.”
It is the clinical judgment of the medical members of the Panel that there is no assessable impairment in respect of the claimant’s chest, sternum and rib injuries.
Lower limb impairment
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and Table 6.5 states which of the above methods can and cannot be combined and Table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
The claim form claimed ligament damage to the left knee. In the initial application for medical assessment the claimant says he sustained soft tissue injuries to both his knees.
Medical Assessor Menogue assessed only the left knee but examined both knees finding a normal range of motion of 130 degrees (left) and 140 degrees (right) with no effusion and no crepitus. The findings on examination by Medical Assessor Gibson of 115 degrees and 130 degrees suggests a deterioration of knee function since August 2023.
Dr Poplawski for the claimant in July 2021 did not take a history of any knee complaints and did not examine the knees. Ms Stewart from the vocational capacity centre in December 2021 records a current symptoms of “constant right medical knee pain”, mild crepitus but normal range of motion. Dr Shahzad for the insurer in January 2022 did not take a history of any knee complaints and did not examine the knees.
Mr Narse gave a history of being trapped in the vehicle, but he said to Medical Assessor Gibson that he could not remember any visible injury to his knees. Mr Narse’s left knee (but not the right knee) was investigated by way of an ultrasound at hospital on the day of the accident. The Panel has not been taken to any radiological imaging studies of the claimant’s right knee since the accident. Mr Narse reported to Medical Assessor Gibson symptoms of discomfort in both knees the right more than the left in cold weather under the knee-cap and this echoes the history of symptoms following a previous sporting injury to the right knee.
The Panel is satisfied on the basis of the contemporaneous hospital records and the claim form that the claimant did injure his left knee in the accident. On the basis of the ultrasound and the limited clinical notes, the medical members of the Panel are of the view that the nature of this injury was soft tissue, and that this injury has now recovered.
The claimant’s left knee has a normal range of motion, no effusion and no crepitus. Mr Narse said his left knee had recovered. It is the Panel’s view that there is no assessable impairment in respect of the claimant’s left knee injury resulting from the accident.
While the claimant could have injured his right knee in the accident, the Panel is not satisfied on the information currently before us, that the claimant did sustain an injury to his right knee in the accident.
The claimant is now 54 years of age and has a BMI in the severely obese range. It is the clinical judgment of the medical members of the Panel that any symptoms in the claimant’s knees indicate the possible the presence of osteoarthritis which is not caused by the accident but is an age and weight related degenerative condition.
CONCLUSION
The Panel finds the following in relation to the injuries referred for impairment assessment:
(a) cervical spine 5% WPI;
(b) right upper limb
(i)shoulder 1% WPI resulting from the neck injury
(ii)wrist 0% WPI but no injury caused by the accident;
(c) left upper limb
(i)shoulder 1% WPI resulting from the neck injury
(ii)wrist 0% WPI but no injury caused by the accident;
(d) lumbar spine 0% WPI but no injury caused by the accident;
(e) chest no assessable impairment;
(f) left knee 0% WPI, and
(g) right knee 0% but no injury caused by the accident.
The claimant’s total WPI is therefore 7%.
While the Panel has come to the same conclusion as Medical Assessor Menogue, that is that the claimant has a WPI of not greater than 10%, because the Medical Assessor included the actual percentage (10%) in his certificate and the Panel has found a lower figure, the Panel is of the view it must revoke the certificate and issue a fresh certificate.
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