Norsworthy v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 123
•1 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Norsworthy v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 123 |
| CLAIMANT: | Nolene Norsworthy |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 1 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 12 January 2020; insured vehicle entered roundabout and struck claimant’s vehicle in driver’s side resulting in driver side airbag deployment; assessment of permanent impairment cervical spine and right upper extremity; claimant suffered C1 arch fracture assessed at 5% and first right rib fracture; issue of right shoulder injury and impairment; documented complaint of right shoulder pain at hospital and x-ray undertaken; injury consistent with right sided trauma; discussion of trauma to first right rib and associated soft tissues trauma to muscles affecting the right shoulder; absence of treatment to right shoulder until late 2022; claimant found consistent on examination; records in mid-2022 indicated existing right shoulder symptoms; medical explanation for right shoulder soft tissue injury; claimant accepted on right shoulder injury and motor accident materially contributed to present impairment; Held – claimant assessed at 13% permanent impairment due to physical injuries; additional 1% for right ear tinnitus from assessment not subject to review; medical assessment confirmed as over 10%. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the medical assessment certificate dated 12 April 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment greater than 10%: · cervical spine - C1 fracture; · right wrist soft tissue injury – resolved, and · right shoulder soft tissue injury. |
REASONS
BACKGROUND
On 12 January 2020 Ms Nolene Norsworthy (the claimant) was injured whilst driving her motor vehicle. The claimant had entered a roundabout. The insured vehicle struck the claimant’s rear driver’s side causing the vehicle to spin and airbags to be deployed.[1]
[1] Claimant’s bundle, p 47.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Norsworthy any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Norsworthy “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Home and dated 12 April 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of 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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a fracture at C1 with associated soft tissue injuries, a right rib fracture, a right shoulder soft tissue injury and a right wrist soft tissue injury.
The Medical Assessor assessed the cervical fracture at 5% impairment and the loss of range of movement of the right shoulder at 5% impairment. There was no assessable impairment of the right wrist. This resulted in a combined impairment of 10%.
OTHER MEDICAL ASSESSMENT
Medical Assessor Howison issued a medical assessment certificate dated 8 June 2023 when he assessed the impairment of industrial deafness caused by the motor accident at 1%.
An application by the insurer seeking leave to review that medical assessment was rejected.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-accident conditions
Pre-existing conditions recorded by the general practitioner (GP) included left foot (2013, 2017), left knee (2014, 2017), left forearm/wrist (2017- 2019), low back/left buttock (2019)[11] and right thigh.[12] Pain in the right shoulder, neck and back is mentioned by the GP on
26 July 2019.[13][11] Insurer’s bundle, pp 49-73. The page number on the insurer’s bundle (1480 pages) is incorrect as pages have been added at the commencement of the bundle. The page number we have used is from the electronic numbering of the bundle from the computer.
[12] Insurer’s bundle, p 90.
[13] Insurer’s bundle, p 91.
In 2018 the physiotherapist noted the ongoing treatment to the right wrist with the symptoms affecting the right upper limb which had become affected by swelling leading to a sensation of increased weight of the right shoulder and some strain.[14] The physiotherapist noted “onset of right shoulder pain since 16th August 2018 secondary to change of use of right shoulder”.
[14] Insurer’s bundle, p 147.
On 7 August 2019 Dr Tawfik noted the claimant was recovering well following right carpal tunnel release with no symptoms and no dorsal wrist pain.[15] In October 2019 Dr Tawfik noted that the claimant had returned to light duties with further improvement and had no future consultations planned.[16]
[15] Insurer’s bundle, p 902.
[16] Insurer’s bundle, p 953.
Medical records post-accident
The ambulance record noted the motor accident caused left chest pain, and right lateral neck pain.[17]
[17] Claimant’s bundle, p 98.
The hospital progress notes referred to right paraspinal tenderness in the cervical spine, right supraclavicular bruising, left chest wall tenderness, “pain in right neck and shoulder when actively abducting right shoulder”. Examination of the lower legs was normal and there was no spinal tenderness below the cervical spine.[18]
[18] Claimant’s bundle, p 16.
The CT scan of the cervical spine dated 12 January 2020 showed an undisplaced fracture of the anterior arch of C1 propagating into the right lateral mass described as “inherently stable” and a minimally displaced fracture of the medial end of the right first rib.[19]
[19] Claimant’s bundle, p 107.
An X-ray of the right shoulder dated 13 January 2020 was normal with AC joint degenerative changes present.[20]
[20] Claimant’s bundle, p 15.
The hospital discharge referral noted right-sided C1 fracture, a right rib fracture and a trivial pericardial effusion.[21]
[21] Claimant’s bundle, p 104.
A CT chest angiogram dated 13 January 2020 showed the right anterior arch fracture at C1 and a minimally displaced fracture of the first right rib.[22]
[22] Claimant’s bundle, p 205.
A certificate of capacity dated 16 January 2020 referred to a cervical fracture, right first rib fracture and right wrist sprain.[23]
[23] Claimant’s bundle, p 112.
A clinical note dated 20 January 2020 referred to the motor accident when the claimant struck the right side of her head against the window and air bags were deployed.[24] The certificate noted a fracture at C1 and first right rib, exacerbation of right wrist pain and the chest examination was normal.
[24] Claimant’s bundle, p 115.
On 20 January 2020 the GP referred the claimant for hand therapy for aggravation of the right wrist following the recent motor accident.[25]
[25] Insurer’s bundle, p 954.
On 22 January 2020, the clinical notes of “Hands on Hand therapy” noted various treatment with the following comment:[26]
“Resting with positioning of pillows to relieve shoulder/neck discussed.”
[26] Insurer’s bundle, p 926.
An Allied health recovery request for physiotherapy dated 22 January 2020 referred to neck pain and right wrist/hand problems.[27]
[27] Insurer’s bundle, p 908.
A certificate of capacity dated 24 January 2020 referred to a C1 vertebral fracture and right first rib fracture.[28]
[28] Claimant’s bundle, p 110.
The initial physiotherapy records dated 4 February 2020 noted aches and pain in right arm associated with dorsal wrist pain.[29] Further physiotherapy notes refer to the right wrist.[30]
[29] Insurer’s bundle, p 926.
[30] Insurer’s bundle, pp 929 – 932.
On 5 February 2020 Dr Magid, GP referred the claimant for treatment of right ear tinnitus and decreased hearing following the motor accident.[31] The certificate at that time noted cervical fracture, right first rib fracture and right wrist sprain injury.[32]
[31] Claimant’s bundle, p 116.
[32] Insurer’s bundle, p 199.
A CT scan dated 21 February 2020 confirmed the fracture at the anterior arch of C1.[33]
[33] Insurer’s bundle, p 218.
An MRI scan of the cervical spine dated 16 March 2020 showed a non-displaced fracture line through the right anterior arch of the C1 vertebral body with degenerative changes at C5/6 and C6/7.[34]
[34] Claimant’s bundle, p 121.
On 27 March 2020, Dr Prashanth Rao, neurosurgeon, noted that the motor accident caused a right C1 and clavicular fracture and some hearing loss on the right side with tinnitus.[35]
[35] Insurer’s bundle, p 244.
On 16 April 2020 the hand therapist noted the claimant was making good progress following aggravation of right wrist condition caused by the motor accident.[36]
[36] Insurer’s bundle, p 253.
The X-ray of the cervical spine dated 28 April 2020 confirmed the C1 arch fracture.[37]
[37] Claimant’s bundle, p 123.
On 10 June 2020 the GP noted “electric shooting pains down [the] arms once or twice a week”.[38]
[38] Insurer’s bundle, p 416.
On 2 September 2020 the GP recommended ongoing physical physiotherapy and opined that the severe and ongoing headaches were attributable to the previous C1 fracture and has led to ongoing cervical paraspinal muscle spasm.[39]
[39] Claimant’s bundle, p 125.
The physiotherapist provided a report dated 18 September 2020. He noted that the claimant had some initial right sided altered arm sensation which had settled and had “full upper limb ROM”. Ongoing symptoms included cervicogenic headaches which were relieved with manual therapy.
In July 2021 the psychologist noted “some aching in her right shoulder”.[40]
[40] Insurer’s bundle, p 55.
An X-ray and ultrasound of the right shoulder dated 26 October 2021 showed moderate severe genetic degenerative changes in the acromioclavicular joint and a full thickness tear of the supraspinatus tendon.[41] The claimant underwent an ultrasound guided steroid injection to the right shoulder on 16 November 2021.[42]
[41] Claimant’s bundle, p 143.
[42] Claimant’s bundle, p 145.
On 30 November 2021, Dr Stuart Jansen, orthopaedic surgeon, noted that the motor accident caused a cervical spine fracture and some mild shoulder discomfort which had been worse over the last three months.[43] The doctor opined that the claimant presented with a cuff tear with impingement and recommended an MRI scan.
[43] Claimant’s bundle, p 146.
The MRI scan dated 13 December 2021 was unclear as the doctor opined that it was uncertain whether the changes showed a partial-thickness tear in the subscapularis tendon.[44]
[44] Claimant’s bundle, p 147.
On 21 December 2021 Dr Jansen opined that the MRI showed an intact cuff with AC joint degenerative change and mild bursitis.[45]
[45] Insurer’s bundle, p 621.
On 21 February 2022 the physiotherapist noted that the claimant had a “fall yesterday” and landed on her right shoulder, left elbow and grazed her leg and was “sore today all over”.
On 14 March 2022 Dr Jansen noted that the claimant had been busy packing for a move to Queensland and had experienced left shoulder pain from this activity.[46] The right shoulder pain was described as an ache.
[46] Insurer’s bundle, p 651.
On 20 October 2022, Ms Burns, occupational therapist, noted pre-motor accident carpal tunnel symptoms resulting in surgery in June 2019 with good recovery. The claimant noted a re-occurrence of right wrist symptoms following the motor accident with some associated tendinitis. Wrist symptoms improved with treatment.[47]
[47] Claimant’s bundle, p 148.
Qualified opinions
Dr Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated
11 April 2022.[48] The doctor opined that the claimant suffered injuries to both shoulders, a fractured right clavicle and a fracture at C1.[48] Claimant’s bundle, p 77.
Dr Bodel assessed impairment at 5% for the cervical spine, 8% for the left shoulder and 6% for the right shoulder.
Dr Frank Chow, psychiatrist, provided a report which quantified impairment based on a psychological injury.[49]
[49] Claimant’s bundle, p 95.
Dr Derek Lee was qualified by the insurer and provided a report dated 18 November 2021.[50] The doctor noted a history that the motor accident caused neck, lower thoracic/upper lumbar pain as well as tightness in the right forearm due to the claimant hitting her right upper limb in the accident. It was also noted that the claimant had recently undergone investigations of the right shoulder due to complaints of discomfort on the right side of the neck for some time.
[50] Insurer’s bundle, p 26.
Dr Lee opined that the motor accident caused a fracture to the anterior arch of the C1 vertebrae and fracture to the first right rib. The impairment of the cervical spine was assessed at 5%.
Dr Frank Machart, orthopaedic surgeon, was qualified by the insurer and provided a report dated 2 February 2023.[51] The doctor opined that the claimant sustained a displaced fracture of the C1 segment which had healed, a fracture of the right rib and noted there was no documented injury to the right shoulder joint.
[51] Insurer’s bundle, p 1475.
Dr Machart opined there was an element of pain behaviour at the time of the examination, and the claimant was suffering from chronic pain which was difficult to explain on the basis of the healed pathology.
Statement
The claimant provided a statement dated 19 December 2022.[52] She referred to prior injuries to the left and right shoulders and left knee which had all resolved prior to the motor accident. The claimant also underwent surgery of the right carpal tunnel prior to the motor accident.
[52] Claimant’s bundle, p 45.
After describing the motor accident, the claimant stated that she injured her neck, right shoulder, left shoulder, low back, chest and right forearm and sustained hearing loss in the right ear.
SUBMISSIONS
Claimant’s submissions dated 13 November 2023[53]
[53] Claimant’s bundle, p 3.
These submissions were filed opposing the review of the medical assessment.
The claimant submitted that the Medical Assessor concluded that the motor accident caused impairment of the right shoulder due to a soft tissue injury, and secondary loss from the injury to the neck and first rib fracture.
The claimant noted that the discharge referral at hospital referenced an X-ray to the right shoulder on 13 January 2020 which was consistent with the motor accident causing a right shoulder injury. It was further noted in the hospital progress notes that there was pain in the neck and on active abduction of the right shoulder.
It was further submitted that the insurer’s submission of an absence of contemporaneous evidence of right shoulder injury was incorrect and referred to the above materials. The claimant also noted that she was referred by the GP for physiotherapy that included treatment on examination of the right shoulder and the physiotherapist undertook examinations of both shoulders in September 2020.
The claimant also referred to the consultation notes from “Hands on health Therapy” on
22 January 2020 which referred to the claimant “resting with positioning of pillows [in order] to relieve shoulder/neck”.The claimant also submitted that the review panel would need to reconsider the injuries claimed to the left shoulder and lumbar spine.
The claimant submitted that the right shoulder was asymptomatic at the time of the motor accident. She also submitted that the reference to the subsequent fall on 20 February 2022 ignored the fact that the claimant had undergone various right shoulder scans prior to that incident.
Insurer’s submissions dated 12 December 2022[54]
[54] Insurer’s bundle, p 24.
The insurer submitted that it disputed causation and the degree of impairment in respect of all of the injuries claimed. It noted that the claimant had a full range of right and left shoulder movement recorded in a physiotherapy report dated 18 September 2020 and that the claimant did not seek treatment in respect of the right shoulder until mid-2021. It referred to the MRI scan dated 13 December 2021 which confirmed the rotator cuff was intact and only showed degenerative changes.
The insurer submitted there was no contemporaneous medical evidence supporting the diagnosis made by Dr Bodel of a fractured clavicle caused by the motor accident.
The insurer noted that the claimant had physiotherapy treatment in 2018 for a right wrist injury that required carpal tunnel release and there were reports of tightness in the right shoulder at that time. In May 2020 the claimant attended for treatment to the neck as well as the upper back and had regular treatment to the cervical spine until March 2022 when she moved to Queensland. In February 2022 the claimant landed on the right shoulder, left elbow and grazed her left leg.
The insurer referred to the pre-accident notes of Warilla Medical Centre which listed various complaints six months prior to the motor accident.
Insurer’s submissions dated 22 August 2023[55]
[55] Insurer’s bundle, p 2.
These submissions sought leave to review the medical assessment certificate.
The insurer submitted that there an absence of contemporaneous evidence of right shoulder injury in the 18 months following the motor accident. It further submitted that the claimant had a full range of right and left shoulder movement, reported by the physiotherapist in September 2020.
The insurer submitted that the Medical Assessor failed to diagnose the nature of the right shoulder injury.
The insurer noted that the clinical records produced by Warilla Medical Centre showed that six months prior to the accident the claimant suffered from headaches, lethargy, neck pain, back, right shoulder, right wrist and various other symptoms and was taking Lyrica.
The insurer referred to the notes of Baimed Physiotherapy which recorded an accident on
20 February 2022 when the applicant claimant landed on her right shoulder. Further, the MRI scan dated 31 December 2021 confirm the rotator cuff is intact and the only pathology was degenerative changes in the AC joint with mild bursitis.
RE-EXAMINATION
Ms Norsworthy was examined by Medical Assessor Gorman on 14 February 2024. The examination report is as follows:
“Date of examination
14 February 2024
Who attended the assessment
Ms Norsworthy attended the assessment alone.
Social history
Ms Norsworthy is a 51-year-old right handed women who is single and lives with her elderly father.
She has a 31-year-old child.
She has never been a smoker and has minimal alcohol.
She received insurance payments until June 2023 from NRMA and is now on her Income Protection payments.
Past Medical History
She has “Pre-Diabetes” and is on metformin.
She had previously undergone carpal tunnel release surgery and removal of a ganglion from her right wrist and surgery was six months prior to the accident (October 2019). This was a Workers Compensation injury.
She is a chronic asthmatic she reported and remains on Ventolin, Spiriva and Symbicort.
Eighteen months ago, she underwent a left thyroidectomy to manage an enlarged thyroid that was found at the time of initial imaging.
She confirms that around November 2021, she attended Dr Stuart Jansen for right shoulder pain. She underwent a corticosteroid injection to the shoulder which provided some benefit.
She describes a long history of meralgia paraesthetica with altered sensibility along the lateral border of the right thigh. She said that this was present prior to the subject accident.
Vocational History
At the time of the accident, Ms Norsworthy was working at Woolworths. She recalls that she lost a few weeks from work before returning to suitable duties. She was terminated in December 2022 because she could not do pre-injury duties. She worked for the company for 12 years before the accident and almost 3 years since. Her post-accident work included check-out and supervision of the cigarette shop.
History of the motor accident
Ms Norsworthy states that on 12 September 2020, she was involved in a motor vehicle accident as the unaccompanied seat-belted driver of an i30 Hyundai station wagon travelling along Hallcrest Street near Nowra and entering a roundabout at Princes Highway.
She states that after she entered the roundabout, the driver of a van also entered the roundabout and impacted the rear driver’s side aspect of her vehicle, causing her vehicle to spin 180 degrees to face the opposite direction. She recalls the driver’s side airbag deployed impacting her right ear. She recalls difficulty alighting from the vehicle due to neck pain. She states that ambulance officers arrived and cut her from the vehicle, taking cervical precautions.
Treatment after the accident
She was transported to Shellharbour District Hospital where a diagnosis of right C1 fracture was made. A diagnosis of a right 1st rib fracture was also made. She recalls she may have been told there was a clavicle (collar bone) fracture. She confirms her neck was treated in an Aspen collar for approximately 6 weeks and this was removed after she was reviewed by Dr Rao, neurosurgeon two months later.
In association with the neck pain, she had ongoing right shoulder pain and restriction in movement.
Lyrica was started when she began to have ‘spasms’ on pain in the right arm – she has continued on this.
Following the accident, she returned to Mr Shem Burns to treat her recurrence of wrist pain – he was the same therapist who treated her after the carpel tunnel surgery. The right wrist had hit the car door in the accident. This has since improved.
She describes discharge from the care of Dr Rao in May 2020 after a further telephone consultation.
She reports that she has attended a physiotherapist for management of her neck pain. She experienced transient symptomatic benefit from treatment including dry needling and deep tissue massage.
She has also at times, attended an acupuncturist which also provided temporary benefit.
She also attended an ENT specialist to assess right ear tinnitus. She has lost hearing and does have hearing aids.
She could not recall the fall recorded on 21 February 2022 where she landed on her right shoulder, left elbow and grazed her leg.
Current symptoms
Ms Norsworthy reports current symptoms of right-sided neck pain present most of the day, at average intensity 5-6 out of 10. The neck pain is always right sided and she is aware of slight discomfort and stiffness when turning her neck to the right side. There are no symptoms when turning to the left.
There are no complaints of pain at the left shoulder.
In the right shoulder she described restriction of motion, with associated pain at the base of her neck and the top of her shoulder. She describes difficulty lifting with her right arm, and difficulty with overhead tasks such as attending to her hair. She cannot lie comfortably over her right shoulder at night.
She has headaches once or twice per week. She is on Topiramate for these.
There are no residual symptoms at the right wrist beyond a slight ache during cold weather. She states that she has regained a good range of motion of the wrist. There is no swelling.
She reports occasional low back pain, present a few hours per day, usually more severe on the right side, average intensity 4 out of 10 on a VAS. There is no referral of pain to the lower limbs. There are no complaints of lower limb paraesthesia or numbness related to her back condition.
Current treatment
She reports that she is currently taking Ventolin, Spiriva, Symbicort, Mirtazapine, Venlafaxine, Raprazole, Topiramate, Pregabalin 75 milligrams mane, 150 milligrams nocte, Panadeine Forte as required and Paracetamol 2-4 tablets daily.
Activities of Daily Living
She is single, living in a house with her father. At home, she undertakes a share of domestic chores including cooking, dishwashing, bench height cleaning and laundry tasks. Her father usually hangs the washing and does the vacuuming. She has assistance from an external cleaner whom her father employs 2 hours per fortnight. She enjoys completing jigsaw puzzles and scrapbooking.
She reports a sitting and driving tolerance of up to 2 hours and a walking tolerance of 30 minutes, limited by general fatigue. She is careful to avoid repetitive deep forward bending at the waist.
She suffers from unrelated kneecap pain which causes her difficulty with deep crouching and kneeling. She is able to perform stair climbing adequately.
Her sleep pattern is not disrupted. She is independent for activities of self-care. She is able to lift and carry light to moderate weights but avoids heavy lifting.
Clinical Examination
General presentation
Ms Norsworthy presented as a 51-year-old woman standing 166 centimetres and weighing 148.2 kg – she has gained further weight as her weight when seen by Assessor Home was 132kg.
Cervical spine (cervicothoracic)
Examination reveals normal spinal curvature without muscle spasm.
Cervical spine flexion and performed to normal range. Right and left rotation are performed to normal range. Right and left lateral flexion are performed to normal range. She had discomfort when bending to the right and with rotation to the right.
There is no muscle guarding however.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. There is normal sensation throughout. The deep tendon reflexes are symmetrically preserved.
Lumbar spine (lumbosacral)
There is normal spinal curvature. There is no muscle spasm.
There is a full range of lumbar spine flexion and extension. Lateral flexion is symmetrically performed to normal range. Thoracic rotation is symmetrically performed to normal range.
Straight leg raise is performed to 60 degrees bilaterally.
Neurological examination of the lower extremities is normal. There is normal sensation throughout. The deep tendon reflexes are symmetrically preserved. There is no muscle wasting. There is no weakness.
Right and left shoulder
There is no local muscle wasting. The left shoulder had a normal range of pain free motion. The right shoulder was restricted by pain radiating from the cervical spine and from deep in the shoulder. There was no radiation of pain down the arm. Active range of motion is measured by Goniometer, was repeated to ensure consistency, as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
180°
Extension
40°
50°
Adduction
20°
50°
Abduction
100°
180°
Internal Rotation
60°
80°
External Rotation
90°
90°
Right and left wrist
There are scars on the dorsum and volar aspect of the wrists from previous surgery. There are no clinical signs of carpal tunnel syndrome in the right hand. Wrist range of motion was equal and normal on right and left sides as outlined below:
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
60°
60°
Extension
60°
60°
Radial Deviation
20°
20°
Ulnar Deviation
30°
30°
Summary of relevant medical imaging
CT cervical spine dated 12 January 2020: There is an undisplaced fracture of the anterior arch of C1 propagating into the right lateral mass at C1. No other C1 fracture is demonstrated. This is a unilateral anterior fracture and is inherently stable. There is a minimally displaced fracture at the medial end of the right first rib. There is an incidental finding of a retrosternal goitre. CT brain dated 12 January 2020: Normal. MRI cervical spine dated 13 January 2020: Again shows the C1 fracture through the right anterior arch of the atlas. There were moderate spondylotic changes at C5/6 and C6/7.
CT angiogram of the chest demonstrated a right medial first rib minimally displaced fracture.
CT cervical spine dated 21 February 2020: Comparison is drawn with a study of 12 January 2020. The fracture involving the arch of C1 right of midline is again identified, extending to the right lateral mass. The fracture line is still present and has not united. There is no displacement. No other fracture.
CT chest dated 11 March 2020: Bilateral thyroid enlargement.
MRI cervical spine dated 16 March 2020: There is a non-displaced fracture line seen through the right anterior arch of C1. There is reduction of vertical height of C5/6 and C6/7 with desiccation. There are associated postero disc osteophyte complex with thickened and ossified postero longitudinal ligaments from C5/6 to C6/7 causing obliteration of the anterior CSF column and moderate canal stenosis. Bilateral uncovertebral joint bony spurring and irregularity consistent with arthrosis is also noted at the C5/6 and C6/7, worse on the left.
Bone Density Studies were performed 17 March 2020: Within normal limits.
CT Guided injection right lateral cutaneous thigh nerve dated 22 April 2020.
X-ray cervical spine dated 28 April 2020: Moderate disc space narrowing at C5/6 and severe narrowing at C6/7.
View of the previous CT scan dated 21 February 2020 confirms the presence of a fracture of the anterior arch of the atlas on the right which is undisplaced.
X-ray right shoulder dated 26 October 2021: Moderate to severe degenerative changes involving the AC joint. The glenohumeral joint is preserved. There is slight irregularity of the inferior aspect of the acromion. The bones appear osteopenic.
Ultrasound right shoulder dated 26 October 2021: There is evidence of bursitis. The supraspinatus tendon is heterogenous consistent with tendinopathy. There is evidence of a full thickness tear.
Ultrasound guided injection of steroid into the right shoulder performed 16 November 2021.
MRI right shoulder dated 13 December 2021: The glenohumeral joint is normal. Biceps tendon is normal. Supraspinatus, infraspinatus and teres minor tendons are intact. There is no full thickness tear seen in the subscapularis, however, articular sided high signal change is seen on the coronal view but is incompletely imaged on the remaining views. This could be artefactual.
Ultrasound guided injection into the right subacromial space was performed 31 December 2021
Consistency
The claimant was consistent in her presentation during the examination.
Determinations - Permanent impairment
Diagnosis and Causation
Ms Norsworthy was involved in a motor vehicle accident in which her vehicle was struck and spun with air bags deploying. She suffered fractures to the C1 vertebra and the 1st rib. Whilst a clavicle fracture is listed, this was not caused by the subject accident and there is no record of a clavicle injury in the attached reports.
The 1st rib fracture has caused symptoms at the base of the neck and right shoulder girdle with local pain and muscle spasm. She had immediate pain noted on abduction of the right shoulder.
Whilst investigations of the shoulder itself did not show significant rotator cuff injury, we believe that the combination of cervical spinal pain with radiation to the right shoulder plus the ongoing effects of the soft tissue injury associated with the 1st rib fracture have led to the ongoing shoulder pain and restriction in movement.
She also sustained a soft tissue injury to the right wrist leading to a recurrence of symptoms at the volar aspect of the wrist. There had been a previous period of treatment for carpal tunnel syndrome and a right wrist ganglion that was subject to a pre-accident operation.
She currently reports intermittent low back pain. There are no objective abnormalities on examination of the lumbar spine at this assessment. Based upon our review of her history and the medical file there is insufficient basis to determine injury to the lumbar spine sustained in the subject accident.
There is no record of a left shoulder injury following the subject accident prior to Dr Bodel’s assessment. Dr Bodel reportedly found restricted motion at the left shoulder and opined that this came on a result of the accident. There is no record of left shoulder injury in the Personal Injury Claim Form or the post-accident record, imaging of the shoulders in the post-accident period, the medical certificates or the medical reports of Dr Stuart Jansen, shoulder surgeon. Further, at this assessment the claimant does not report a left shoulder injury.
Summary of injuries referred for assessment
The following injuries WERE caused by the motor accident:
• Cervical spine: Fracture of C1 with associated soft tissue injuries
• Right shoulder: Soft tissue injury, fracture of 1st rib
• Right wrist: Soft tissue injury
The following injuries WERE NOT caused by the motor accident:
• Lumbar spine
• Right clavicle (fracture)
• Left shoulder
Definition of Permanency
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (p.315) as follows: 'Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.'
Her symptoms have remained stable for more than 12 months. There is no further specific treatment planned. She has reached maximal medical improvement and her impairment will not change by more than 3% over the next 12 months.
Cervicothoracic spine
She has sustained a vertebral body fracture without displacement. The fracture attracts a DRE Cervical spine category 2 impairment rating as a structural inclusion. She does not meet the criteria for radiculopathy set out in Section 1.138 of the SIRA Guidelines. A 5% Whole Person Impairment rating arises in accordance with Table 73 on Page 110.
Right shoulder
There is restricted motion of the right shoulder due to soft tissue injury generally, secondary to her neck complaint and to the right 1st rib injury. While the Baimed Physio in September 2020 reported normal range of right shoulder movement, other reports have documented pain and restriction in movement of the right shoulder as a persistent feature of her presentation since the accident.
The impairment is determined using Figures 38, 41 and 44 AMA4, Pages 43, 44 and 45 respectively. In the right shoulder, flexion of 110 degrees gives 5% upper extremity impairment (UEI), extension of 40 degrees gives 1% UEI, adduction of 20 degrees gives 1% UEI, abduction of 100 degrees gives 4% UEI, internal rotation of 60 degrees gives 2% UEI and external rotation of 90 degrees gives 0% UEI.
The total UEI is 13%. An 13% upper extremity impairment rating converts to a 8% whole person impairment rating using Table 3, AMA4, page 20 to convert upper extremity impairment to whole person impairment.
Right wrist
There is a 0% whole person impairment rating at the right wrist. The range of active motion of the right wrist is normal. There is no other rateable impairment.
Combined Impairment
The Combined Impairment rating is 13% WPI (combined values chart AMA4 Page 322).
There is no subtraction for pre-existing conditions. While she had one review for right shoulder pain prior to the injury, symptoms did not persist. The documented fall did not cause persistent right shoulder pain. The presence of AC joint degeneration does not warrant a deduction – the complaints are not focussed on this joint but more generalised over the shoulder.
Body Part or System
AMA Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
Cervical spine
Table 73 on page 110 of AMA 4th Edition
Yes
5%
0%
5%
Right shoulder
Figures 38, 41 and 44 on pages 43, 44 and 45 of AMA 4th Edition.
Yes
5%
0%
8%
Right wrist
Chapter 3 of AMA 4th Edition
Yes
0%
0%
0%
* %WPI = percentage whole person impairment
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[56]
[56] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[57] and Insurance Australia Ltd v Marsh.[58]
[57] [2021] NSWCA 287 at [40], [41] and [45].
[58] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
The claimant referred to the dangers of determining causation based on the absence of contemporaneous complaint and referred to Mason v Demasi;[59] Owen v Motor Accidents Authority of NSW;[60] Bugat v Fox.[61] The claimant did not refer to any contemporaneous evidence of the other body parts said to have been injured apart from the references to the right shoulder set out earlier in these Reasons.
[59] [2009] NSWCA 227 at [22].
[60] [2012] NSWSC 650 at [52].
[61] [2014] NSWSC 888.
We are not satisfied that the motor accident caused injury to the left shoulder for the following reasons. First, there was no contemporaneous recorded complaint of injury. Secondly, there is no medical basis for left shoulder injury when the impact was to the right side of the body. Thirdly, Dr Bodel provided no medical explanation of how the motor accident purportedly caused a left shoulder injury. Fourthly, there is no report of treatment to the left shoulder for approximately two years after the motor accident.
We are not satisfied that the motor accident caused injury to the lumbar spine. There is no contemporaneous complaint of injury to the lumbar spine and a positive comment at hospital of no spinal issues below the cervical spine. There was no record of treatment to the lumbar spine in circumstances where there was physiotherapy treatment for the cervical spine. Further, there is a record of previous low back symptoms in 2019 which could explain subsequent complaints of low back pain.
There is clear evidence of contemporaneous complaint of injury to the cervical spine and repeated scan evidence of a C1 arch fracture. The nature of the significant impact could cause such an injury. The medical evidence consistently assessed that impairment at 5% due to the motor accident despite the insurer denying causation and impairment.
We accept that the motor accident caused a C1 arch fracture which is assessed at 5% impairment.[62]
[62] See Table 6.7 of the Guidelines - posterior element fracture.
The claimant suffered an exacerbation of her right wrist condition in the context of pre-accident symptoms. There was post-accident treatment with a resolution of symptoms with physiotherapy. We accept that there was a short-term aggravation of right wrist symptoms which settled over a period of six months. Any ongoing condition is due to the pre-existing pathology which would cause ongoing mild complaints.
There is no scan evidence of a fractured clavicle despite what the claimant believes she may have been told at the hospital.
We accept that the motor accident caused injury to the right shoulder. Despite the insurer’s contrary submission, there is documented evidence of complaint at the hospital with a specific reference to pain when the claimant actively abducted the right shoulder. The claimant underwent a right shoulder X-ray at hospital which is also clear support of right shoulder symptoms at that time.
The airbag deployment on the right driver’s side explains the right rib fracture and trauma to the right shoulder area. A fracture of the right first rib would injure the muscular right shoulder girdle and thereby cause soft tissue injury to the right shoulder. The first rib is an attachment site for the intercostal muscles and the serratus anterior. This musculature pulls inferiorly as the scalene muscles (which also attach to the first rib) in a superior direction. The trunks of the brachial plexus lie medial and inferior to the first rib. The muscular attachments of the shoulder girdle muscles explain the medical basis for the relationship between the documented right first rib fracture and injury to the muscles effecting the right shoulder.
The physiotherapist note in September 2020 was brief. In contrast we have a claimant who had complained of right shoulder symptoms at the time of the motor accident and whose version is of ongoing symptoms in that region. That version is contrasted with the documented lack of treatment to the right shoulder following the motor accident.
The report by Dr Jansen in November 2021 is of some mild right shoulder discomfort which had been worse over the last three months. That record indicates right shoulder symptoms which had worsened over the three months rather than of recent onset. That interpretation is consistent with the record of Mr Cipriani, psychologist in July 2021 who noted that the claimant reported “aching in the right shoulder”.[63]
[63] Insurer’s bundle, p 55.
We note the existence of right shoulder and other complaints in July 2019 and around that time. The existence of prior symptoms may explain ongoing symptoms. It also means that the claimant was more susceptible to right shoulder injury and ongoing impairment as was evidenced by the subsequent scans showing degenerative changes.
There is reference in February 2022 to a fall which impacted a number of body parts including the right shoulder. The notes after that date do not refer to any deterioration in right shoulder symptoms and an attendance in March 2022 with Dr Jansen noted left shoulder restriction following lifting at home with a reference to right shoulder ache, similar to what had been reported in late 2021.
We accept that the February 2022 incident was minor and agree with the claimant’s submission that the right shoulder symptoms had been documented prior to that fall.
The comment by Dr Machart that there was no documented injury to the right shoulder at the time of the motor accident is incorrect. There was a right shoulder X-ray undertaken at hospital and documented pain.
We also rely, in part, on the clinical findings of Medical Assessor Gorman who found the claimant’s presentation consistent. The various right shoulder assessments carried out by a number of medical practitioners, whilst showing some variation, are generally consistent.
On the balance of probabilities, weighing the various and conflicting matters, we accept that the claimant suffered a soft tissue right shoulder injury and that the motor accident materially contributed to the current impairment.
We are not satisfied that there should be a deduction for any pre-existing condition as we are satisfied there is no objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident within the meaning of cl 6.31 of the Guidelines. Accordingly, no deduction is made.
Clause 1.34 of the Guidelines referable to the Motor Accidents Compensation Act 1999, which is identical form to cl 6.34 of the Guidelines, was discussed by Wright J in Slade v Insurance Australia Ltd.[64] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[65] apply.
[64] [2020] NSWSC 1031 (Slade).
[65] (1990) Aust Torts Rep 81-003.
We do not accept that there should be any deduction for the subsequent incident as we considered it a minor event and the right shoulder symptoms had been documented prior to that incident.
The impairment is stabilised and permanent within the meaning of cls 6.19 and 6.20 of the Guidelines due to the duration of symptoms, no need for treatment in the foreseeable future and the consistency of past symptoms. Based on the clinical experience of the Medical Assessor on the Panel, we do not expect any change in impairment over the next 12 months.
CONCLUSION
The Panel has concluded that that the claimant has a 13% permanent impairment of the cervical spine and right shoulder. The other assessment, not the subject of review is that the claimant has a 1% impairment from the right ear. This results in a combined impairment of 14%.
Accordingly, the medical assessment certificate is revoked, and a new medical assessment certificate is issued.
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