Odeesho v AAI Limited t/as GIO
[2022] NSWPICMP 512
•13 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Odeesho v AAI Limited t/as GIO [2022] NSWPICMP 512 |
| CLAIMANT: | Joni Odeesho |
INSURER: | AAI Limited trading as GIO General |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 13 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident; the dispute related to the assessment of whole person impairment (WPI); injuries referred for assessment were injury to the neck; injury to the back; injury to both shoulders; fractured ribs; right lower extremity referred pain; pre-existing right-sided lumbar radiculopathy in 2012; only complaint between 2012 and accident in January 2019 was complaint of right leg pain in 2014; Held – aggravation of pre-existing L5/S1 disc protrusion with right S1 nerve root impingement caused by accident; no objective evidence of pre-existing symptomatic permanent impairment at the time of the accident; no deduction for any pre-existing symptomatic impairment; assessed as diagnosis related estimate (DRE) lumbosacral category III or 10% WPI; soft tissue injury to cervical spine assessed as DRE cervicothoracic category II or 0% WPI; injury to the right shoulder not caused by the accident; soft tissue injury to left shoulder resolved; not medically plausible that restriction of range of movement in left shoulder limited by left chest wall and low back pain; no assessable impairment of left shoulder; uncomplicated healed rib fractures not result in assessable impairment; referred pain to the right leg is a component of the lumbar radiculopathy; Panel finds total WPI of 10%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Sam Perla dated 9 May 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 10% which is not greater than 10%: · cervical spine – soft tissue injury, and · lumbar spine – soft tissue injury with aggravation of a pre-existing L5/S1 disc protrusion with right S1 nerve root impingement. The Panel finds the following injuries were caused by the accident but do not give rise to permanent impairment: · right lower extremity – referred pain from the back to the right leg into the toes; · left shoulder – soft tissue injury (resolved), and · fracture of the 2nd, 3rd, 4th, 5th, 6th and 7th ribs (resolved). The Panel finds the following injuries were not caused by the motor accident: · injury to the right shoulder. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 14 January 2019 Mr Joni Odeesho (the claimant), a driving instructor was teaching a student. The vehicle in which the claimant was a passenger was stationary at traffic lights on Emerson Street, Wetherill Park when it was rear ended by another car at speed (the accident). Mr Odeesho believes he lost consciousness and next recalls waking up in Liverpool Hospital
Mr Odeesho asserts he sustained the following injuries in the accident:
(a) injury to the neck;
(b) injury to the back;
(c) injury to both shoulders;
(d) injury to both ribs, and
(e) injury to the right leg.
Mr Odeesho has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as GIO General (the insurer) is the relevant insurer with liability to pay any damages to Mr Odeesho under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Odeesho as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1]. The dispute as to permanent impairment was referred to Medical Assessor Sam Perla
[1] Section 7.20 of the MAI Act.
Medical Assessor Perla assessed Mr Odeesho and issued a Certificate dated 9 May 2022.
Mr Odeesho has sought a review of the medical assessment of Medical Assessor Perla.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Perla was lodged on 6 June 2022 within 28 days of the date on which the Certificate of Medical Assessor Perla was made available to the parties.[2]
[2] Section 7.26(1)(b) of the MAI Act.
On 21 July 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 7.26 of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) [4]. Accordingly, the President’s Delegate referred the matter to this Panel to assess.
[4] Section 7.26(5A) of the MAI Act.
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 Medical Assessor[5].
[5] 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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[7] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is also addressed under Part 6 of the Guidelines:
“6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
ASSESSMENT UNDER REVIEW
The assessment under review is the assessment undertaken by Medical Assessor Sam Perla on 19 April 2022 as set out in his certificate dated 9 May 2022.
The following injuries were referred to Medical Assessor Perla for assessment:
(a) neck – cervicothoracic spine – mechanical injury, ligamentous strain;
(b) back – lumbosacral spine – aggravation, mechanical injury, ligamentous strain, aggravation of underlying degenerative condition;
(c) both shoulders – mechanical injury to both shoulders in addition to referred pain from the neck;
(d) ribs – multiple fractures on the left side, from left 2 to 7 ribs anteriorly, and
(e) right lower extremity – referred pain from the back to the right leg into the toes.
Medical Assessor Perla concluded the following injuries were caused by the motor accident:
·back – lumbosacral spine – L5/S1 disc protrusion:
·ribs – multiple fractures on the left side from left 2 to 7 ribs anteriorly;
·neck – soft tissue injury, and
·both shoulders – referred pain from neck- as per Nguyen vs MAA[8].
[8] [2011] NSWSC 351.
Medical Assessor Perla found that the injury to the neck was a DRE Impairment Category I which equated to a 0% whole person impairment (WPI). He found it was reasonable to assume the ribs had healed and in the absence of any permanent impairment of respiratory function would give rise to a 0% WPI. In relation to the shoulders, he noted an inconsistent range of motion, no evidence of direct injury to the shoulders, no imaging undertaken and found there was no assessable impairment.
On the basis Mr Odeesho was suffering from referred pain from the back which did not constitute a separate injury Medical Assessor Perla found the following injury was not caused by the accident:
· right lower extremity – referred pain from the back to the right leg and into the toes
Medical Assessor Perla declined to make an assessment under s 7.21(4) of the MAI Act of the “back – lumbosacral spine – soft tissue injury” on the basis the injury was not yet permanent although his interim assessment under s 7.22(2) of the MAI Act was that it was probable that the degree of impairment was not greater than 10%. He stated the permanent impairment should be capable of assessment in 12 months pending possible surgery in the meantime.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 1 August 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a document marked AD2 paginated from pages 1 to 4 comprising the claimant’s index and a bundle of documents marked AD3 paginated from pages 1 to 1,073. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD4 paginated from pages 1 to 157.
The Panel issued a Report and Directions on 9 September 2022 drawing to the party’s attention the records of Dr Teychenne which provided objective clinical, radiological and electrophysiological evidence of a lumbar radiculopathy. The insurer was invited to provide further submissions addressing the possible existence of a pre-existing lumbar radiculopathy by 16 September 2022 with the claimant to provide submissions by 30 September 2022. The claimant was directed to upload to the portal reports of all radiological imaging studies pertaining to the lumbar spine undergone in the period 1 January 2012 to date; and all specialist reports, not already uploaded to the portal, in relation to the lumbar spine brought into existence in the period 1 January 2012 to date.
In response to that direction the insurer uploaded to the portal submissions dated 16 September 2022 marked AD5.
In response to that direction the claimant uploaded to the portal the following:
·a letter from Brydens Lawyers dated 28 September 2022 advising that the claimant does not possess any further radiological scans. The letter is marked AD6. The letter also lists further documents uploaded to the portal and marked AD7 to AD23;
·a report of Dr Youkhanis dated 12 January 2012 (AD7);
·a Discharge Referral of Canterbury Hospital – Operation dated 7 March 2012 (AD8);
·reports of Dr Teychenne dated 28 June 2012 (AD9); 5 July 2012 (AD10), 6 July 2012 (AD11), 10 July 2012 (AD12), 13 July 2012 (AD13), and 27 July 2012 (AD14);
·a report of Dr Tejani dated 9 July 2012 (AD15);
·reports of Dr Novakovic dated 11 July 2012 (AD16) and 25 July 2012 (AD17);
·Thyroid SPECT and CT scan report dated 31 July 2012 (AD18);
·a report of Dr Nashed dated 15 October 2012 (AD19);
·a report of Dr Hoffman dated 11 December 2012 (AD20);
·a report of Dr Winkler dated 20 December 2012 (AD21), and
·submissions dated 28 September 2022 (AD 23);
On 13 October 2022 the claimant uploaded to the portal the clinical notes of Dr Teychenne (AD24).
On 14 October 2022 the claimant uploaded to the portal supplementary submissions dated 14 October 2022 (AD25).
On 20 October 2022 the Panel noted the claimant’s bundle of documents did not include any records from Dr Menashi between 14 January 2019 and 29 October 2019 when the claimant was clearly receiving treatment from Dr Menashi. The Panel directed the claimant to provide a full copy of Dr Menashi’s clinical notes showing attendances during that period.
On 17 November 2022 the claimant uploaded treatment records from Dr Menashi marked AD29. In a letter to Brydens Lawyers dated 17 November 2022 Dr Menashi advised due to a technical error when relocating his practice from Greenfield Park to Wakeley data for the 2019 year was lost. Dr Menashi indicated he had provided monthly reports and all available documents for the period sought.
Application for personal injury benefits
In his application dated 4 February 2019 Mr Odeesho referred to fractured ribs, the spine and a bruise on the lower abdomen.
Photographs
A photograph of the claimant’s vehicle shows extensive damage to the rear of the vehicle. A second photograph shows the claimant wearing a cervical collar.
Pre-accident medical evidence
Dr William Menashi, clinical notes
On 6 March 2012 Mr Odeesho underwent open mesh repair of bilateral inguinal hernias and umbilical hernia under the care of Dr Youkhanis.
On 14 June 2012 Dr Menashi referred Mr Odeesho for a CT of the brain and reported:[9]
“Still c/o pain in back of the headaches
Numbness in legs
Hands
Pain all over
Very worried
Anxious
CNS
No lateralising signs.”
[9] AD3 p 185.
Mr Odeesho continued to complain of a galaxy of different symptoms including numb legs, dry mouth, noise in ears, abdominal pain, tightness in chest, anxiety, feeling red and hot in the face, palpitations, and diarrhoea. Dr Menashi referred Mr Odeesho to Dr Teychenne, neurologist, Dr Nashed cardiologist, Dr Tejani, endocrinologist, Dr Youkhanis, surgeon and an ENT (ear, nose and throat) specialist. It was suggested Mr Odeesho had thyroid disease, although on 13 August 2012 Dr Menashi suggested he consult a psychiatrist concluding he was complaining of multiple somatic symptoms due to anxiety.[10] He saw Dr Sharah, psychiatrist on 27 September 2012 who concluded he needed reassurance.[11] On 5 December 2012 Dr Menashi reported complaints of lower back pain. On 4 December 2013 Dr Menashi reported Mr Odeesho was feeling better and under less stress after starting work.
[10] AD3 p 189.
[11] AD3 p 424.
On 10 March 2014 Dr Menashi reported a pain spasm in the right calf with pain travelling to the tip of the toes and on 17 October 2014 he reported right leg spasm at night after playing soccer.[12]
[12] AD3 pp 195 and 196.
Dr Teychenne, neurologist
On 28 June 2012 Dr Teychenne reported episodic tinnitus, a fever, a blocked nose, and over the past two years episodes of tremor in both legs.[13] Further he reported:
“Over the past twelve months he has noted pain over the lumbar spine extending into the right buttock and down the posterolateral aspect of the right thigh into the posterolateral aspect of the right lower leg into the dorsolateral aspect of the right foot into the right 5th toe. He has noted persistent numbness over the lateral aspect of the sole of the right foot.”
[13] AD3 p 601.
On examination he noted a decreased right ankle jerk consistent with a right S1 radiculopathy. Straight leg raising was 65º on the left and right side without pain or discomfort. Dr Teychenne noted the CT scan of the lumbar spine showed small osteophyte development and a posterior disc bulge causing minimal deformity of the theca at L4/5 and a broad based posterior disc bulge at L5/S1 with a right posterolateral component causing slight deformity of the theca and impinging on the right sided nerve root within the lateral recess.
On 13 July 2012 Dr Teychenne concluded a decrease in recruitment pattern within the right EDB (extensor digitorum brevis) muscle with wasting in the right EDB muscle and the decreased right ankle jerk was consistent with a right L5/S1 radiculopathy.[14]
Post-accident medical evidence
[14] AD3 p 606.
Ambulance report
On arrival the claimant was described as sitting on the side of the road, alert and orientated.[15] Airbags had deployed. He was complaining of central chest pain and left sided rib pain. He had “nil c-spine pain, nil abdo pain, nil head pain, nil pelvic or limb pain”. He was conveyed to Liverpool Hospital.
[15] AD3 p 631.
Liverpool Hospital
Mr Odeesho was admitted overnight to Liverpool Hospital. The primary survey reported “lower C spine tenderness”. The secondary survey included “chest – trachea midline, seat belt sign over left clavicle/shoulder, mild tenderness over L chest, nil significant wounds, good chest expansion, equal air entry bilaterally” and in relation to the upper limbs “nil significant wounds or bony tenderness, ROM (range of motion) normal throughout joints, neurovascularly intact”. The discharge summary identified complaints of left sided chest pain and lower back pain.[16] The report notes “nil midline C spine tenderness, collar in situ”. A CT scan of the cervical spine revealed no abnormalities.
[16] AD4 p 130.
Dr Menashi
The claimant attended Dr Menashi on 21 January 2019 and reported following the accident he had symptoms pertaining to his fractured left ribs, pain on breathing, and a tender left chest wall. On 11 February 2019 Dr Menashi also referred to the lumbar spine.
On 4 February 2019 Dr Menashi issued a Certificate of capacity/certificate of fitness (Certificate) with a diagnosis of fractured left 6th and 7th ribs, L4/5 and L5/S1 prolapsed vertebral discs abutting left L5 and S1 nerves.[17] He recommended review every one to two weeks, neurosurgical review, pain management, medication and physiotherapy after his ribs had healed. He certified Mr Odeesho with no current capacity for work.
[17] AD29 p 57.
Dr Menashi issued certificates in similar terms on 11 March 2019, 8 April 2019 and 8 May 2019. On 8 June 2019 he reported Mr Odeesho had had his first back injection. He recommended he continue physiotherapy and hydrotherapy and continued to certify him with no capacity for work.[18]
[18] AD29 p 45.
In a certificate dated 8 July 2019 Dr Menashi reported Mr Odeesho had undergone eight sessions of hydrotherapy and five sessions of physiotherapy and continued to certify him unfit for work.
Further certificates were issued on 13 August 2019, 12 September 2019 and 29 October 2019. On 29 October 2019 Dr Menashi certified Mr Odeesho fit for some work for four hours a day four days a week with a standing tolerance of 45 to 60 minutes, a sitting tolerance of four to six hours, a driving restriction of four hours with rest breaks and additional restrictions in respect of lifting, bending, pushing and pulling.[19]
[19] AD29 p 33.
On October 2019 Mr Odeesho participated in a case conference with the insurer.[20] He still had pain from the left rib fractures, twitching in the right foot and numbness in the right heel. He was attending physiotherapy and hydrotherapy.
[20] AD3 p 200.
H K Medical clinical notes
The first consultation was on 22 June 2020 when Dr Amir obtained a history of the accident. He reported Mr Odeesho had pain in the left side of the chest and continuous lower back pain associated with radiculopathy noting pain down his right leg.[21]
[21] AD3 p 509.
On 10 October 2020 Dr Amir reviewed the claimant’s neck and back pain, both knees, hips and right leg. He reported Mr Odeesho had chronic pain and difficulty walking.[22]
[22] AD3 p 686.
Exercise Rehab and Rehab Solutions Australia
On 22 March Majd Mehieddine, physiotherapist reported Mr Odeesho had sustained three rib fractures and increased symptoms in the lower back with spreading paraesthesia into the right leg.[23]
[23] AD3 p 103
On 6 June 2019 Ms Mehieddine completed a Hydrotherapy Initial Assessment Report. She reported Mr Odeesho was experiencing pain at the left side of his abdomen and lower back radiating bilaterally down both legs with paraesthesia and numbness as well as spasms in the calf muscles and the hamstrings.
Mr Odeesho was reviewed by Cassie Chan, physiotherapist on 1 October 2019.[24] He was still complaining of pain at his left chest and lower back. She noted restrictions in range of movement in the lumbar spine, general weakness in his right leg, reduced knee jerk and ankle jerk on the right side. She also noted reduced muscle strength generally on the right leg.
[24] AD3 p 120.
On 15 October 2019 a report of Rehab Solutions noted complaints as rib pain when taking deep breaths, back pain increased by prolonged walking and sitting and numbness in his legs.
Exercise Rehab provided an initial hydrotherapy assessment report dated 4 July 2020 which referred to rib pain and back pain with numbness in the legs and on 16 September 2020 Ms Chan reported improvement in pain with hydrotherapy sessions. [25]
[25] AD3 pp 130 and 131.
On 10 October 2020 the claimant was assessed by Mr Beshay, exercise therapist. Mr Odeesho reported problems in the neck when his lower back pain was aggravated. He reported the shoulders “always” had some type of pain, with an intensity of “5/10” which might be aggravated “when moving into external rotation”.[26] In the “Orebro Musculoskeletal Pain Questionnaire” dated 10 October 2020, the claimant indicated he had pain in the neck, shoulder, upper back, lower back, and leg, and that the pain had been persistent for over one year.[27]
[26] AD3 p 141.
[27] AD3 P 100.
An undated Range of Joint Motion Evaluation Chart refers to shoulder pain and demonstrates a reduced range of motion in both shoulders.
Clinical notes of Assoc Prof Sheridan
Mr Odeesho saw Assoc Prof Sheridan, neurosurgeon on 26 March 2019 when he complained of increasing lower back pain and right leg pain. He reported “it feels like his leg gives way and he has some S1 numbness”.
On 15 May 2019 Assoc Prof Sheridan reported “The MRI scan shows degenerative changes at several levels but at L5-S1 there is bilateral disc bulging with nerve compression consistent with his back and leg symptoms and the after effects of his injury”.[28] On 9 August 2019 Assoc Prof Sheridan reported a CT guided transforaminal steroid injection at the L5-S1 gave Mr Odeesho a good result for about a week noting his left sided pains were settling well although he still had some pain paraesthesia and numbness and weakness down the right leg.[29] On 24 December 2019 Assoc Prof Sheridan reported Mr Odeesho was a candidate for an L5-S1 laminectomy and discectomy and nerve root decompression[30] although on 6 July 2020 Assoc Prof Sheridan reported he was not ready to consider surgery.
[28] AD3 p 78.
[29] AD3 p 248.
[30] AD3 p 1,017.
On 1 December 2021 Assoc Prof Sheridan reviewed Mr Odeesho following an MRI and bone scan.[31] He reported the bone scan showed active inflammation at the L5-S1 joint and inflammation in the facet joints at L3-4 and the sacro-iliac joint on the left consistent with his complaints of pain. He stated the MRI scan showed marked degeneration at L5-S1 with disc bulging and bilateral foraminal narrowing consistent with his leg symptoms. On 30 June 2022 Associate Professor Sheridan found the claimant’s pain was a little better.
[31] AD3 p 1,022.
Clinical notes of Dr Manohar
The claimant saw Dr Manohar, pain physician on 14 July 2020.[32] He reported complaints of pain extending across the back and down both legs to the feet, a sensation of rightness in the lateral border of the right foot and over the right shin, pain in the left ribs and pain in the left shoulder.
[32] AD3 p 52.
He reported the MRI scan of the lumbosacral spine of November 2019 showed facetal changes at the L3/L4, L4/L5 and L5/S1 levels with an annular tear of the intervertebral disc at the L4/L5 level. He also noted disc bulging at the L5/S1 level, perhaps irritating the S1 nerve root. He reported the bone scan showed facet joint changes at the L3/L4 and L4/L5 levels.
Dr Manohar reported Dr Sheridan proposed an L5/S1 decompression, but the claimant was reluctant to proceed.
IMAGING
CT lumbar spine, 22 December 2010
The report states inter alia:
“At the L5/S1 level there is a broadbased posterior disc bulge with a right posterolateral component, there is slight deformity upon the theca and there is impingement upon the right sided nerve root in the right lateral recess”.[33]
[33] AD24 p 11.
CT brain/facial bones, 15 June 2012
The clinical history was of headaches. The report concluded mild mucosal thickening in the maxillary antra but did not identify any acute intracranial pathology.[34]
[34] AD3 p 501
CT cervical spine, 23 July 2014
The claimant underwent a CT of the paransasal sinuses and of the cervical spine in the context of facial pain, right ear tinnitus and sinusitis. The scan of the cervical spine found no cervical spine compression, spondylolisthesis, canal stenosis or bony foraminal stenosis evident.[35]
[35] AD3 p 332
CT brain, CT of abdomen, CT of cervical spine, 14 January 2019
Mr Odeesho underwent these investigations at Liverpool Hospital following the accident. No abnormality was detected.
CT thoracic aortogram, 14 January 2019
The following left rib fractures were disclosed:
·“4th rib and 5th rib: cortical buckling along the medial surface - ? chronic fractures.
·6th rib: Nondisplaced fracture anterolaterally.
·7th rib: Nondisplaced fracture anterolaterally”.
CT scan lumbosacral spine, 2 February 2019[36]
[36] AD3 p 57
The report includes the following findings:
“Moderate spondylotic change is present in the L5/S1 discovertebral joint, with evidence of loss of disc height, endplate sclerosis and endplate osteophyte formation. Mild spondylotic change is present in the discovertebral joints at the other levels. Moderate multilevel arthritic change is present in the facet joints. Minimal arthritic change is present in the sacroiliac joints.
At L1/L2, no disc bulge is seen. There is no evidence of neural compression.
At L2/L3, no disc bulge is seen. There is no evidence of neural compression.
At L3/4 there is a minor broad based disc bulge. This disc is abutting the anterior part of the thecal sac. The spinal canal is narrowed at this level, due to a combination of the disc bulge, ligamentum flavum hypertrophy and facet joint arthritis. The disc is causing mild narrowing of the exit foramina bilaterally. The disc is abutting each L3 nerve root within their respective exit foramen.
At L4/L5 there is a minor broad-based disc bulge. The disc is abutting the anterior part of the thecal sac. This disc is causing minor narrowing of the exit foramina bilaterally.
At L5/S1, there is a minor broad-based disc bulge. The disc is abutting the anterior part of the thecal sac and the proximal portion of each S1 nerve root. Endplate osteophytes and the intervertebral disc are causing mild narrowing of the exit foramina bilaterally. These structures are abutting the left L5 nerve root within the exit foramen”.
MRI of the lumbar spine, 29 March 2019[37]
[37] AD3 p 64.
The report concludes:
“Facet joint arthropathy, ligamentum flavum thickening and disc protrusions at the lower three lumbar level with some mild canal narrowing. There is bilateral lateral recess S1 root compression as well as left L5 lateral recess root compression”.
Bone scan, 5 April 2019[38]
[38] AD3 p 66.
The report concludes:
“Discovertebral degenerative arthritis at the L5-S1 level of the lumbar spine.
Degenerative arthritis in the right facet joint at the L3-4 and L4-5 levels.
Recent fractures of the 2nd, 3rd, 4th, 5th, 6th and 7th ribs.
The increased activity in the left greater trochanter is consistent with bursitis/enthesitis”.
Chest X-ray 12 July 2019
The report states:[39]
“Chest X-ray and left rib view
Bronchovascular crowding in the lower zone bilaterally suggestive for atelectatic change…
Sublet step/deformity and a subtly discernible fracture line seen at the level of the sixth and seventh ribs posterolaterally suggestive for undisplaced fractures at these levels.No discernible pneumothorax appreciated.”
[39] AD3 p 62.
MRI of the lumbar spine, 14 November 2019[40]
[40] AD3 p 63.
The report concludes:
“Discovertebral changes at the lower three lumbar levels. There is a right paracentral L5-S1 disc protrusion impinging on the right S1 nerve root and there is also some lateral recess narrowing at L4-5 but without definite root impingement”.
X-ray chest and left ribs, 27 January 2021[41]
[41] AD3 p 717.
The report finds:
“The cardiac silhouette is normal. There is mild non-specific coarsening of the bronchovascular markings. The contour of the fourth to seventh ribs inclusive on the left side is irregular. The appearances are compatible with fractures of these ribs. These fractures are probably old.”
Bone scan 10 November 2021[42]
[42] AD3 p 673.
The report concludes:
“Discovertebral arthritis at the L5/S1 level of the lumbar spine.
Arthropathy in the right facet joint at the L3-4 level.
Arthritis in the left T12 costovertebral junction.
Arthritis in the left sacroiliac joint and both knee joints”.
MRI lumbar spine, 15 November 2021[43]
[43] AD3 p 1,044.
The report concludes:
“1. Discovertebral changes with disc dessication as well as an annulus tear and disc bulge at the lower 3 lumbar levels. There is some mild canal narrowing.
2. Right and possibly left L5 lateral recess S1 root impingement.”
Medico-legal reports
Dr Peter Bentivoglio, neurosurgeon
Dr Bentivoglio assessed the claimant and provided a report dated 16 April 2020.[44] Dr Bentivoglio reported Mr Odeesho was followed up by this local doctor because of the chest wall pain on the left side and the lower back pain going into the right leg which started after the accident. He reported Mr Odeesho conceded he did have back issues before the accident, but no treatment was necessary.
[44] AD4 p 27.
On examination Dr Bentivoglio noted an antalgic gait, an absent right ankle reflex and decreased sensation in the right S1 distribution. He considered the surgery proposed by Associate Professor Sheridan was reasonable.
Dr Bentivoglio diagnosed multiple rib fractures on the left side and an exacerbation of lower back pain going into the left leg secondary to pre-existing degenerative disease of the lumbar spine. In relation to causation Dr Bentivoglio opined the accident exacerbated the pre-existing degenerative disease in the lumbar spine which is now causing lower back pain and sciatica.
Dr Bentivoglio assessed a 10% WPI for the injury to the lumbar spine on the basis the claimant is in DRE Category III where he has a radiculopathy with S1 nerve root compression.
Dr Yuk Kai Lee, orthopaedic surgeon
Dr Lee assessed the claimant at the request of his lawyer on 5 November 2020.[45] He reported the lower back was still painful, the ribs were painful and to a lesser extent, the neck. He noted the back pain radiates to the right leg, the outer toes and the sole feel numb.
[45] AD3 p 44.
In the cervical spine he reported tenderness at the cervicothoracic junction. He reported flexion was 40º, extension 30º, right rotation 50º, left rotation 40º, right tilt 20º and left tilt 20º. He noticed diffuse tenderness at both shoulders.
Dr Lee diagnosed injury to the cervical spine and both shoulders, fractured ribs mainly on the left side and aggravation of degenerative changes and nerve root compression at L5/S1 on the right side. Dr Lee agreed surgical treatment to his back was appropriate.
Dr Lee assessed a DRE Lumbar Category III giving 10% WPI, DRE Cervical Category II giving 5% WPI, 12% upper extremity impairment from loss of right shoulder movement converting to 7% WPI, and 14% upper extremity impairment from loss of left shoulder movement converting to 8% WPI.
Earning Capacity Assessment Report
Dr Andrew Keller provided a report dated 22 December 2021.[46] He reported the claimant’s current symptoms were constant dull pain radiating to the right leg and chest pain.
SUBMISSIONS
[46] AD4 p 71.
Claimant’s submissions
The claimant provided submissions dated 25 November 2021 disputing the insurer’s assertion there was no report of any injury to the cervical spine at Liverpool Hospital. The claimant notes the Discharge Summary disclosed lower cervical spine tenderness and cervical spine precautions including a collar were taken pending the results of a CT scan. Further when the scan was taken the history given was of “C spine tenderness”.
The claimant also submits the nature of the forces to which the claimant’s spine was subjected is demonstrated by the fractures of the 4th, 5th and 6th ribs.
The claimant notes the Admission Summary disclosed a complaint of “C spine pain; left shoulder and chest wall pain”. Further, at page 7 of the hospital notes a seatbelt mark on the left upper shoulder was identified consistent with the claimant’s position in the vehicle.
The claimant provided submissions dated 6 June 2022.
The claimant submits the evidence establishes that the claimant does at least suffer from some type of non-uniform loss of range of motion in the neck and has a history of non-verifiable radicular complaints.
The claimant submits Medical Assessor Perla placed undue weight on the apparent lack of shoulder complaints in the hospital discharge summary and general practitioner (GP) clinical notes. The claimant relies upon the decision of the Court of Appeal in Mason v Demasi [2009] NSWCA 227 and submits he was primarily focused on his back and ribs following the accident. Furthermore, Medical Assessor Perla found the shoulder injuries are a type of Nguyen injury (referred pain) which often become more obvious with the passage of time.
The claimant relies on the following comments by other examiners in relation to the shoulders:
· in his report dated 14 July 2020 Dr Manohar states “…He also has pain in the left shoulder…” and “…He sustained…left shoulder pain…”;
· the Range of Joint Motion Evaluation Chart from Rehab Solutions Australia clinical notes refers to shoulder pain, documents measurements of the range of motion for both shoulders and demonstrated reduced range of motion in both shoulders;
· in the “Orebro Musculoskeletal Pain Questionnaire” dated 10 October 2020, the claimant indicated he had pain in the neck, shoulder, upper back, lower back, and leg, and that the pain had been persistent for over one year, and
· the Exercise Rehab Report dated 10 October 2020 noted the shoulders “always” had some type of pain, with an intensity of “5/10” which might be aggravated “when moving into external rotation”.
At the request of the Panel the claimant provided further submissions dated 28 September 2022. The claimant submits whilst Dr Teychenne’s testing revealed clinical findings of radiculopathy, that radiculopathy did not persist, and the claimant was asymptomatic at the time of the accident.
The claimant submits the clinical findings of radiculopathy were not a primary complaint at the time of treatment with Dr Teychenne and indeed, it was a tumultuous time for the claimant who was suspected of suffering from hypochondria.
The claimant submits the pre-existing clinical notes should be compared with the post-accident notes where it is clear from the claimant’s treatment with Dr Menashi and Assoc Prof Sheridan his present condition was materially caused by the accident.
The claimant refers to the Guidelines and the test of causation noting the accident does not have to be a sole cause as long as it is a contributing cause which is more than negligible to the injury.
Furthermore, in considering whether the claimant suffers from a pre-existing impairment the claimant points out that it is not a question of impairment from 2012 to 2014 but whether the claimant suffered from a pre-existing impairment at the time of the accident. The claimant submits there is no available contemporary evidence that can support a finding that the claimant’s back was symptomatic at the time of the assessment. The claimant notes that “if there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored”.
The claimant provided supplementary submissions dated 14 October 2022. The claimant submits:
“The most significant finding in Dr Teychenne’s clinical notes is the CT scan of the lumbar spine dated 22 December 2010. It reveals at L5/S1 level, ‘…there is impingement upon the right sided nerve root in the right lateral recess.’
By comparison to contemporaneous evidence, such as the MRI lumbar spine dated 16 November 2021, investigations at the L5/S1 reveals, ‘…There is ligamentum flavum thickening and facet joint arthropathy. The combination of changes impinging on both S1 nerve roots, more marked on the right…’
It appears that Dr Teychenne also had available to him CT brain scan dated 15 June 2012 to investigate headache symptoms, and MRI cerebral dated 25 July 2012 to investigate asymmetric hearing loss. It suggests that the primary complaint with Dr Teychenne was not specifically in respect of the claimant’s back condition, but with his neurological symptoms generally.”
Insurer’s submissions
The insurer provided submissions dated 7 July 2022 addressing the test to be determined by the delegate of the President, that is, whether there was a material error in the certificate of Medical Assessor Perla.
The insurer provided submissions dated 7 April 2021 in respect of the permanent impairment dispute.[47]
[47] AD4 p 23.
The insurer disputes the claimant sustained injury or impairment caused by the accident to the neck or either shoulder. The insurer notes the ambulance report states, “nil c-spine pain”. The insurer submits the hospital failed to identify any injury to the cervical spine or bilateral shoulders, noting the discharge summary states, “nil midline C spine tenderness, collar in situ”. In relation to the lower limbs the discharge summary records “nil significant wounds or bony tenderness, ROM normal throughout joints, neurovascularly intact”.
However, thereafter the insurer notes there is no mention of neck or shoulder injury when the claimant saw Dr Menashi on 21 January 2019, 11 February 2019 or on 19 February 2019 or in the certificates of capacity completed by Dr Menashi. The insurer notes there is no mention of neck or shoulder injury in the reports of Rehab Solutions, including in the Exercise Rehab reports of 6 June 2019, 2 July 2019 or 2 September 2019. There is no mention of neck or shoulder injury in the Benchmark Report of 7 August 2019, in the IPAR vocational assessment report of 2 October 2020, in the reports of Assoc Prof Sheridan or in the reports of Ms Mehieddine, physiotherapist. Further, the insurer notes no mention was made to Dr Bentivoglio of neck or shoulder complaints.
The insurer does not dispute the injury to the lumbar spine and relies upon the opinion of Dr Bentivoglio who assessed a 10% WPI based on DRE Category III of the lumbosacral spine.
The insurer provided further submissions dated 16 September 2022 asserting that the available objective treating material supports the existence of a pre-existing lumbar radiculopathy. The insurer notes Dr Teychenne on 28 June 2012 reported a 12 month history of back pain radiating to the right leg and foot to the little toe with lateral foot numbness. He noted the right ankle jerk was absent consistent with a right S1 radiculopathy and he reported the CT scan of the lumbar spine demonstrated an L5/S1 broad based disc bulge with posterolateral component impinging on the right sided nerve root. The insurer notes the nerve conduction studies were consistent with right L5/S1 radiculopathy.
The insurer notes on 10 March 2014 Dr Menashi reported pain, spasm in right calf and pain travelling to the tip of the toes.
The insurer notes the opinion of Dr Bentivoglio is consistent with the presence of pre-existing degenerative changes in the lumbar spine and when supplemented with the evidence in Dr Teychenne’s records is consistent with a pre-existing lumbar radiculopathy. The insurer also notes that the CT of the lumbosacral spine of 2 February 2019 reported spondylotic changes in the lumbosacral spine at various levels while the regional bone scan of 5 April 2019 also referred to discovertebral degenerative arthritis at L5/S1 and degenerative arthritis in the right facet joint at the L3/4 and L4/5 levels.
The insurer provided further submissions dated 21 October 2022. The insurer argues that the MRI of the lumbar spine dated 16 November 2021 does not constitute contemporaneous evidence. The insurer submits the Panel should have regard to the evidence which is contemporaneous with the accident and that evidence is to be found in the MRI of the lumbar spine dated 15 November 2019. The insurer notes the conclusions of that MRI correspond with the conclusions of the CT scan of the lumbar spine dated 22 December 2010.
THE MEDICAL EXAMINATION
Mr Odeesho was examined by Medical Assessor Oates at the Commission rooms on 1 October 2022.
Pre-accident medical history and relevant personal details
Mr Odeesho came from Iraq in 2010. He worked for five years with an NGO there. When he came to Australia, he studied for four years completing a Certificate IV and Advanced Diploma in Community Services. He has an interpreter’s licence. He was a pathology courier for one year and volunteered. He became a sole trader as a driving instructor from 2016.
He changed his address about three months before the accident. His GP for many years was Dr Menashi at Wakely and then at Greenfield Park. In 2020 he changed to Dr H Amir, Fairfield, who was closer to his residence.
On 6 March 2012, he had mesh repair of umbilical and bilateral inguinal hernias by Dr Youkhani. Mr Odeesho said he has had no recurrence of hernias since. After the operation, he developed tinnitus. He was referred to a neurologist and saw Dr Teychenne on 28 June 2012. He said that the doctor performed an MRI scan and MRA scan of the brain which were both normal, and he was told he should consult an ear nose and throat (ENT) specialist.
Mr Odeesho said he had no back or leg symptoms prior to the accident. Medical Assessor Oates asked Mr Odeesho about the GP record of 14 June 2012, which said he was still complaining of pain in the back of the headaches and tinnitus. Mr Odeesho said he did not have back pain, and this “might mean back of the head”. Medical Assessor Oates pointed out Dr Teychenne in his report of 28 June 2012 referred to a 12-month history of lumbar spine pain, extending into the right buttock and down the posterolateral right thigh and right lower leg to the dorsolateral right foot, into the right 5th toe, with persistent numbness over the lateral aspect of the sole of the right foot. Mr Odeesho said that was not right and he does not recall any problems with back pain or right leg pain prior to the accident. Medical Assessor Oates asked Mr Odeesho about the reference by Dr Teychenne to a CT scan of the lumbar spine which showed a broad-based posterior L5/S1 disc bulge with a right posterolateral component impinging on the right side of the nerve root within the lateral recess. Mr Odeesho did not remember having a CT scan of the lumbar spine in 2012.
The report of the earlier CT scan was received from the parties after Mr Odeesho’s examination. It was dated 22 December 2010 and had been ordered by his GP Dr Menashi. There was a broad based L5/S1 posterior disc bulge, with a right posterolateral component and impingement upon the right sided nerve root in the right lateral recess.
Dr Teychenne found positive straight leg raise on the right at 60° with no right ankle jerk, EDB wasting consistent with right S1 radiculopathy.
The Panel finds the CT scan is of diagnostic value because it is concordant with the clinical signs reported by Dr Teychenne, two years later. This indicates the right S1 radiculopathy was chronic. Furthermore, the neurological findings in the lower extremities found at examination today are broadly consistent with those found by Dr Teychenne, indicating a longstanding stable right S1 lumbar radiculopathy, pre-existing the accident
Mr Odeesho was found to have an early multi-nodular goitre of the thyroid gland but saw an endocrinologist, Dr Tejani, and was told he did not have a condition requiring treatment.
He has had no subsequent accidents or injury.
Mr Odeesho said he is married, and his wife is on a half pension. There are two daughters living at home; one of whom studies and cares for her mother, and the other works part-time. They live in a rented house. It is a duplex and his other daughter, who is married, lives in the adjoining part of the house. The two daughters do the housework, and his son-in-law does the yard work and will take the garbage bin out if he is not able to do it if he is having a bad day with his back. He said if he tries to mow the lawn, his back is sore for a week.
He doesn’t smoke or drink alcohol.
History of the motor accident
Mr Odeesho states he is right hand dominant.
Mr Odeesho said on 14 January 2019, he was the front seat passenger in a dual control 2012 Toyota Yaris small sedan, with a student driver. The student driver stopped to turn right with was no traffic in front of them. The vehicle was rear-ended by a black hatchback which was travelling at speed. The speed limit on the road was 60kph. He looked up in the mirror and was alarmed and told the driver to brace. He had a lap sash seatbelt on. The side airbags went off. He lost consciousness and said he woke up in the ambulance with somebody asking him orientation questions. He was taken to Liverpool Hospital.
The ambulance records noted that upon arrival, Mr Odeesho was sitting on the side of the road alert and orientated, complaining of central chest pain and left rib pain, but there was no neck, abdomen, head or limb pain. Mr Odeesho could not recall any of this.
The hospital records stated there was no loss of consciousness, Mr Odeesho had good recall of events, there was left chest and low back pain and lower cervical spine tenderness, but no midline cervical spine tenderness. There was a seatbelt contusion over the left clavicle shoulder area with mild tenderness in the left chest and mild lower thoracic and upper lumbar tenderness.
A CT trauma series was done and there were undisplaced fractures of the left 6th and 7th ribs with query chronic left 4th and 5th rib fractures. Mr Odeesho said that he had had no previous rib fractures. Investigation also showed bilateral indirect inguinal hernia. He was kept overnight for observation in view of the chest injury.
Mr Odeesho said there was no other injury apart from a seatbelt bruise to the left neck/clavicle area and across the abdomen.
Mr Odeesho saw Dr Menashi, after the accident. He was sent for a CT scan of the lumbar spine showing the L5/S1 disc abutting both S1 nerve roots and endplate osteophytes and disc abutting the left L5 nerve root. He was referred to Dr Sheridan whom he saw on 27 March 2019.
Mr Odeesho told Medical Assessor Oates that within one month of the accident, he had developed pain radiating from the lumbar spine through the right buttock, posterior right thigh and calf, and into the lateral right foot, with numbness of the lateral right three toes and lateral right leg. He also had left-sided neck discomfort into the trapezius intermittently.
After the accident of 14 January 2019, Mr Odeesho was off work for some six months because of broken ribs and chest pain with difficulty breathing. He then returned to work as a driving instructor doing four to eight hours per week spread over three or four days and continues at this level.
Dr Sheridan ordered an MRI scan which showed facet joint degenerative changes and disc degeneration at L5/S1 with impingement on the right S1 nerve root and left S1 nerve root. A bone scan was done showing six fractured left ribs from 2 to 7 with degenerative facet joints at L3/4 and L4/5, and degenerative changes at L5/S1. He had some hydrotherapy. Dr Sheridan ordered two cortisone injections to the back done 10 days apart. There was no benefit when these were performed in 2019.
Mr Odeesho had an update MRI scan on 14 November 2019 and at specialist review on 24 December 2019, he was told he was a candidate for L5/S1 laminectomy with discectomy and rhizolysis, but Mr Odeesho was scared to have surgery, particularly in the COVID era. He tried physiotherapy but it stirred up his back. He continued with hydrotherapy which gave partial benefit.
Mr Odeesho had two further cortisone injections in 2020 but again there was no benefit. He had a repeat of two injections 10 days apart in April 2022 and he says these injections helped him more than the previous ones had. He had an update bone scan and MRI scan in November 2021 showing right and possibly left L5 lateral recess impingement and S1 nerve root impingement. Mr Odeesho said he also had milder left buttock symptoms radiating to the posterior thigh and to the mid-calf, and at times to the ankle, when the lumbar spine was stirred up, but no numbness as occurred on the right side.
Current symptoms
Mr Odeesho has soreness in the lower back with aching every day. He feels stressed if he sits too much and feels better if he moves around. Pain radiates into the posterolateral right thigh to the calf and lateral foot. Whilst the back and right leg pain improved since the latest cortisone injections, he still has numbness in the lateral right calf and foot.
Mr Odeesho has left neck discomfort and tingling in the left hand, involving all fingers, about two to three times per week. He was worried it was a cardiac problem and saw the cardiologist but was cleared from that point of view.
He was told to walk 35-40 minutes a day and he can sit for two hours at a time.
Current treatment under Dr Amir, Fairfield Heights, consists of an analgesic balm to the back and left side of the neck and trapezius, and Panadol Osteo. He goes to hydrotherapy once a week in blocks as approved by the insurer.
He will see Dr Sheridan again in November 2022, after which he may have two further cortisone injections.
Investigations
From the file:
These investigations are referred to above.
He brought the following imaging to the assessment:
2 February 2019 – CT lumbar spine.
EXAMINATION
He removed a Velcro back brace and outer clothing. His height was 173cm and weight 104.4kg with a heavy build. He sat with some discomfort and got up after one hour of interview.
Lumbar spine – lordosis was mildly reduced. Flexion was one-half normal range with complaint of low back pain on the right, radiating to right buttock and posterior thigh. Extension one-half normal. Lateral flexion one-third normal bilaterally. Rotation one-half normal bilaterally.
Reflexes were all symmetrical except for the right ankle jerk, which was absent even with reinforcement and when re-tested in the kneeling position. Power: right equals left. Sensation to light touch and pin prick was reduced in the lateral right calf and foot.
Supine straight leg raising was actively resisted from complaints of pain at 20° on the right and 30° on the left. A nerve stretch test could not be confidently performed. There was no muscle spasm or guarding. There was tenderness in the region of L5/S1 to the right side and slightly to the left side.
Thigh girth: right 56.5cm, left 56cm at 10cm above superior patellar pole. Leg girth: right 44cm, left 43cm at 14cm below the inferior patellar pole.
Cervical spine – normal contour. There was no guarding and no tenderness on examination. Flexion and extension were three-quarters of normal range. Lateral flexion one-half bilaterally and rotation two-thirds bilaterally. Reflexes and power in the upper limbs were normal. Sensation was intact in the upper limbs except for reduced light touch sensation over the entire left palm but not the dorsum of the hand in a non-dermatomal distribution.
Upper arm girth: right 33cm, left 34cm at 10cm above elbow crease. Forearm girth: right 31cm, left 30cm at 5cm below the elbow crease.
Right and left shoulders – Flexion: right 180°, left 130° limited by pain in the left chest wall and lower back. Extension: right equals left equals 50°. Abduction: right 170°, left 140° limited by left chest wall pain. Adduction: right equals left equals 40°. External rotation: right equals left equals 90°. Internal rotation: right equals left equals 90°.
CONSISTENCY
There is inconsistency in the claimant’s version of his past history regarding the lumbar spine. This has been discussed above. He was cooperative at the time of the physical examination.
DIAGNOSIS AND CAUSATION
Cervical spine
The cervical spine soft tissue injury was caused by the accident because this injury is mentioned in the hospital records and there has been a consistent history of complaint thereafter.
Lumbar spine
The lumbar spine soft tissue injury, with aggravation of a pre-existing L5/S1 disc protrusion with right S1 nerve root impingement was caused by the accident where complaints of lower back pain were recorded by Liverpool Hospital, where Dr Menashi recorded complaints pertaining to the lumbar spine, where it was referred to by the claimant in the application for personal injury benefits and having regard to the history of ongoing complaint and treatment.
Whilst the records of Dr Teychenne indicate a longstanding stable right S1 lumbar radiculopathy the only relevant complaint between 2012 and the accident on 14 January 2019 was when Dr Menashi reported pain, spasm in the right calf and pain travelling to the tip of the toes on 10 March 2014. Thereafter, for the following five years the claimant was asymptomatic until the accident. The Panel accepts whilst the accident was not the sole cause of the injury to the lumbar spine it was a contributing cause which was more than negligible having regard to the chronicity of the claimant’s symptoms since the accident.
Left shoulder
The Panel finds the claimant sustained soft tissue injury to the left shoulder caused by the accident where the clinical notes of Liverpool Hospital following the accident on 14 January 2019 recorded the presence of a seat belt sign over the left clavicle/shoulder.
No further complaint pertaining to the left shoulder was recorded until Dr Manohar reported pain in the left shoulder on 14 July 2020. On 10 October 2020 Mr Beshay exercise therapist reported the shoulders “always’ had some type of pain and shoulder pain was indicated in the Orebro Musculoskeletal Pain Questionnaire of the same date.
Dr Bentivoglio did not report any complaint pertaining to either shoulder when he assessed Mr Odeesho in April 2020 although Dr Lee reported diffuse tenderness at both shoulders on 5 November 2020. In December 2021 no complaint was recorded by Dr Keller in relation to the left shoulder.
The panel also notes when examined by Medical Assessor Oates Mr Odeesho complained of chest wall pain rather than shoulder pain and he reported the restrictions in shoulder movement were because of pain in the left chest wall and lower back. The restriction of movement was unrelated to the shoulder joint and was not due to referred pain from the cervical spine.
The Panel finds any soft tissue injury to the left shoulder has resolved where:
· there were no recorded complaints of left shoulder pain or restriction of movement for 18 months between the claimant’s presentation at hospital following the accident and the complaint recorded by Dr Manohar on 14 July 2020;
· there was no complaint recorded by Dr Bentivoglio in respect of the left shoulder;
· the restriction of movement demonstrated on clinical examination did not correlate with injury to the shoulder joint or referred pain from the cervical spine;
· the restriction of movement demonstrated was remote from the chest wall and lower back;
· the symptoms complained of by Mr Odeesho did not correlate with the limitations observed by Medical Assessor Oates on examination, and
· whilst the Panel accepts the claimant continues to experience pain in the left chest wall it finds it is not anatomically tenable for pain in either the left chest wall or the lower back to limit active movement of the shoulder joint.
Right shoulder
The Panel finds the accident was not a cause of injury to the right shoulder where no complaint has been recorded in respect of the right shoulder and where the claimant at the time of the examination did not acknowledge injury to the right shoulder.
Rib fractures
Multiple rib fractures were caused by the accident because this injury is mentioned in the ambulance and hospital records and confirmed by radiological imaging.
Right lower extremity
The right lower extremity referred symptoms from the lumbar spine were caused by the accident where the medical records following the accident consistently refer to complaints of pain radiating down the right leg with paraesthesia and numbness, and general weakness in the right leg.
PERMANENT IMPAIRMENT
Cervicothoracic spine
There was no dysmetria. There were no non-verifiable radicular complaints, there was no guarding and no tenderness. There was no radiculopathy. Symptoms were present and in accordance with Table 73 of the AMA 4 Guides this places Mr Odeesho in DRE Cervicothoracic Category I giving 0% WPI.
Lumbosacral spine
There was no dysmetria. There were bilateral radicular complaints. There was reflex asymmetry with loss of right ankle jerk and partial loss of sensation following the right S1 dermatome. This justifies a diagnosis of right S1 lumbar radiculopathy. There was no clinical evidence of left sided radiculopathy. This places him in DRE Lumbosacral Category III giving 10% WPI.
There is documented evidence of a pre-existing right-sided lumbar radiculopathy, with consistent imaging. A CT scan of the lumbar spine on 22 December 2010 identified a broad based L5/S1 posterior disc bulge, with a right posterolateral component and impingement upon the right sided nerve root in the right lateral recess. Whilst denied by the claimant, Dr Teychenne in his report of 28 June 2012 referred to a 12-month history of lumbar spine pain, extending into the right buttock and down the posterolateral right thigh and right lower leg to the dorsolateral right foot, into the right 5th toe, with persistent numbness over the lateral aspect of the sole of the right foot.
On 5 July 2012, Dr Teychenne found positive straight leg raise on the right at 60° with no right ankle jerk and EDB wasting consistent with right S1 radiculopathy. Dr Teychenne arranged electrophysiological studies that supported the presence of right L5/S1 radiculopathy.
On 10 March 2014 Dr Menashi reported pain, spasm in right calf and pain travelling to the tip of the toes.
Clause 6.31 of the Guidelines states:
“The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored”.
The Panel was satisfied that there was sufficient objective evidence that Mr Odeesho most likely satisfied at least two of the criteria for lumbar radiculopathy in 2012 as there was concordant evidence on radiological imaging of pathology consistent with the clinical signs documented. However, the evidence of Mr Odeesho, supported by the medical evidence suggest those symptoms subsided.
In the absence of reported symptoms during the four years preceding the accident, the Panel is not satisfied that objective evidence of a pre-existing symptomatic permanent impairment existed in the same region at the time of the accident. In accordance with the Guidelines and in the absence of objective evidence of the pre-existing symptomatic permanent impairment, its possible presence must be ignored. Accordingly, the Panel does not propose to make a deduction for any pre-existing symptomatic impairment.
Both shoulders
On examination there was no clinical evidence of discrete injury to either shoulder joint. The range of movement in the right shoulder was within normal limits, giving no assessable permanent impairment.
There was restriction of active range of flexion and abduction in the left shoulder which was said by Mr Odeesho to be limited by the left chest wall and low back pain, rather than referred symptoms from the cervical spine, hence the Nguyen[48] principle does not apply.
[48] Nguyen v Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351
The Panel considered it was not medically plausible that symptoms arising from the left chest wall and low back would cause restriction of range of motion of the shoulder.
The Panel has found that the soft tissue injury sustained by Mr Odeesho to the left shoulder has resolved.
The Panel finds there is no assessable permanent impairment of the left shoulder resulting from the accident where the soft tissue injury has resolved, where there are no referred symptoms from the cervical spine and where it is not anatomically tenable for the claimant to have restricted range of movement as a result of pain in the left chest wall or lower back.
Ribs
The Panel accepts Mr Odeesho has continuing chest wall pain although the fractures have reportedly healed. In accordance with cl 6.23 of the Guidelines uncomplicated healed rib fractures do not result in any assessable impairment.
Right lower extremity
This is referred pain from the back to the right leg into the toes and is a component of the lumbar radiculopathy.
PANEL DECISION
The Panel has found that the accident was a cause of the following injuries:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, with aggravation of a pre-existing L5/S1 disc protrusion with right S1 nerve root impingement;
· right lower extremity – referred pain from the back to the right leg into the toes;
· fracture of the 2nd, 3rd, 4th, 5th, 6th and 7th ribs, and
· left shoulder – soft tissue injury (resolved).
The Panel finds the following injuries not caused by the accident:
· injury to the right shoulder.
The Panel found that the following injuries give rise to a permanent impairment:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury with aggravation of a pre-existing L5/S1 disc protrusion with right S1 nerve root impingement.
The Panel provides the following chart as a summary of the assessment of WPI:
Body part or system
AMA guides/ guidelines references chapter/ page/ table
Permanent yes/ no
Current percent WPI
Percent WPI from pre-existing or subsequent causes
Percent WPI due to motor accident
1
Cervico- thoracic spine
AMA 4, CH3, T73, P110. DRE1
Yes
0
0
0
2
lumbosacral spine, including right lower extremity
AMA 4, CH3, T 72, P110. DRE3
Yes
10
0
10
Combined WPI equals 10%.
0
2
0