Petersen v QBE Insurance (Australia) Limited
[2022] NSWPICMP 236
•25 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Petersen v QBE Insurance (Australia) Limited [2022] NSWPICMP 236 |
| CLAIMANT: | Alicia Petersen |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL: | Member Susan McTegg Dr Margaret Gibson Dr Mohammed Assem |
| DATE OF DECISION: | 25 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Cervical spine, thoracic spine, right and left shoulder; referred pain; assessment by analogy; permanent impairment; whole person impairment (WPI); the claimant was injured in a motor vehicle accident; the dispute related to the assessment of whole person impairment; Motor Accident Compensation Act 1999; Held- inconsistency of shoulder movement; range of motion not reliable and valid method of determining impairment; assessment by restriction in flexion and abduction at 2% WPI for each shoulder; alternatively assessed by analogy for mild crepitations of the right AC joint resulting in 2% WPI for each shoulder; cervical spine assessed as DRE category 1 or 0% WPI; thoracic spine assessed as DRE category 1 or 0% WPI; injures caused by accident give rise to WPI not greater than 10%. |
| DETERMINATIONS MADE: | The Panel revokes the certificate of Medical Assessor Kumar dated 22 September 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10%: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · injury to the right shoulder referred from the cervical spine; and · injury to the left shoulder referred from the cervical spine. |
STATEMENT OF REASONS
INTRODUCTION
On 5 August 2017 Ms Alicia Petersen (the claimant) was driving her Suzuki Swift through a roundabout when another car on her left failed to give way and collided with the passenger side of her car in a T-bone fashion (the accident). Police attended the scene of the accident and Ms Petersen was taken home by her partner. Ms Petersen consulted a general practitioner (GP) the following day.
Ms Petersen is now 28 years of age.
Following the accident Ms Petersen submitted a Personal Injury Claim form dated 9 August 2017 in which she asserted she sustained the following injuries in the accident:
· whiplash;
· neck injuries;
· back injuries (top, mid, lower);
· shoulder injury (right);
· arm pain (right), and
· broken glass shards (face, neck, back, fingers).[1]
[1] AD2 p 627
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Petersen under the Motor Accident Compensation Act 1999 (MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Petersen as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] Section 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The relevant medical assessment was conducted by Medical Assessor Damodaran Kumar. He issued a certificate dated 22 September 2021.
An application for review of the medical assessment of Assessor Kumar was lodged on 22 October 2021 within 28 days of the date on which the certificate of Assessor Kumar was made available to the parties.[3]
[3] Section 63(7) of the MAC Act.
On 17 December 2021, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the PIC were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made 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 Commission.[5] The President’s delegate referred this application for review to the panel.
[5] Section 63(3) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines
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.[7]
[7] 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.[8]
[8] 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.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 10 February 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 filed a bundle of documents paginated from pages 1 to 877 (AD2). The insurer had uploaded to the portal a bundle of documents in support of the Reply on 9 February 2022 (R1). No further documents were filed by the insurer.
On 10 March 2022 the Panel agreed an examination was required.
MEDICAL ASSESSMENT UNDER REVIEW
The following injuries were referred to Assessor Kumar for further assessment:
· cervical spine – whiplash associated disorder/aggravation of pre-existing cervical spondylosis;
· thoracic spine;
· left shoulder – Nguyen principle – referred from neck, and
· right Shoulder – Nguyen principle – referred from neck.
Medical Assessor Kumar examined Ms Petersen on 11 June 2021 and provided a Certificate dated 22 September 2021.[10] He assessed a 5% whole person impairment (WPI) due to injury to the neck and a 5% WPI due to injury to the right shoulder.
[10] R1 p 16.
Assessor Kumar reported on 5 August 2017 Ms Petersen was the seat belted driver of a Suzuki Swift that was passing through a roundabout when a car on her left failed to give way when entering the roundabout colliding with the passenger side of her vehicle. Police attended. The car was driveable. She called her partner who drove her home. Assessor Kumar stated she claimed, “in the accident her body was jerked heavily sideways and that her right side slammed into the driver’s side door”. He also reported the window broke into fragments.
Ms Petersen consulted her usual GP Dr Castro at Erskine Park Medical Centre the following day complaining of neck and upper back pain. Assessor Kumar stated there was no mention of any injury to the left shoulder or the lower back.
He noted Ms Petersen was involved in a subsequent accident on 20 November 2018 but did not sustain any physical injuries.
Assessor Kumar reported complaints of pain, discomfort, and stiffness with restricted movement in the neck. The neck pain radiated to the back of the head causing headaches and also to the right shoulder and down the right arm associated with numbness and weakness in the right arm. The pain also radiated down the spine to the mid-back associated with discomfort and stiffness.
Assessor Kumar reported Ms Petersen exhibited full and symmetrical movements in flexion, extension, lateral flexion and rotation of the lumbar spine. He reported the thoracic spine examined normally.
Assessor Kumar reported Ms Petersen demonstrated 80% of normal movement of her neck. Extension was limited to 50% of normal movement, rotation was limited to 60% of normal movement on both sides. In lateral flexion Ms Petersen was able to demonstrate 70% of normal movement on the right side, but only 50% of normal movement on the left. Assessor Kumar observed tenderness in the lower cervical spine on palpation and on the right side of the neck. He also observed guarding and some spasm on the right lower cervicothoracic muscles.
Assessor Kumar found the following range of movement of the shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
180°
Extension
30°
50°
Adduction
40°
50°
Abduction
110°
180°
Internal Rotation
70°
90°
External Rotation
60°
90°
Assessor Kumar diagnosed a soft tissue injury of the cervical spine and a soft tissue injury of the right shoulder as a result of a direct impact with the right door.
Assessor Kumar reported he had not found any contemporaneous evidence of any injury to the left shoulder; Ms Petersen reported no symptoms in the left shoulder. He concluded any injury to the left shoulder was not related to the accident. He also found any injury to the thoracic spine had resolved and was not assessable.
EVIDENCE BEFORE THE REVIEW PANEL
Certificate of Medical Assessor Nigel Menogue
Ms Petersen was initially assessed by Medial Assessor Menogue.[11] He issued a certificate dated 2 March 2020 in which he certified a 4% WPI for injury to the right shoulder arising secondary to the cervical spine injury based on the Nguyen principle.
[11] R1 p 5.
Assessor Menogue found Ms Petersen had sustained a musculoligamentous strain of the cervical spine caused by the accident but assessed a 0% WPI. He found the claimant had not sustained injury to the left shoulder or the mid and lower back in the accident.
Assessor Menogue reported Ms Petersen complained of intermittent cervical spine pain which can spread to the right occiput and occasionally spill over to the outer upper right arm and down to the interscapular region. He reported Ms Petersen denied any primary or isolated right shoulder pain and denied any left upper limb symptoms of pain or sensory change. He noted movement of the right shoulder can result in right neck pain.
Assessor Menogue found Ms Petersen was non-tender on palpation of the acromioclavicular joints. He recorded the following range of movement of both shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
180°
Extension
50°
50°
Adduction
40°
40°
Abduction
110°
170°
Internal Rotation
80°
80°
External Rotation
80°
80°
Assessor Menogue reported there were no symptoms relating to the left shoulder or left upper limb. He also noted there was a full and normal range of movement involving the thoracolumbar spine and concluded that any discomfort in the thoracic spine region was attributable to the cervical spine.
The matter was thereafter referred for further assessment on the basis of a deterioration in the claimant’s injuries. It was this application which resulted in the assessment by Medical Assessor Kumar, the subject of this dispute.
Statement of Alicia Petersen
Ms Petersen provided a statement dated 6 April 2020. She was born in 1993 and is now 28 years of age.
Ms Petersen described constant neck pain radiating into the right shoulder, arm and hand with associated weakness and tingling throughout her arm. She stated the pain was aggravated by lifting and carrying, sitting in one spot, using a computer and performing heavy and repetitive tasks. She also described an exacerbation of pain when lifting her arm above shoulder height. Ms Petersen also described constant pain the mid back, centred between the shoulder blades, aggravated by sitting and standing for prolonged periods, and by lifting and carrying.
Treating medical records
Records of Erskine Park Family Clinic[12]
[12] AD2 p 44.
The claimant has a longstanding history of chronic headaches. On 23 February 2010 Dr Dantoc referred to constant headaches for almost one year[13] and on 6 April 2010 Dr Kodsy referred to migraines nearly daily.[14] It was reported the claimant underwent a CT scan of the brain the previous year, although no abnormality was disclosed. On 29 August 2013 Dr Li reported the claimant experienced migraines once a week and headaches two to three times a week. She also reported several years of sore joints, knees and ankles and feet.[15] On 13 December 2016 Dr Kuo, endocrinologist reported Ms Petersen had a background history of chronic headache.[16]
[13] AD2 p 394.
[14] AD2 p 395.
[15] AD2 p 99.
[16] AD2 p 174.
A clinical entry of 16 December 2013 refers to sore joints, knees, ankles and sometimes elbow and refers to a family history of auto-immune arthritis.
On 14 January 2016 Ms Petersen had an X-ray of her cervical and thoracolumbar spine reportedly based on a clinical history of pain for six months.
On 11 January 2017 Ms Petersen had a CT of the cervical spine on referral by Dr Kodsy for pain persistent for years and tenderness. Dr Kodsy queried facet joint arthropathy.
In the Medical Certificate accompanying the claim form dated 9 October 2017 Dr Castro diagnosed whiplash.
On 11 April 2018 the claimant was referred to Dr M Dowla in respect of ongoing intermittent neck pain with radiculopathy since the accident.[17]
[17] AD2 p 216.
On 27 August 2018 the claimant was referred to Ashish Malkan [18] with the following history:
” Thank you for seeing Miss Alicia Petersen, age 24 yrs for an opinion and management. Miss Petersen had an MVA in August last year. She had a CT Cervical Spine which was unremarkable and her neck pain at the time was thought to be secondary to whiplash.
Since the MVA however, Alicia has had ongoing intermittent neck pain with radiculopathy. She describes altered sensation/numbness in the right arm which corresponds to dermatomes C8/T1 on examination.
I have referred Miss Petersen for an MRI C Spine which has shown disc osteophyte complexes at C5/6 and C6/7 without significant neural foraminal stenoses”.
[18] AD2 p 220.
Records of Mamre Road Medical Centre
On 29 November 2018 Dr Tun Aung Kyaw reported:
“MVA today. other car hit driver side
Now L arm feel weak and heavy”.[19]
[19] AD2 p 495.
On 30 November 2018 Dr David Li reported the following findings on examination:
“tender over right upper arm no tender over right shoulder
good rom of movement of neck and arm
no cervical tenderness
good rom of movement of neck
upper limb tone nad power seems ok in view of pain slight tenderness over right paracervical neck”.[20]
[20] Ad2 P 496.
On 30 June 2019 Ms Petersen was reviewed by Dr David Li. He reported a history of “neck and goes to back of head” and reported she was under a LMO (Local Medical Officer) in Erskine Park. He noted a good range of movement of the neck, no tenderness and no abnormality of tone or power in the upper limbs.[21]
[21] AD2 p 599.
Dr Afrujul Alam provided a report dated 6 December 2019. He saw Ms Petersen on 6 August 2017 following the accident the previous day. He reported no obvious injury to her head, neck or lower back and noted her neurological and musculo-skeletal examination of both upper and lower limbs were within normal limits. Dr Alam diagnosed soft tissue injury/pain at the neck and lower back.[22]
[22] AD2 P 519.
Ms Petersen attended physiotherapist Maria Quispe on five occasions in March 2021. On the Client Details form the body part requiring treatment is described as neck, right arm and shoulder and upper back.[23]
[23] AD2 p 864.
In an Allied health recovery request seeking approval for physiotherapy treatment dated 10 June 2021 Dr Castro diagnosed nerve root compression at C7 and T1 level and right shoulder sub-acromial impingement.[24] She reported neck, shoulder and mid upper back pain since the accident, reportedly getting worse since the end of 2020.
Investigations
X-ray of the cervical spine and lumbar spine 7 August 2017
[24] AD 2, p 633.
Dr Simmons provided the following report of the X-ray of the cervical spine:
“Cervical disc spaces well preserved. Minor curvature convex to the right. No cervical ribs were seen. Exit foramina are well preserved”.
Dr Simmons provided the following report of the x-ray of the lumbar spine:
“Minor curvature. Lumbar disc spaces were well preserved. Pedicles appeared to be intact. No pars interarticularis defects were seen The SI joints appeared normal”.
CT of the cervical spine 14 October 2017
On 14 October 2017 Dr Kapoor reported: “No fracture identified. No neural foraminal compromise seen”.
MRI of the cervical spine 15 June 2018
Following an MRI of the cervical spine of 15 June 2018 Dr Ho reported:
“Disc osteophyte complexes at C5/6 and C6/7 without significant neural foraminal stenosis”.[25]
[25] AD2 p 41.
MRI of the brain 12 July 2018
Having regard to her ongoing headaches Ms Petersen underwent an MRI scan of the brain. In a report dated 12 July 2018 Dr Ho reported: “No definitive cause for the patient’s symptoms identified”.
MRI of the right shoulder 6 August 2020
Dr Iyer reported as follows:
“Some minor and questionable fluid in the subacromial bursa ?? very mild bursitis. There is slight excess of glenohumeral joint fluid of doubtful clinical relevance. Intact tendons and labrum. No significant tendinitis. No significant abnormality detected on MR imaging”.[26]
[26] AD2 p 42.
MRI of the lumbar spine 6 August 20
Dr Iyer reported as follows:
“Disc dehydration at L5/S1 with a very shallow non neurocompressive posterocentral disc protrusion at this level. Some minor posterior annular high signal is also seen in this region. No evidence of neurocompressive disease. Normal appearances elsewhere”.[27]
Medico-legal reports
[27] AD 2 p 42.
Report of Dr Peter Conrad 22 October 2019
Ms Petersen was assessed by Dr Conrad, general surgeon on 22 October 2019.[28] He noted other than consulting a GP at various times Ms Petersen had not been referred to any specialists, physiotherapists or other treatment provider.
[28] AD2 p 614.
Dr Conrad reported ongoing headaches, pain and stiffness in the cervical spine radiating to the right shoulder and down the right arm. He also reported ongoing back pain.
Dr Conrad diagnosed a whiplash injury of the neck associated with MRI evidence of discal damage at two levels. He also noted chronic symptoms of pain and restriction of movement of the right shoulder and an injury to the lumbar spine.
Dr Conrad assessed a 5% WPI of the neck, a 5% WPI of the back and a 4% WPI of the right shoulder giving a combined WPI of 14%.
Report of Dr Richard Powell, 18 February 2020
Ms Petersen saw Dr Powell at the request of the insurer on 14 February 2020.[29] He reported the following current symptoms:
“Ms Petersen reports ongoing symptoms involving the cervicothoracic region. She reports intermittent pain that typically affects the right side of the neck though also extends to the midline and less commonly across to the left side. Pain can extend down into the upper thoracic and interscapular region. Symptoms occur every few days. Pain is typically dull in character and accompanied by muscle tightness. She is aware of stiffness and restriction in range of motion particularly into extension. She describes headache. She is aware of intermittent pins and needles involving the extensor aspect of the right forearm and hand”.
[29] R1 p 34.
On examination Dr Powell noted mild tenderness to palpation of the cervical spine and that range of motion was mildly and symmetrically restricted. He also found mild restriction of motion of the right shoulder, normal thoracic rotation and scapulothoracic rhythm.
Dr Powell concluded Ms Petersen sustained a musculoligamentous injury of the cervical spine and assessed a 5% WPI. He also concluded the restriction in range of motion of the right shoulder was secondary to the cervical spine condition and there was no intrinsic injury to the right shoulder due to the accident.
Report of Dr Evan Dryson, 10 September 2020[30]
[30] AD2, p 28.
Ms Petersen saw Dr Dryson, occupational physician at the request of her lawyer on 2 September 2020. He reported the claimant’s neck was uncomfortable and painful and radiated into her right shoulder, but not into the left. The pain also radiated up into the head and Ms Petersen complained of frequent headaches. She also reported pain down the right arm as far as the hand with occasional pins and needs in the medial forearm and occasional pins and needles in the fingers. Neck pain also radiated to the upper back.
On examination Dr Dryson found restricted range of movement of the neck. Rotation to the right was restricted to two-thirds of the normal range and to the left to half the normal range. Lateral flexion to the right was one-third of the normal range and to the left it was one-third of the normal range. Extension was two-thirds of the normal range whilst flexion was near normal.
Dr Dryson found the following range of movement of the shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
130°
Extension
40°
50°
Adduction
50°
50°
Abduction
80°
150°
Internal Rotation
60°
90°
External Rotation
70°
90°
Dr Dryson reported a normal range of movement in the thoracic spine in both directions.
Dr Dryson provided the following diagnosis:
· whiplash-associated disorder/aggravation of pre-existing cervical spondylosis, and
· painful restricted range of movement of both shoulders, right worse than left - ? referred from neck.
Dr Dryson assessed an 8% WPI arising out of injury to the right shoulder and 2% WPI arising out of injury to the left shoulder. He found Ms Petersen met the criteria for DRE Cervicothoracic Spine Impairment Category II in that there were signs and symptoms of injury but no radiculopathy equating to a 5% WPI for the cervical spine. He found a 0% WPI for the thoracic spine on the basis the claimant had symptoms but no evidence of injury.
Dr Dryson was asked to clarify his opinion as to causation of the shoulder pain. In a supplementary report dated 11 December 2020 he stated he was of the opinion the impairment of the right shoulder was due to referred pain from the neck.[31] In the relation to the left shoulder Dr Dryson stated:
‘I do note that Ms Petersen reported no referred pain from the neck to the left shoulder. The reason for this is likely to be that pain is only experienced on extremes of movement above shoulder height and these movements are not usually undertaken during normal daily activities and are therefore not noticed. The reduced range of movement in the left shoulder is clearly abnormal in an otherwise fit 27-year-old and I do consider that it represents injury’.
SUBMISSIONS
[31] AD2 p 36
Claimant’s submissions
The claimant provided submissions dated 22 October 2021 in support of the medical review application.[32] Whilst those submissions are largely directed to the assessment required to be undertaken by the President’s delegate the claimant emphasised that Dr Dryson found a painful restricted range of movement of both shoulders and assessed a 2% WPI in relation to injury to the left shoulder.
[32] R1 p 1.
Insurer’s submissions
The insurer provided submissions in reply to the application for referral to a medical review panel dated 25 November 2021. Whilst these submissions are directed to the assessment required to be undertaken by the President’s delegate the insurer submits any injury to the left shoulder is not causally related to the accident and has not resulted in any permanent impairment.
The insurer agrees the statement by Medical Assessor Kumar that neither Dr Dryson nor Dr Powell considered there to be any impairment of the left shoulder is factually incorrect, as Dr Dryson referred to a 2% WPI with respect to the left shoulder in his report dated 10 September 2020. The insurer also conceded the comment by Assessor Kumar that neither Dr Dryson nor Dr Powell related any left shoulder injury to the accident was incorrect where Dr Dryson noted “painful restricted range of movement in both shoulders”.
The insurer otherwise submits the findings of Medical Assessor Kumar were not only based on a thorough examination of the claimant but are also consistent with the findings of Dr Powell who found no symptoms with the respect to the left upper limb, no injury to the left shoulder causally related to the accident and no permanent impairment.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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”.
In Norrington v QBE Insurance (Australia) Ltd Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
THE MEDICAL EXAMINATION
Background
Ms Petersen is a 28-year-old right hand dominant woman who denied any previous musculoskeletal accidents, injuries, or complaints. On 29 August 2013, Dr Maria Li documented ‘several years of sore joints - knees and ankles and feet has been getting sore joints most days for several years’. She informed me she has a family history of seronegative arthropathy, but she could not recall any previous musculoskeletal symptoms.
She was involved in the accident on Sunday 5 August 2017, the day before she was scheduled to begin a full-time customer service position with Brio. Her employment was delayed by one to two weeks because of the injuries she sustained. She was able to continue working for the remainder of the year. She is currently employed by Dr Bak, rheumatologist as a receptionist averaging 40 hours per fortnight.
History of motor vehicle accident
Ms Petersen states that on 5 August 2017, she was driving a 2014 model Suzuki Swift hatch back vehicle through a roundabout at an intersection between Werrington Road and The Kingsway when a vehicle on her right failed to give way and collided with the passenger side of her vehicle. She was wearing a seat belt restraint. The air bag facility was not deployed. On impact, her right shoulder struck the side pillar of the vehicle. The window on the passenger side of the vehicle shattered causing glass to be embedded all over her body. Her partner drove the vehicle home, but it was later written off for insurance purposes.
She complained of immediate pain in her neck and shoulders, pointing at the upper trapezii. The following day, she consulted Dr Alam who completed a medical certificate noting a whiplash injury.
Ms Petersen completed a Personal Injury Claim Form documenting injuries to her neck, right shoulder, arm, and upper back. Dr Assem brought to her attention the lack of contemporaneous evidence of a left shoulder injury. In response Ms Petersen said she experienced pain over her upper trapezius and interscapular area. In response to an enquiry about the cause of the left shoulder complaints, Ms Petersen said she believed it was from holding onto the steering wheel. Ms Petersen was also asked about the variable range of shoulder motion documented by different medical examiners noting Dr Conrad, Dr Minogue and Medical Assessor Kumar reported a normal range of left shoulder motion whereas Dr Dryson documented a slight restriction in left shoulder motion. Ms Petersen stated her symptoms varied daily, typically worse on her right shoulder, but sometimes affecting both shoulders and occasionally only her left shoulder.
Ms Petersen manages her symptoms with ice packs, heat packs, Endone once a week, Panadol, Nurofen or Voltaren. Physiotherapy was not commenced until 2020. She currently experiences constant neck discomfort that she rated as 6/10 and pain in the upper trapezii and interscapular area that she rated as 5/10.
Examination
Ms Petersen appeared well and in no apparent physical distress. She ambulated with a normal gait. She sat comfortably throughout the interview. Her height was reported to be 164 cm and weight 64 kgs.
Cervical spine
There was tenderness on palpating the spinous process of the cervical vertebra and upper trapezii bilaterally. There was no muscle guarding or spasm. Cervical movements were symmetrically reduced in flexion and extension to ¼ of normal range. Lateral flexion and rotation were symmetrically reduced to ½ normal range. There was no asymmetry of movement or spinal dysmetria. Neurological examination of her upper limbs was normal in muscle power, tone and reflexes. There was global sensory loss involving her right hand that did not correspond with a specific dermatomal pattern. Neural tension signs were negative.
Upper extremities
Ms Petersen indicated that all shoulder movements were limited due to pain in the upper trapezii and interscapular area. There was no winging of the scapula and no abnormal scapulohumeral rhythm. Active range of motion was relatively consistent on repeated testing but markedly different from what was documented by other medical examiners as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°, 80°, 110°, 90°
110°, 90°, 110°
Extension
20° to 40°
20° to 40°
Adduction
20° to 30°
20° to 30°
Abduction
80° to 90°
80° to 90°
Internal Rotation
80°
80°
External Rotation
60°
60°
Thoracic spine (thoracolumbar)
Ms Petersen demonstrated a symmetrical restriction in thoracolumbar movements to ¾ of normal range. There was tenderness on palpation but no muscle guarding or spasm. Neurological examination of her lower extremities was normal with normal power, tone, sensation and reflexes.
Consistency of presentation
Ms Petersen’s shoulder movements were markedly inconsistent with the range observed by other medical examiners. The inconsistencies were brought to her attention and her response noted.
Permanent impairment
Cervical spine
Ms Petersen has a restriction in cervical movements without any muscle guarding, spasm or spinal dysmetria. Her condition is consistent with a DRE Cervicothoracic Category I or 0% WPI in accordance with page 3/103 of the AMA 4 Guides.
Thoracic spine
There was tenderness on palpation but no muscle guarding, spasm, asymmetry of motion or spinal dysmetria. Her condition is consistent with a DRE Thoracolumbar Category I or 0% in accordance with page 3/106 of the AMA 4 Guides.
Upper extremities
Although Ms Petersen has a history of a direct injury to her right shoulder at the time of the motor vehicle accident, her shoulder movements were restricted due to pain arising from the cervical spine, upper trapezii and interscapular region rather than her shoulder joints[33]. As her shoulder movements were highly inconsistent with the range observed by other medical examiners, range of motion was not a reliable and valid method of objectively determining the level impairment in accordance with clauses 1.40 and 1.50 of the Guidelines.
[33] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
From a clinical perspective, the Panel accepted that a minor secondary restriction in shoulder motion could be plausible given the injury Ms Petersen sustained to the cervical spine[34] but not to the extent demonstrated at the assessment. The Panel therefore modified the impairment rating to what would be expected in a person with a soft tissue injury causing impingement with a secondary restriction in shoulder flexion and abduction to 150 degrees giving 2% Upper Extremity Impairment in accordance with Figure 38 on page 3/43, Figure 41 on page 3/44 and Figure 44 on page 3/45 of the AMA 4 Guides or 2% WPI in accordance with Table 4 on page 3/20 of the AMA 4 Guides.
[34] Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584.
There would be a similar restriction in left shoulder motion giving 2% WPI.
Alternatively, she could be assessed by way of analogy under clause 1.24 of page 9 of the Guidelines. An analogous condition would be mild crepitations of the right AC joint giving 10% joint impairment under Table 19 on page 59 of the AMA 4 Guides. In accordance with Table 18 on page 58 of the AMA 4 Guides 10% of 15% equates to 1.5% WPI which is rounded to 2% WPI.
Permanent Impairment Table
Body Part or System
AMA Guides/Guideline References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1
Cervical spine
Table 73, page 3/110 AMA 4 Guides
Yes
0%
0
0%
2
Thoracic spine
Table 74, page 3/111 AMA 4 Guides
Yes
0%
0
0%
3
Right shoulder
Figure 38 page 3/43, Figure 41, page 3/44, Figure 44 page 3/45 AMA 4 Guides
Yes
2%
0
2%
4
Left shoulder
Figure 38 page 3/43, Figure 41, page 3/44; Figure 44 page 3/45 AMA 4 Guides
Yes
2%
0
2%
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
Nil
Apportionment
Nil
Effects of treatment
The Panel makes no adjustment for the effects of treatment.
PANEL DECISION
The Panel has found that the accident was a cause of the following injuries which give rise to a permanent impairment which is not greater than 10%.
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· injury to the right shoulder referred from the cervical spine, and
· injury to the left shoulder referred from the cervical spine.
Member Susan McTegg
On behalf of the Panel
Motor Accidents Division
Personal Injury Commission
0
2
1