Pietryga v Allianz Australia Insurance Limited

[2024] NSWPICMP 259

DETERMINATION OF REVIEW PANEL

CITATION:

Pietryga v Allianz Australia Insurance Limited [2024] NSWPICMP 259

CLAIMANT:

Matthew Pietryga

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Alan Home

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

26 April 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Woo; the claimant suffered in a motor vehicle accident on 15 May 2019; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine and both shoulders; MA Woo certified cervical spine and lumbar spine injuries had previously been assessed as threshold injuries and therefore no assessment of permanent impairment was required; MA Woo concluded restricted range of motion of both shoulders could not be explained by any identified cause and found no assessable impairment; Held – severe T bone crash; imaging unhelpful; well established and chronic pain syndrome and appears very disabled; soft tissue injury to cervical spine and lumbar spine caused by accident; soft tissue injury to each shoulder secondary to cervical spine injury; presence of dysmetria in cervical and lumbar spine; cervical spine DRE II giving 5% WPI; lumbar spine DRI II giving 5% WPI; shoulder assessed by analogy at 2% WPI for each shoulder; certificate of MA Woo revoked and certified injures caused by accident gave rise to  greater than 10% WPI.  

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%

Amended Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the Certificate of Medical Assessor Alexander Woo dated 24 July 2023 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) greater than 10 % and which is 14%:

·     cervical spine – soft tissue injury;

·     lumbar spine – soft tissue injury;

·     left shoulder – soft tissue injury secondary to cervical spine injury; and 

·     right shoulder – soft tissue injury secondary to cervical spine injury.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

1. On 15 May 2019 Mr Matthew Pietryga (the claimant) was driving a 1993 Toyota Landcruiser when the insured vehicle failed to stop at a stop sign and collided with the claimant’s vehicle (the accident).

2. Mr Pietryga was 32 years of age at the date of accident and is now 37 years of age.

3. Mr Pietryga has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

4. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Pietryga under the MAI Act.

5. 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%.

6. On 14 June 2022 the insurer determined the claimant had not sustained a permanent impairment caused by the accident greater than 10%. On 11 July 2022 the claimant sought a review of that decision.  In a Certificate of Determination – Internal Review dated 2 August 2022 the insurer affirmed that decision.[1]

   [1] Claimant’s bundle p 448

7. The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained by Mr Pietryga 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.

8. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[2].

   [2] Section 7.20 of the MAI Act.

9. The dispute as to permanent impairment was referred to Medical Assessor Alexander Woo who issued a certificate dated 24 July 2023. It is that certificate which is the subject of this review.

10. The Review Panel (the Panel) issued a Direction to the parties on 5 October 2023 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 documents labelled Index for Alexander Woo Review paginated from pages 1 to 477 (hereafter described as Claimant’s bundle). The solicitor for the insurer uploaded to the portal documents labelled Insurer’s Bundle of Evidence and paginated from pages 1 to 663 (hereafter described as Insurer’s bundle).

11. INCOMPLETE CERTICATE

12. On 14 March 2024 the Panel became aware that an Application to Admit Late Documents dated 7 February 2024 (AALD) uploaded to the portal by the insurer had not been made available to the Panel with the result that the Certificate issued by the Panel on 4 March 2024 was an incomplete Certificate.

13. On 15 March 2024 the following message was made visible to the parties on the portal:

    2.“The Panel refers to the message from the insurer received on 12 March 2024 in respect of the insurer’s Application to Admit Late Documents dated 7 February 2024.

    3.

    4.Unfortunately, due to administrative oversight that Application was not made available to the Panel and a Certificate issued without the Panel considering whether the late documents were admissible.  The Application was not referred to a Delegate and in fact, the procedure is that the Application should have been referred to the Panel.

    5.

    6.The Panel notes that clause 67 of Procedural Direction PIC 6 refers to rule 112 of the Personal Injury Commission Rules 2021 (PIC Rules) which provides for a matter to be referred back to a medical review panel to correct an incomplete certificate. Rule 112 defines an incomplete certificate as one that fails to comply with s 7.23 of the MAI Act.

    7.Clause 71 of Procedural Direction PIC 6 provides examples of incomplete certificates including “submitted documentation is not referred to”.  In this case the Panel failed to refer to the Application to Admit Late Documents dated 7 February 2024.

    8.

    9.The Panel proposes to correct the incomplete certificate.  The Panel proposes to provide the claimant with a further opportunity to respond to the Application to Admit Late Documents dated 7 February 2024 and will thereafter issue a new Certificate and Reasons for Decision.

    10.

    11.The Panel issues the following directions:

    1.On or before 22 March 2024 the claimant is to advise if there is any objection and if so, the basis of the objection, to the insurer’s reliance on the Application to Admit Late Documents dated 7 February 2024.

    2.On or before 12 April 2024 the Panel will make a decision on the admissibility of the Application to Admit Late Documents and issue a new Certificate and Reasons.”

14. No response has been received from the claimant.  The Panel assumes the claimant does not oppose the insurer’s reliance upon the AALD.  The documents attached to the AALD were a medical chronology and a report of Dr Andrew McIntosh, biomechanical engineer dated 30 October 2023.

15. The admission of late documents in the Commission is governed by Procedural Direction PIC3 which states in determining an application for leave to admit late documents the following matters will be considered:

    (a)the interests of justice;

    (c)the submission of the parties including the adequacy of the moving party’s reason for the delay in lodging the documents,

    (d)any prejudice that would result from granting or refusing leave to admit the documents;

    (e)the effect, if any on the timely resolution of the dispute; and

    (f)the objects of the Commission under sections 3 and 42 of the Personal Injury Commission Act, 2020 (PIC Act).

16. The Panel proposes to admit the medical chronology as an aide memoire.

17. The Panel notes the insurer has not provided any reasons for the delay in lodging the documents.  The report of Dr McIntosh is dated 30 October 2023 and whilst it may not have been available for inclusion in the insurer’s bundle which was uploaded on 3 November 2023 in accordance with the direction of the Panel, there is no explanation as to why no attempt was made to rely upon the report until 7 February 2024, only five days before the scheduled medical examination on 12 February 2024. 

18. The insurer submits the report should be admitted in the interests of justice having regard to Dr McIntosh’s findings as to causation of the claimant’s alleged head injury and the likelihood of his injuries given the forces involved in the accident. The insurer also submits admission of the report would be consistent with the objects of the PIC Act where it would reduce the likelihood of an application for further assessment being brought.

19. The principles governing the admissibility of expert evidence are well set out in Dasreef Pty Ltd v Hawchar[3] and in Makita (Australia) Pty Ltd v Sprowles.[4]  Evidence relied upon by Dr McIntosh in reaching his conclusion such as the Procare CTP Factual Investigation is not before the Panel making it difficult for the panel to determine whether the facts upon which the opinion of Dr McIntosh is based have been established.

    [3] Dasreef Pty Ltd v Hawchar [2011] HCA 21

    [4] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

20. However, the Panel is undertaking a medical review and whilst the Panel does not have sufficient evidence to assess the validity of Dr McIntosh’s conclusions the Panel proposes to admit the report in the interests of justice and taking into consideration the objects of the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.

21. OTHER MEDICAL ASSESSMENT CERTIFICATES

22. Certificate of Medical Assessor Berry

23. Medical Assessor Neil Berry reported after the accident Mr Pietryga suffered pain in the left side of the neck, in the mid back and in the low back.

24. On examination of the cervical spine Medical Assessor Berry reported Mr Pietryga was diffusely tender in the paraspinal muscles on the left and all movements were reduced to approximately one third of the normal range. 

25. On examination of the thoracic spine Medical Assessor Berry reported tenderness, no evidence of any sensory changes in the thoracic nerve distributions and pain on twisting movements of the thoracic spine reduced movement to less than a third of the normal range.

26. Medical Assessor Berry reported tenderness of the lower lumbar spine, no paraspinal muscle spasm and reported movement in all directions was reduced to approximately half the normal range of movement.

27. In relation to the upper extremities Medical Assessor Berry noted Mr Pietryga could not lift either arm above 90º in forward flexion. Abduction on both sides was to 130º although adduction, extension, and rotation were within normal range. He found no sensory disturbance and no unilateral muscle wasting.

28. In relation to the lower extremities knee and ankle reflexes were brisk and equal. The claimant could extend both legs to 90º of the normal hip range. There was no wasting in either leg, no sensory loss and no evidence of a nerve root tension sign.

29. In relation to consistency Medical Assessor Berry stated when he indicated to Mr Pietryga that his range of movement in all areas including the spine and limbs was markedly reduced Mr Pietryga stated he was in a great deal of pain. 

30. Medical Assessor Neil Berry issued a certificate dated 10 March 2020 in which he certified the following injuries caused by the accident were minor (threshold) injuries for the purposes of the MAI Act:

    ·cervical spine – soft tissue injury;

    ·thoracic spine – soft tissue injury; and

    ·lumbar spine – soft tissue injury.[5]

    [5] Insurer’s bundle p 66

31. Certificate of Medical Assessor Woo

32. Medical Assessor Woo was asked to assess a treatment dispute and issued a certificate dated 31 August 2020 in which he certified the following treatment or care will not improve the recovery of the injured person:

    ·the medial branch blockades to the T7/T8, T8/T9 and T9/10 levels and costovertebral joint blockade to localise the pain generators requested by Dr David Manohar.[6]

    [6] Insurer’s bundle p 73

33. In relation to the claimant’s presentation Medical Assessor Woo reported:

    “Mr Pietryga showed great difficulty in walking into the consulting room. He demonstrated muscle spasm and guarding of his body, arms and leg with an obvious antalgic gait.

    During the entire interview, he remained standing holding on a chair. He told me that it was too painful for him to sit down and he refused to get on to the examination couch.
    He continuously complained of pain with any movement during the assessment. He did not allow me to touch him for assessment of tenderness, spasm and guarding. Assessment of range of movement of his neck, back, upper and lower limbs could not be conducted.”

34. Medical Assessor Woo reported Mr Pietryga demonstrated obvious extreme pain all over his body in the neck, back, upper and lower limbs. He noted widespread pain in the thoracic and lumbar spine which cannot be identified by clinical examination and by various investigations.

35. Certificate of Medical Assessor Matthew Jones

36. Medical Assessor Jones issued a certificate dated 31 August 2020 in which he certified the following psychiatric injury caused by the accident was a minor (threshold) injury:

    ·Chronic adjustment disorder with depressed mood and mixed anxiety.[7]

    [7] Insurer’s bundle p 81

37. Certificate of Medical Assessor Gerald Chew

38. Medical Assessor Chew issued a certificate dated 20 July 2023 in which he certified the following injury caused by the accident was not a threshold injury:

    ·Major depressive disorder.

39. Medical Assessor Chew also certified the claimant has sustained a permanent impairment of 13% as a result of the major depressive disorder caused by the accident.

40. An application for review of this decision has been referred by the delegate to the President to a review panel but is yet to be finalised.

41. CERTIFICATE UNDER REVIEW

42. Certificate of Medical Assessor Alexander Woo[8]

    [8] Claimant’s bundle p 5

43. Medical Assessor Woo issued a certificate dated 24 July 2023.[9] The following injuries were referred to Medical Assessor Woo for as assessment as to permanent impairment:

    [9] Insurer’s bundle p 8

    ·        cervical spine – radiculopathy and soft tissue injury;

    ·        lumbar spine – radiculopathy and soft tissue injury; and

    ·        shoulder – bilateral soft tissue injury.

44. Medical Assessor Woo reported Mr Pietryga had back and left leg pain following a lower back injury in 2009. He was under the care of Dr Abraszko, neurosurgeon and returned to full capacity.

45. At the time of the accident Mr Pietryga worked as a heavy vehicle mechanic with Interline Bus Services.

46. Medical Assessor Woo reported when he assessed Mr Pietryga on 19 August 2020 he complained of back pain in the thoracic and lumbar spine on the right side radiating down to the knees, chest pain on lying down, neck pain which had subsided although he reported because of the severe pain he was unable to lift his arms and to pick up his daughter.

47. When he assessed Mr Pietryga on 7 July 2023 Medical Assessor Woo reported complaints of constant back pain in the thoracic and lumbar spine radiating down the left leg and to a lesser degree the right leg. He reported constant neck pain, left arm pain and tingling involving the whole hand, right hand tingling in the ring and little fingers and bilateral shoulder pain more pronounced on the right. He also complained of pain in the chest and left ribs.

48. Medical Assessor Woo considered there was inconsistency in his complaints relating to his cervical spine and lumbar spine injuries and he noted Mr Pietryga was uncertain when his shoulder symptoms became severe.

49. Medical Assessor Woo reported Mr Pietryga had been using medicinal cannabis oil for 12 months. He noted an obvious limping gait. Mr Pietryga complained of increased pain after sitting for 30 minutes and demonstrated difficulty getting on and off the examination couch. He fell to the floor when asked to stand on his heels and complained of excruciating pain near the end of the assessment.

50. On examination of the cervical spine Medical Assessor Woo reported range of movement was nil, dysmetria could not be assessed due to total stiffness and Mr Pietryga had non-verifiable complaints, namely tingling in both hands. He reported reflexes were normal, and deranged sensation of the left upper limb was not localised to any spinal nerve root distribution. Assessor Woo could not assess motor power due to severe pain.  He noted upper arm circumference was equal on both sides although the right forearm was 1 cm bigger than the left.

51. There was tenderness and guarding in the thoracic spine, movement was nil, and the neurological examination was normal. He reported tenderness over the left chest/rib cage.

52. Medical Assessor Woo reported tenderness and guarding in the lumbar spine with nil range of movement due to pain. Straight leg raising was 30º on both sides with pain in the back. He was not able to assess sciatic nerve root tension signs or dysmetria due to severe pain with any movement. He noted pain and tingling in both legs. Reflexes were normal and symmetrical, and the reported deranged sensation of the left lower limb was not localised to any spinal nerve root distribution. Motor power could not be assessed.

53. Medical Assessor Woo noted tenderness in both shoulders and measured active range of movement (ROM) as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	100°
Extension	30°	30°
Adduction	30°	30°
Abduction	110°	100°
Internal Rotation	60°	30°
External Rotation	80°	70°

1. Medical Assessor Woo reported Mr Pietryga demonstrated extreme pain behaviour which he could not explain based on his clinical findings and the medical imaging.

2. Medical Assessor Woo certified that the following injuries were caused by the accident:

   ·cervical spine – soft tissue injury, no evidence of radiculopathy;

   ·lumbar spine – soft tissue injury, no evidence of radiculopathy;

   ·left shoulder – soft tissue injury secondary to cervical spine injury; and 

   ·right shoulder – soft tissue injury secondary to cervical spine injury.

3. Medical Assessor Woo noted the cervical spine and lumbar spine injuries were certified as “minor (threshold) injury by Medical Assessor Berry in his certificate dated 10 March 2020 and considered pursuant to the Guidelines no assessment of permanent impairment was required for those injuries.

4. Medical Assessor Woo concluded the restriction of range of motion in both shoulders could not be explained by any identified cause and found there was no assessable impairment.

REVIEW PROCEDURE

1. On 14 August 2023 Mr Pietryga sought a review of the medical assessment of Medical Assessor Woo.

2. On 19 September 2023 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 Panel.

3. Rules 127 to 130 of the PIC Rules are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[10] The review is by way of a new assessment of all matters with which the medical assessment is concerned.

   [10] Rule 128 of the PIC Rules.

4. On 4 December 2023 the Panel agreed an examination was necessary.

5. EVIDENCE BEFORE THE REVIEW PANEL

1. Application for personal injury benefits (the application)

2. In the application dated 31 May 2019 the injuries were described as follows:

   21.“Whiplash, swelling and bruising to my neck and back. T-spine injury, aggravated and old injury, sore ribs and can’t sleep from pain.”[11]

   [11] Claimant’s bundle p 24

3. Statement of Matthew Pietryga

4. In a statement dated 21 April 2022 Mr Pietryga reported the force of the collision caused his body to propel forward and his head hit the windscreen, causing the glass to crack.[12] He states the impact threw him into the window and back into the seat. He said the steering wheel was bent, the impact lifted the ute’s back wheels off the ground and the other vehicle was propelled 100 metres into a nearby paddock.

   [12] Claimant’s bundle p 35

5. Treating medical evidence

6. Narellan Medical & Dental Centre, clinical notes

7. On 18 January 2016 Dr Wassef reported “2/7 of r pectoral muscles with movement and breathing. Pt work is very physical”. He diagnosed costochondral joint pain.[13] On 20 January 2016 he reported improvement but noted continued pain and tenderness at the sternocostal junction.

   [13] Insurer’s bundle p 581

8. On 2 February 2019 Dr Perwaiz referred Mr Pietryga for an X-ray of the lumbosacral spine and an ultrasound of the renal area recording:

   25.“ch back pains

   26.Renal area pains for 5 months

   27.Exam

   28.Tender both renal areas.”[14]

   [14] Insurer’s bundle p 580

9. On 5 February 2019 Dr Aung reported Mr Pietryga was seeing a chiropractor for back pain and reported “mild osteoarthritis changes with muscle spasm, no LL neurological impairment or bladder or bwoel prblem [sic]”.  Dr Aung prescribed Norgesic and Norofen Plus.

10. Dr Mitchell Foord, chiropractor

11. Mr Pietryga consulted Dr Food on 4 November 2016 complaining of lower back pain after slipping down stairs with referral of pain to the posterior leg to the knee. Dr Food provided adjustments to the thoracic and lumbar spine.[15]

    [15] Insurer’s bundle p 272

12. Mr Pietryga underwent treatment with Dr Foord on 14 November 2016, 5 January 2017, and 7 January 2017 when he reported improvement in the lower back pain.

13. Austral Doctors Surgery including Dr Cywinski and Dr Lipinski, clinical notes.

14. An entry on 28 March 2019 reads:

    31.“States back pain aggravated yesterday when jumped off UTE. No urinary/bowel issues – for Panadeine Forte”.[16]

    [16] Insurer’s bundle p 603

15. The next entry on 17 May 2019 references the accident.

16. Dr Cywinski issued a Certificate of capacity/certificate of fitness dated 30 May 2019 in which he certified the claimant unfit for work with a diagnosis of ‘whiplash neck and T spine’. [17]

    [17] Claimant’s bundle p 88

17. Campbelltown Hospital

18. The discharge summary dated 15 May 2019 reported Mr Pietryga had been driving a jeep at 80 km/hr when another vehicle swerved, and he had to stop suddenly. [18]He reportedly hit the wind shield with his head, although there was nil bleeding from the scalp and nil lumps or bumps. There was nil loss of consciousness, nil blurring of vision, he felt lightheaded at first, nil vomiting, nil pain in the neck, pain on the left side of the neck, nil tingling sensation in the arms or legs. There was nil midline tenderness over the neck but he was tender over the left lateral side of the neck.  Also noted:

    [18] Insurer’s bundle p 412

    34.“Upper limbs – nil bony tenderness – over the bones

    35.Elbow extension and flexion restricted due to pain

    36.Nil other movements problems at the wrist/shoulder

    37.Reflex – nl

    38.Sensation – nl

    39.Cordination – nl

    40.Lower limbs – Power/tone/reflexes/sensation – nl

    41.XCordination – nl

    42.BP 145/83

    43.PR 80 DR

    44.No seat belt sign on the chest

    45.Posterior chest – Tender in the midline – T3-T7 area …

    46.?Fracture in the thoracic spines

    47.Plan

    48.Chest x ray”.

19. Eagle Vale Medical Centre – clinical notes

20. On 10 October 2019 Dr Bill Tran, general practitioner (GP) reported the claimant’s involvement in the accident on 15 May 2019 when he noted limited lumbar flexion, due to thoracic pain, limited twisting bilaterally and pain in the thoracic spine when rotating the scapula.[19]

    [19] Claimant’s bundle p 118

21. Mr Pietryga underwent a CT guided perineural injection into the right T7/T8 neural exit foramen on 18 October 2019.[20]

    [20] Claimant’s bundle p 120

22. Mr Pietryga first saw Dr Qian Wang, GP on 12 October 2019 when he reported the accident caused a T7-T8 disc bulge and noted a history of bilateral active sacro-ilitis.[21]

    [21] Insurer’s bundle p 261

23. On 25 October 2019 Dr Wang reported worsening pain following the corticosteroid injection. Dr Wang noted he was attending hydrotherapy, and recommended chiropractic review, chronic pain specialist review and psychologist review.

24. On 7 February 2020 Dr Wang recorded an improvement in the lower back pain but ongoing upper/mid back pain. 

25. On 21 April 2020 Dr Wang recorded inter alia:

    50.“When moving can have a sudden stabbing pain, like the tip of a knife in the mid thoracic area. Trying to roll causes the pain to radiate across the back.

    51.Moving the back can cause pain to go up and down

    52.Afterwards having the lingering ache

    53.Pain certainly does sound like neuropathic pain and Matthew's lawyer has requested letter be amended to include radiculopathy diagnosis but currently without any evidence on imaging / documentation from Dr Abraszko/Dr Manohar, I cannot add that just yet”.[22]

    [22] Insurer’s bundle p 651

26. During a subsequent phone consultation, the same day Dr Wang reported:

    54.“Reviewed MRI images personally

    55.- in all honesty, could not conclusively pinpoint anything

    56.Matthew reported a significant improvement in the pain after starting the lyrica, and at current getting up from the lounge does not trigger any pain at all.

    57.This leads me to believe his pain is more neuropathic, and potentially, spinal cord/nerve root impingement is not ruled out….”

27. Mr Pietryga continued to consult Dr Wang regularly regarding his chronic back pain and psychological symptoms including anger. He reported the claimant’s return to work on a part time basis in an administrative/spare parts role in 2021.

28. On 21 September 2021 Dr Wang reported the pain had improved with CBD (cannabis) oil treatment. On 15 December 2021 Dr Wang reported the claimant had trialled ozone therapy but on 12 January 2022 Dr Wang reported the chronic pain had not improved despite the ozone therapy. On 2 March 2022 Mr Pietryga was given a referral for a medical marijuana clinic for his chronic pain and post-traumatic stress disorder. On 10 November 2022 Dr Ahmed reported Mr Pietryga had separated from his partner of 15 years, he was on Cymbalta and medicinal cannabis.

29. On 31 July 2023 Dr Ng reported chronic back pain, T7/8, he noted Ray Hudd diagnosed depression and post-traumatic stress disorder and prescribed Norgesic and Cymbalta.[23]

    [23] Insurer’s bundle p 627

30. Dr Kelvin Ivins, chiropractor

31. Mr Pietryga underwent an X-ray of the thoracic and lumbosacral spine on referral from Dr Ivins on 5 February 2019.[24]

    [24] Claimant’s bundle p 329

32. On 1 April 2019, six weeks before the accident Mr Pietryga saw Dr Ivins when he recorded Mr Pietryga he reported “para vertebral muscle hypertonicity pain and stiffness, thoracic”. [25]

    [25] Insurer’s bundle p 273

33. Dr Ivins saw Mr Pietryga on 24 May 2019 when he reported “cervical and thoracic pain and stiffness muscle hypertonicity, post traumatic with endone yielding -ve results”.[26] Dr Ivins noted range of motion was limited by pain.

    [26] Insurer’s bundle p 198

34. Mr Pietryga continued to consult Mr Ivins until 16 July 2020 when he continued to complain of thoracic pain and stiffness. In a report dated 24 July 2019 Dr Ivins diagnosed “acute on chronic traumatic thoracic 7/8 disc syndrome with associated intercostal neuralgia para vertebral muscle hypertonicity complicated by bilateral sacroiliitis and deconditioning syndrome”.[27]

    [27] Insurer’s bundle p 492

35. Australis Group - clinical notes

36. The records commence on 2 June 2000 and have no relevant details other than the report of the CT scan of 2 September 2010.

37. Raymond Hudd, psychologist

38. In a report dated 4 August 2020 treating psychologist Mr Hudd diagnosed post-traumatic stress disorder caused by the accident.[28]

    [28] Insurer’s bundle p 169

39. Dr Eric Lim, general practitioner

40. The claimant first saw Dr Lim on 23 June 2021.[29] He reported symptoms as back pain, intermittent pins and needles and numbness, sharp shooting pain radiating down both legs, difficulty sleeping, overthinking, anxious, hypervigilant, weight loss and flashbacks.

    [29] Insurer’s bundle p 170

41. On 17 August 2021 Dr Lim diagnosed cervical spine strain; T7/8 minor disc bulge indenting on the anterior thecal sac, lumbar spine strain and PTSD symptoms.[30] At that time Mr Pietryga was working eight hours per three days in an admin role.

    [30] Insurer’s bundle p 211

42. Dr Renata Abraszko, 20 June 2019

43. On 3 March 2011 Dr Abraszko reported since May 2020 the claimant had back pain radiating to the left leg.[31]  The pain was on and off, but Mr Pietryga had not been able to work due to the pain. On 5 April 2011 Dr Abraszko reported the MRI of the lumbar spine revealed a small L5/S1 disc protrusion. She recommended physiotherapy and exercises.

    [31] Claimant’s bundle p 303

44. On 20 June 2019 Dr Abraszko reported the accident where Mr Pietryga T-boned another driver who pulled in front of him.[32] She noted she had last seen the claimant on 5 April 2011 when an MRI revealed a mild disc bulge at the L5-S1 level. She reported he took pain medications but with time the pain became severe.[33]  He started to have mid-thoracic, lower back pain and severe neck pain.  She reported “pins and needles” and pain referred along the spine. She noted on examination painful movements towards the left side indicating compression of the left C5 or C6 nerve root. She found power and tone were normal and noted although there was no objective weakness Mr Pietryga felt his right was weaker. She noted sensation to pinprick and light touch was normal, upper limb reflexes were normal and she noted brisk reflexes in the lower limbs.

    [32] Claimant’s bundle p 302

    [33] Claimant’s bundle p 302

45. On 12 February 2020 Dr Abraszko reported the MRI of the cervical spine was normal whilst the MRI of the thoracic spine showed T7-T8 disc protrusion but no significant stenosis, and some compression of the spinal cord and minimal disc bulge at the L5-S1 level. She concluded he did not need neurosurgical treatment.[34]

    [34] Claimant’s bundle p 66

46. Dr Abraszko provided a report dated 29 March 2021.[35] She diagnosed a musculoskeletal cervical strain, a T7/T8 disc protrusion and low back pain due to L5/S1 disc protrusion. She reported on examination there were painful movements towards the left side indicating compression of left C5 or C6 nerve root. She noted power and tone were normal and whilst there was no objective weakness Mr Pietryga felt his right hand was weaker. Sensation to pinprick and light touch was normal, upper limb reflexes were normal and there were brisk reflexes in the lower limbs. Dr Abraszko confirmed there was no need for neurosurgical intervention but considered Mr Pietryga may benefit from the insertion of a spinal cord stimulator by a pain specialist.

    [35] Insurer’s bundle p 458

47. Leanne Spur, exercise physiologist

48. In an Allied health recovery request (AHRR) dated 27 August 2019 Ms Spur diagnosed whiplash neck and thoracic spine.[36] She reported Mr Pietryga reported experiencing sharp neural pain in the mid-thoracic spine that can shoot up the back and into the right neck as well as across into the right arm and down into the lower back and legs. She also noted high psychosocial barriers and recommended a comprehensive Cognitive Behavioural Approach.

    [36] Insurer’s bundle p 109

49. Dr Michael Davies, neurosurgeon

50. Dr Davies saw the claimant and provided a report dated 14 November 2019.[37] Dr Davies reported following the accident Mr Pietryga developed pain in his thoracic and lumbar spine. On examination he reported:

    [37] Claimant’s bundle p 172

    66.“He was a little agitated and distressed. He found it difficult to sit for more than short periods and stood for some of the consultation. He found it quite difficult to lie on his back during the examination. There is tenderness from the mid thoracic spine down to the lumbosacral region … Muscle spasm is present. There is marked restriction of back movement in all directions. Straight leg raising is limited by low back pian at about 40 degrees in each leg. Strength testing in the left lower limb is limited by pain but he is able to walk unaided and can rise from sitting without assistance.  Lower limb reflexes are normal. He reported fairly widespread impairment of sharp sensation in the left lower limb.”

51. Dr Davies noted there was no evidence of spinal cord or nerve root injury and concluded the claimant had a mixture of nociceptive and neuropathic pain affecting the thoracic and lumbar region, with referred pain into the lower limbs which he thought was somatic rather than radicular.

52. On 12 December 2019 Dr Davies reviewed Mr Pietryga. He recommended sacroiliac joint injections on the basis the bone scan showed increased uptake in the sacroiliac joints. The claimant was reluctant after an unpleasant experience with a CT guided injection in the thoracic spine.

53. Dr Manohar, pain physician

54. On 30 March 2020 Dr David Manohar reported complaints of cervico-thoracic junction pain, thoracic pain, lumbar pain and pain extending down both legs to the heels.  There was also pain across the front of the chest. He noted the majority of the pain was felt in the mid-back region and all activities aggravated the pain. He recommended medial branch blockades to the T7/T8, T8/T9 and T9/T10 levels and a costovertebral joint blockade to localise the pain generators and a pain management program.[38]  On 25 June 2021 the insurer advised this treatment had not been approved. [39]

    [38] Claimant’s bundle p 69 and 70

    [39] Insurer’s bundle p 530

55. On 6 April 2020 Dr Manohar reported the X-ray of the thoracic spine showed a mild loss of height involving the superior and inferior endplates of the mid to lower thoracic spinal vertebral bodies, the area of pain.[40] On 20 April 2020 Dr Manohar reviewed Mr Pietryga and sought approval for the infiltrations to the medial branches supplying the costovertebral joints following by an RF (radiofrequency) procedure as recommended by Dr Abraszko.[41]

    [40] Insurer’s bundle p 447

    [41] Insurer’s bundle p 448

56. On 16 June 2021 Dr Manohar reviewed the claimant. He reported on examination he pointed to pain around the T7/T8, T8/T9 and T9/T10 levels, noting when he twists the pain shoots to the lumbar region and across his chest.[42]

    [42] Insurer’s bundle p 515

57. Dr Prashanth Rao, neurosurgeon

58. Mr Pietryga consulted Dr Rao on 19 July 2021. He reported a history of “mid thoracic back pain with radiation to both [sic] chest along the T7/8 distribution” which started after the accident.[43] He also noted some sacroiliac joint, lower back issues with left sided tingling.

    [43] Insurer’s bundle p 559

59. Dr Rao noted power, tone, sensation was normal in both lower limbs. He noted paraspinal tenderness around the T8/9 distribution.

60. On 24 August 2021 Dr Rao reported a bone scan revealed uptake in both sacroiliac joints which were severe.  He also noted mild uptake in the thoracic and lumbar spine and in particular the right L5/S1 facet. He recommended injections to the sacroiliac joints and review by a pain specialist for the thoracic spine.[44]

    [44] Insurer’s bundle p 561

61. Dr Michael Edwards, psychiatrist

62. In a report to Dr Wang dated 5 October 2021 Dr Edwards diagnosed chronic pain, mostly neuropathic and a major depressive disorder.[45]

    [45] Claimant’s bundle p 61

63. Imaging

64. X-ray right ribs, 21 January 2016 – the report states:

    71.Clinical history: Costochonodritis, no trauma, sudden sharp pain after getting out of bed 5 days cannot breathe.

    72.Findings: There is no displaced fracture at the ribs of the right lateral thoracic wall. The visualised costovertebral junctions also appear grossly unremarkable.

    73.The lungs are well inspired. No focal consolidation, collapse or pleural effusion. O pneumothorax. Cardiomediastinal contour are within normal limits.

    74.The sternal appearances were unremarkable along with the clavicles bilaterally.

    75.Note is made of slight cortical disruption to the inferior margin of the glenoid bone at the right shoulder level. If there is on-going pain and discomfort, consider CT imaging…”.[46] 

    [46] Insurer’s bundle p 583

65. CT lumbar spine, 2 September 2010 – the report concludes:

    76.“Minor L4/5 and L5/S1 posterior disc bulging without neural compromise”.[47]

    [47] Claimant’s bundle p 323

66. MRI lumbar spine, 12 March 2011 – the report concludes:

    77.“Findings: The conus has a normal appearance and terminates at L1.

    78.All of the lumbar discs are normally hydrated.

    79.The L1/2, L2/3, L3/4 and L4/5 discs are intact with no annular tear or focal protrusion visualised and there is no canal stenosis or neural compression at these levels.

    80.At the L5/S1 level, there is some minor reduction in disc height posteriorly with some very minimal posterior bulging but without canal stenosis or features of neural compression. There is no foraminal narrowing. There is no significant joint disease.”[48]

    [48] Claimant’s bundle p 325

67. MRI sternum, 2 February 2016 – the report concludes:

    81.“Undisplaced transverse fracture of the sternum. The patient has denied a history of direct trauma to the sternum. The appearance may represent a stress fracture if there is a history of repetitive overuse type injury. Clinical correlation is advised.”[49]

    [49] Claimant’s bundle p 161

68. Ultrasound right shoulder, 17 August 2017 – the report reads:

    82.“Findings: The long head of the biceps tendon is normally enlocated with mild fluid in the tendon sheath.

    83.The supraspinatus is thickened and heterogeneous in keeping with tendinopathy without tear. The remainder of the cuff is normal. The bursa is mildly thickened although there is no obvious bunching on dynaemic examination. The region of interest corresponding with the posteromedial aspect of the scapula show no bony or soft tissue abnormality.

    84.Impression:

    1.   Mild supraspinatus tendinosis.

    2.   ? Trace subacromial bursitis although no impingement is seen.”[50]

    [50] Claimant’s bundle p 169

69. X-ray thoracic and lumbosacral spine, 5 February 2019 – the report concludes:

    85.“Clinical history:  ? OA

    86.Thoracic spine: Small osteophytes are seen at the margin of the vertebral endplates in the mid thoracic spine in keeping with early degenerative change. There is preservation of disc height. There is normal alignment. No fracture demonstrated.

    87.Lumbosacral spine: The lumbar vertebral bodies appear normal. There is preservation of disc height. There is mild loss of normal lumbar lordosis possibly due to muscle spasm. The lumbar facet joints appear normal. The visualised sacroiliac joints appear normal. No fracture demonstrated.”[51]

    [51] Insurer’s bundle p 329

70. Renal tract ultrasound, 5 February 2019 – the report concludes:

    88.“Normal renal tract ultrasound”.[52]

    [52] Insurer’s bundle p 590

71. X-ray thoracic spine and X-ray chest, 15 May 2019 – the report reads:

    89.“Clinical history:  MVA – T5 – pain and tenderness: ? thoracic spinal fracture.

    90.The cardiomediastinal contour is within normal limits. The lungs and pleural spaces appear clear. No chest wall abnormality is demonstrated. There is no subdiaphragmatic free gas.

    91.There is normal alignment.

    92.There is mild <20% vertebral body height loss at some levels in the mid thoracic region – correlate for any symptoms to indicate recency and if concerned a CT may be warranted.

    93.There is no disc space narrowing or spondylolisthesis.

    94.The interpedicle distance is maintained.”[53]

    [53] Claimant’s bundle p 343

    95.

1. CT thoracolumbar spine, 21 May 2019 – the report reads:[54]

   [54] Insurer’s bundle p 129

   96.“Thoracic spine: The thoracic spine alignment and vertebral body heights are preserved. There is no fracture or malalignment. The vertebral body heights are preserved. The intervertebral discs show normal appearance with no prolapse. There is no neural compromise at any level.

   97.The facet joints, costovertebral joints are within normal limits.

   98.The thoracic paraspinal soft tissues demonstrate normal appearances. There is no haematoma. Within the limitations of CT, the ligaments are within normal limits.

   99.The visualised lungs are clear. The visualised mediastinal structures are within normal limits.

   100.Lumbar spine: Five typical lumbar vertebral bodies are demonstrated. The lumbar spine alignment and vertebral body heights are preserved. No fracture or segmental malalignment is seen. The facet joints demonstrate normal appearances. There is no disc prolapse. Within the limitations of CT, the ligamentous structures show normal appearances.

   101.Bilaterally, there is sacroiliitis with mixed subchondral sclerotic and erosive changes.

   102.The spinal muscles and visualised portions of the intraabdominal organs are within normal limits.

   103.Conclusion:

   104.No fracture detected within the thoracolumbar spine.

   105.There is no disc prolapse.

   106.Bilateral sacroiliitis which may be seen in a seronegative arthropathy. …”

2. MRI whole spine, 26 June 2019 – the report reads:

   107.“Cervical spine:

   108.The spinal cord and the craniocervical junction are normal. Vertebral alignment is normal. There is no vertebral fracture or bone oedema. There is no disc herniation, canal stenosis or foraminal narrowing. There is no paraspinal abnormality.

   109.Thoracic spine:

   110.Vertebral alignment is normal. There is no vertebral fracture. There is no bone oedema. The spinal cord is normal.

   111.At the T7/T8 level there is a shallow broad based disc bulge. This impresses anteriorly upon the thecal sac and the spinal cord but does not result in significant canal stenosis. There is no internal signal change within the spinal cord.

   112.Lumbar Spine:

   113.The spinal cord terminates normally at the T12/L1 level.

   114.Vertebral alignment is normal. The is no vertebral fracture. There is no bone oedema.

   115.At the L5/S1 level there is minimal degenerative disc disease but there is no disc herniation, canal stenosis or foraminal narrowing.

   116.At the remaining levels there is no disc herniation, can stenosis or foraminal narrowing. There is no paraspinal abnormality.

   117.Conclusion:

   118.Shallow disc bulge at T7/T8. Minor degenerative disc disease at L5/S1. No evidence of neural impingement. [55]

   [55] Claimant’s bundle p 330

3. Whole body bone scan with SPECT CT, 28 June 2019 – the report concludes:

   119.“Conclusion: Active bilateral sacroiliitis.

   120.No scan evidence of a fracture, significant active cervical or lumbar facet arthritis or other significant focal bony abnormality in the spine, pelvis or hips to account for the patient’s symptom.”[56]

   [56] Claimant’s bundle p 361

4. X-ray thoracic spine, 30 March 2020 – the findings were reported as follows:

   121.There is satisfactory alignment of the thoracic spinal column and the thoracic spine maintains its normal curvature.

   122.There is mild loss of height involving the superior and inferior endplates of 2 mid-lower thoracic spinal vertebral bodies. Correlation with a previous radiograph is suggested to assess for interval change. …”[57]

   [57] Insurer’s bundle p 456

   123.

5. MRI whole spine, 5 July 2021 – the report concludes:

   124.“Cervical spine: No significant cervical spine pathology. No convincing features of nerve impingement.

   125.Thoracic spine: Normal study.

   126.Lumbar spine: Very minor dorsal disc bulge at L5/S1 and otherwise unremarkable.”[58]

   [58] Claimant’s bundle p 364

6. Whole body bone scan with SPECT CT, 28 July 2021 - the report concludes:

   127.“There are moderate to severe arthritic changes in the sacroiliac joints bilaterally. There is no focal associated inflammation to specifically suggest that this represents active sacroiliitis. There are minimal arthritic changes elsewhere as described.”[59]

   [59] Insurer’s bundle p 556

7. Medico-legal evidence

8. Dr Jonathon Herald, orthopaedic specialist

9. Dr Herald provided a report dated 8 October 2021.[60] He reported tenderness over the cervical spine with marked stiffness and restricted range of motion. His neurological examination was normal. He also reported tenderness of the lumbar spine and some paravertebral muscle spasm. He reported lateral flexion and forward flexion were both reduced to about 50% of range. He reported a normal neurological examination and a positive straight leg raise to about 30º on both sides.

   [60] Claimant’s bundle p 53

10. Dr Herald reported a greater range of movement that Medical Assessor Woo. He recorded the following:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	50°	50°
Adduction	50°	50°
Abduction	140°	140°
Internal Rotation	80°	80°
External Rotation	80°	80°

1. Dr Herald diagnosed a whiplash injury of the cervical spine with non-verifiable radicular complaints to both upper limbs. He also diagnosed lumbago with non-verifiable radicular complaints to both lower limbs. He concluded the restricted range of motion in both shoulders was secondary to referred pain from the neck.  He diagnosed a chronic pain syndrome with a guarded prognosis.

2. Dr Herald assessed 5% WPI for the cervical spine, 0% WPI for the thoracic spine, 5% WPI for the lumbar spine and a 3% WPI for upper extremity impairment resulting in a combined impairment of 13% WPI[61].

   [61] Claimant’s bundle p 58

3. Dr Richard Powell, orthopaedic surgeon

4. Dr Powell assessed the claimant and provided a report dated 28 June 2022.[62] He reported an episode of lower back pain which occurred in Mr Pietryga’s early 20’s whilst working as a mechanic. He reported no significant pathology was identified when he underwent CT and MRI scan of the lumbar spine in 2010 and 2011, management was conservative including chiropractic treatment and symptoms eventually settled.

   [62] Insurer’s bundle p 58

5. Dr Powell reported Mr Pietryga complained of pain in the thoracolumbar region. Dr Powell found the examination of the claimant challenging. He was noted to be in marked discomfort and unable to lie supine. He described a slow stiff gait.  He noted diffuse tenderness to palpation of the posterior aspect of the thoracolumbar spine but no muscle spasm. Mr Pietryga declined to attempt range of motion testing. He noted normal tone but reduced power of all movements of the left foot and reduced sensation to light touch of the left foot.  He found tendon reflexes were present, equal and symmetrical. Dr Powell found no features of a thoracic radiculopathy.

6. Dr Powell diagnosed musculoligamentous injuries of the thoracic and lumbar spine on a background of previous lower back pain. He reported the claimant’s recovery had been complicated by the development of a chronic pain syndrome. He noted a significant psychosomatic component to the claimant’s presentation.

7. He assessed 0% WPI of the thoracic spine and 5% WPI of the lumbar spine.

8. Dr Richa Rastogi, psychiatrist

9. In a report dated 7 October 2021 he diagnosed a major depressive disorder with anxiety caused by the accident.[63]  He reported the claimant’s prognosis was guarded given he continues to experience pain with functional limitations. He assessed a 13% WPI arising of the psychological injury.

   [63] Claimant’s bundle p 42

10. Dr Jeffrey Baron-Levi, vocational assessor

11. Dr Baron-Levi assessed Mr Pietryga on 19 January 2023 and provided a report. He concluded, in all likelihood, there had been an over reporting of the claimant’s level of depression and future vocational opportunities may be limited by his physical restrictions.[64]

    [64] Insurer’s bundle p 500

12. Report of Dr Andrew McIntosh, biomechanical engineer

13. In his report dated 30 October 2023 Dr McIntosh concluded the claimant sustained musculoskeletal injuries to the cervical spine, the lumbar spine, the thoracic spine and both shoulders, although he concluded the duration of the symptoms would have been limited to three or four months.[65]  He stated at paragraph 94 that it was plausible that the claimant suffered ‘soft tissue’ type injuries to the spine and general soreness as a result of the accident.

    [65] AALD p 55

14. Dr McIntosh also concluded that the claimant’s assertion that he hit his head on the windscreen causing it to crack is not consistent with him wearing a properly and securely fastened seatbelt at the time of the accident. The Panel does not consider it necessary to form a view about this conclusion where it has not been asked to assess an injury to the head, although the Panel notes the claimant has been consistent in reporting he hit his head on the windscreen including making a contemporaneous report to Campbelltown Hospital on the day of the accident.

15. SUBMISSIONS

16. Claimant’s submissions

17. The claimant provided submissions dated 7 August 2023.[66] The claimant submitted Medical Assessor Woo did not undertake an assessment of the cervical, thoracic or lumbar spines.

    [66] Claimant’s bundle p 3

18. The claimant submits that the following findings under the heading of Method of Calculation is wrong at law:

    "The cervical spine and lumbar spine injuries were certified as "minor injury" or

    threshold injury by Dr Berry in his certificate dated 10 March 2020. Pursuant to
    the Motor Accident Guidelines, the assessment of the degree of permanent impairment is not required for these injuries."

19. The claimant submits there is no prohibition on assessing injuries which are caused by the accident that had been previously determined to be soft tissue injuries for permanent impairment, noting Medical Assessor Woo failed to understand his statutory task.

20. The claimant also submits Medical Assessor Woo failed to explain why he did not employ an alternative methodology, having regard to his findings about inconsistency, when he determined there was no assessable impairment in relation to the shoulders.

21. Insurer’s submissions

22. The insurer provided submissions dated 5 September 2023 addressing the question to be determined by the delegate of the President, that is where the assessment of Medical Assessor Woo was incorrect in a material respect.[67]

    [67] Insurer’s bundle p 5

23. The insurer disputes Medical Assessor Woo did not undertake an assessment of the three spinal regions and refers to his examination as set out on pages 6 and 7 of his certificate. The insurer submits there was nothing more Medical Assessor Woo could have done to assess the spinal impairment having regard to the claimant’s presentation and “total stiffness”. 

24. In relation to the bilateral shoulder injuries the insurer submits Medical Assessor Woo noted the inconsistencies in range of motion and other evidence including the findings of Dr Herald before concluding he was not satisfied as to the veracity of the claimant’s shoulder restrictions where he could not identify a medical cause.

25. The insurer concedes Medical Assessor Woo erred in stating an assessment of permanent impairment was not required for threshold injuries, but states, in any event it would not have given rise to a whole person impairment (WPI) greater than 10%.

26. The insurer provided submissions dated 25 November 2022 in respect of the permanent impairment dispute.[68]

    [68] Insurer’s bundle p 25

27. Cervical spine

28. The insurer submits the claimant did not sustain injury to the cervical spine giving rise to a whole person impairment where:

    ·following the accident, the claimant reported left sided neck pain but no tingling or neurological symptoms were noted in the arms or legs;

    ·the MRI scan of the whole spine of 26 June 2019 did not demonstrate any abnormality;

    ·the whole body scan of 28 June 2019 showed no abnormality in the cervical spine;

    ·Dr Davies reported no symptoms or abnormalities in the cervical spine in his reports of 14 November 2019 and 12 December 2019;

    ·in a report dated 12 February 2020 Dr Abraszko reported the MRI of the cervical spine was “normal” and made no report of cervical symptoms;

    ·Medical Assessor Neil Berry found ongoing pain and restriction of movement in the cervical spine without evidence of referral into the upper limbs and diagnosed soft tissue injuries to the cervical spine;

    ·in his certificate dated 31 August 2020 Medical Assessor Woo found the claimant’s neck pain had subsided;

    ·whilst Dr Herald observed muscle guarding on 6 October 2021, he did not specify whether it was “significant, intermittent or continuous muscle guarding” as required by the AMA 4 Guides. Dr Herald reported “non-verifiable radicular complaints”, and noted a positive Spurling’s test but did not specify whether the reported symptoms “follow the distribution of a specific nerve root” as required by Table 6.8 of the Guidelines; and

    ·when assessed by Dr Powell on 24 June 2022 the claimant did not raise any concerns relating to his neck.

29. Thoracolumbar spine

30. In relation to the thoracolumbar spine the insurer notes the pre-accident history as follows:

    ·a CT scan on 2 September 2010 found “minor L4/S1 and L5/S1 posterior disc bulging without neural compromise”;

    ·on 29 September 2010 the claimant was referred to Dr Dave in relation to “back pain, radiating down left leg, with pain worse on coughing, weight bearing and rotating leg”;

    ·on 3 March 2011 Dr Abraszko noted back pain radiating to the left leg and the claimant was unable to work;

    ·on 20 June 2019 Dr Abraszko reported she saw the claimant on 5 April 2011 with an MRI of the lumbar spine which demonstrated a mild disc bulge at L5-S1;

    ·on 4 November 2016 the claimant sought chiropractic treatment from Dr Mitchell Foord in respect of lower back pain;

    ·Dr Food reported ongoing lumbar pain on 5 January 2017;

    ·an X-ray of the thoracic and lumbar spine was performed on 5 February 2019, three months prior to the accident;

    ·the claimant saw Dr Foord on 1 April 2019, six weeks prior to the accident with “para vertebral muscle hypertonicity pain and stiffness thoracic am”;

    ·the discharge summary of Campbelltown Hospital makes no reference of symptoms in the thoracic or lumbar spine;

    ·neither Dr Davies nor Dr Herald report any traumatic change in the imaging of 15 May 2019 and 21 May 2019;

    ·symptoms reported by Medical Assessor Woo were not observed by Medical Assessor Berry;

    ·the insurer submits the claimant’s extreme presentation cannot be validly explained by reference to accident related injuries, noting the lack of traumatic pathology;

    ·the insurer relies upon the opinion of Dr Powell; and

    ·in assessing a 5% WPI for the lumbar spine Dr Herald did not state there was dysmetria and did not set out how the claimant satisfied the definition of non-verifiable radicular complaints.

31. Bilateral shoulders

32. The insurer submits the claimant did not sustain any injury to his shoulders because:

    ·Campbelltown Hospital reported “elbow extension and flexion” were “restricted due to pain” but normal reflex, sensation and coordination noted of the wrist and shoulder;

    ·the claimant did not report shoulder pain to Dr Wang;

    ·shoulder pain was referenced in the physiotherapy records of Dr Ivins on 24 May 2019 but not subsequently referenced;

    ·the claimant did not list injury to the shoulders in his Application for personal injury benefits dated 31 May 2019;

    ·the ultrasound of the right shoulder on 17 August 2017 found “mild supraspinatus tendonitis”; and

    ·the claimant failed to raise concerns in relation to his shoulders with Dr Powell.

33. Chronic pain syndrome

34. The insurer relies on section 6.38 of the Guidelines which provides:

    “Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”

35. The insurer submits no separate allowance can be made for permanent impairment as a result of chronic pain syndrome.

36. MEDICAL EXAMINATION

37. Mr Pietryga was examined by Medical Assessor Michael Couch at the Commission rooms over a period of 75 minutes on 12 February 2024. He was accompanied by his girlfriend, Helena, who appeared to be quiet and supportive and did not interfere in any way with the examination.

38. On arrival, Mr Pietryga advised he had been staying in Cairns for the past couple of months. He has a cousin and aunt living there and his mother had paid for him to fly up to Cairns. He commented that he felt better in a warmer climate. Helena comes from the Cairns area and on this occasion had driven him to his appointment.

39. At the outset Medical Assessor Couch proposed going through the history recorded in Assessor Woo’s certificate of 24 July 2023. Mr Pietryga said he would prefer the history be taken afresh and expressed some dissatisfaction with previous assessments. Medical Assessor Couch agreed and proceeded accordingly.

40. Pre-accident history

41. Mr Pietryga said that he grew up in Liverpool and left school after Year 10 and obtaining his School Certificate, to complete an apprenticeship as a diesel mechanic. He explained that his father had his own transport business and while still at school he used to work as a mechanic on the truck fleet to earn money. He said this served as a pre-apprenticeship and he then completed a four-year diesel/heavy vehicle mechanic apprenticeship with Tri-City Trucks.

42. Later, towards the end of the assessment, when he asked to sit down and was apparently in quite severe pain and took some medication, he became tearful and shaky. He commented that when he was a boy, his father would criticise him if he was ever tearful. He described his father as a very hard man. His parents had since separated and recently Mr Pietryga had been staying with his mother.

43. After completing his apprenticeship, Mr Pietryga worked maintaining equipment for the construction of the Tarcutta-Albury bypass for nearly two years, stating that he earned better money there. Other places he had worked, but not necessarily in chronological order included:

    ·Port Kembla at the Wollongong Truck Centre for about two years;

    ·Rutley Freightlines for about four months;

    ·a mine near Mackay; and

    ·bus companies, both in Wagga Wagga and Sydney.

44. Mr Pietryga said he started his last job with Interline in Ingleburn in 2018 and had worked there for a about a year prior to the accident. He described this as his “dream job”, which was only three minutes’ drive from home. He said the company had about 200 buses and had Government contract work, including school bus runs, and also did charters. He was one of about 10 mechanics maintaining the fleet.

45. Mr Pietryga said his employer had treated him very well after the accident, trying to find suitable duties for him. They gave him a position of “fleet assistant” in the office. He described various provisions being made for him, including a sit/stand desk. He tried to go back to office duties but was in too much pain and could not concentrate.  He was not certain whether he was still nominally on the books or not.

46. Mr Pietryga described a low back injury in his early 20’s. This was shortly after he completed his apprenticeship when he was doing some self-employed, sub-contracting work. (It is apparent from Medical Assessor Woo’s certificate that he attended Dr Renata Abraszko, neurosurgeon, at that time.) He was treated conservatively including with chiropractic treatment and did not have surgery. He recalled being off work intermittently for some months but eventually making a full recovery.

1. At this stage of the interview, after about 10 minutes, Medical Assessor Couch observed Mr Pietryga got up from his chair to stretch because of back pain.

2. When asked how his back was prior to the accident he said it would occasionally get a bit sore – for example “after pushing a 300 kg gearbox into position”, but when this happened he would go to the chiropractor, and it would settle down again. Mr Pietryga said he had never had any time off work prior to the accident because of back pain, other than his initial absences in his early 20’s. On further questioning he denied having any time off work in the year he worked at Interline prior to the accident.

3. History of the motor accident

4. Mr Pietryga said on 15 May 2019, he left work at about 4 pm. He was driving his 1993 Toyota Landcruiser at an estimated 60-70 km/hr. He was wearing a seatbelt, but this older vehicle did not have airbags. He was driving along a straight road when a BMW X5 approaching on a minor road from the left failed to stop at a Stop sign and crossed his path. He “T-boned” the other car.

5. He described this as a very severe impact, commenting that a cousin of his, who lived some distance away on a rural property, heard the crash while he was watching television and came out to see what had happened.  The BMW apparently ended 50 to 100 metres away in a paddock and was subsequently written off. He said that his older model Land Cruiser (which had a rigid full box chassis) was quite severely damaged. The front axle differential was damaged and had to be replaced, and the front suspension was damaged. He went on to say that he did not have comprehensive insurance on the vehicle. Friends managed to replace the front differential and a friend straightened the deformed chassis.

6. Mr Pietryga thought that he had been knocked out briefly – he said that he recalled the initial noise of the impact and his next recollection was being out of the car by the side of the road. Despite wearing a seatbelt, his head hit and damaged the windscreen, leaving an imprint on it. His boss, who had been leaving work at about the same time, stopped at the scene, and called emergency services. Mr Pietryga said he was taken by another mate to Campbelltown Hospital Emergency Department.

7. History of symptoms and treatment following the accident

8. Mr Pietryga said he recalled walking into the paddock where the BMW had ended up, to check on the other driver, when he noticed initially severe pain in his upper back (thoracic area). He also recalled pain around the ribs, in the neck and the low back. He had subsequently been treated by his GP, also by Dr Renata Abraszko, neurosurgeon, who later referred him to Dr David Manohar, pain specialist.

9. He confirmed Dr Abraszko had not recommended surgery – apparently she had told him it was likely to make matters worse rather than better. She had in turn referred him to Dr Manohar to consider various block procedures. Mr Pietryga went on to say that both Dr Abraszko and Dr Manohar had suggested radiofrequency neurotomy procedures to relieve pain, but the insurer had refused to fund these.

10. Mr Pietryga also said he had been diagnosed with post-traumatic stress disorder for which he was taking the SSRI antidepressant Cymbalta (Duloxetine). He had taken various analgesics including the narcotic Palexia (Tapentadol) and the anti-inflammatory Mobic which caused gastrointestinal symptoms. He said he was now mainly relying on medicinal cannabis and CBD oil. He described these as being much more helpful than conventional medication, both for pain and his post-traumatic stress disorder symptoms.

11. When asked to provide his own assessment as to the efficacy of any treatments used Mr Pietryga said there had been no change for a considerable period. When asked if any treatments had helped, he replied: “just the chiro, cannabis and painkillers”. He had not attended a formal multidisciplinary pain management program and had not had surgery.

12. He said the insurer had paid for chiropractic treatment initially but not for some time. He described treatment as including deep tissue massage and manipulation. On questioning, he said this was the chiropractor who had treated him for his back many years before, commenting that he had not seen him for a long time prior to the accident.

13. Current Symptoms

14. Mr Pietryga described his current symptoms in detail.

15. Thoracic area

16. He said that the most painful area is between his scapulae, in the midline and to the right. Pain there is constant. He described pain as “feeling like a pressure” but at times going on to an electric shock sensation, with pain shooting around his ribs, sometimes to the nipple.  This can occur on either side at different times. He described trunk rotation (twisting) as the most painful movement, with this causes “f-ing agony”.  He also said that when this pain is bad, he cannot take a full or deep breath.

17. Neck

18. When asked about his neck, Mr Pietryga said that he only gets pain if he tries to look down – for example at his shoes. When this happens, pain shoots up from the mid-thoracic area to the neck. As far as Medical Assessor Couch could ascertain, he did not describe pain specifically localised to the cervical spine. He also said that every now and then he can wake up with a numb arm – this can be on either side.

19. Low back

20. Mr Pietryga described pain in the lumbosacral area, which is more intermittent than the thoracic pain.  This can radiate to either lower limb. More often this is on the left going down the thigh, all the way to the foot. On the right it is mainly more proximal. He also described radiating pain to his testes.

21. Post-traumatic stress disorder

22. Medical Assessor Couch asked Mr Pietryga briefly about psychological symptoms.  He said that he still has frequent, vivid flashbacks to the accident. He over-reacts, for example to loud noises, and is very anxious as a passenger in a car (his friend Helena confirmed this). When asked about nightmares, he said that he regularly wakes with both his bedsheets and doona soaking wet from sweat and that his mother has to put them out to dry.

23. Present Activities

24. Although his employer, Interline set up suitable office duties for him, he was unable to cope with these duties. Mr Pietryga had not done any other work since the accident. He is currently living with his mother. He has an eight year old who apparently has moderately severe autism and a healthy five year old daughter. He said that he had been engaged to their mother, but they had broken up about a year ago. Mr Pietryga became emotional when talking about his children – it seemed that he does see them at times. He commented that he could not even pick up his five year old daughter.

25. His mother is retired and usually lives alone. He said that he was unable to help her around the home or yard and felt bad about this. He added that he had bought his mother a self-propelled lawnmower as he could not do the mowing.

26. Mr Pietryga described his sleep as “rubbish”. He will typically go to bed at about 11pm but is slow to get off to sleep and wakes three or four times in the night and is often restless. He thought that he was averaging about four hours sleep per night and he never wakes feeling refreshed. He said he sometimes drives a Holden Calais (Commodore) but is anxious when driving and very careful. He described difficulty checking blind spots because he cannot twist his body properly to look around.

27. His only regular prescribed medication is Cymbalta 60 mg per day, although he occasionally takes the strong analgesic Palexia. He mainly relies on two different forms of medicinal cannabis (one in the morning and another one to help him sleep at night) and CBD oil.

28. Lifestyle factors

29. He does not smoke tobacco. He said that at one stage after his accident he was drinking heavily (up to a carton of beer per day) but now drinks very little.

30. Physical examination

31. Mr Pietryga arrived more than half an hour early. He walked in from the foyer slowly, looking very stiff with an abnormal gait. He looked very uncomfortable. He had short hair, a small, neat beard, and looked somewhat tired. Medical Assessor Couch reported he answered his questions in a straightforward manner, but also appeared to be in pain and struggling to cope. He demonstrated various pain behaviours but also seemed to cooperate as well as he could. He was obviously fearful of aggravating the pain with various movements (he mentioned that some examiners had performed passive movements, particularly of his upper limbs, which he had found very painful).  On this occasion all movements were performed on a strictly active and voluntary basis.

32. His height was 178 cm and his weight was 77 kg – he said that he had lost some weight. Upper and lower limb musculature was quite well preserved. He was wearing a buttoned, short-sleeved open-neck shirt, shorts and sandals. Sandals and shirt were removed for the examination, and I noted that his girlfriend helped him button up the shirt again afterwards. He stood intermittently, apparently for pain relief, during the taking of a detailed history.

33. Cervical spine

34. Posture of the head and neck was within normal limits. Mr Pietryga did not report tenderness to palpation over the cervical spine or adjacent muscles. Both trapezius muscles were somewhat tense to palpation but not tender.

35. Active range of movement (AROM) of the cervical spine was quite restricted, with dysmetria. Mr Pietryga was only able to flex the neck minimally, describing pain mainly between the scapulae when he tried this. In contrast, extension was about half of normal. Rotation was about half of normal to the left, but only a quarter of normal to the right – he said that turning to the right was always more difficult (as can be seen below, the same asymmetry was detected in the thoracic spine).

36. There was no detectable muscle guarding/spasm around the cervical spine. His description of intermittent arm numbness after sleep did not qualify as a non-verifiable radicular complaint. Examination of the upper extremities (see below) showed no objective evidence of cervical radiculopathy.

37. Thoracic spine

38. Posture of the thoracic spine with Mr Pietryga standing or sitting was within normal limits. He reported marked tenderness to palpation over the mid-thoracic spine at approximately the T6-T7 level. Spinal rotation (which mainly occurs in the thoracic spine) was assessed with Mr Pietryga sitting in a chair to stabilise the pelvis.  This was consistently about half of normal to the left but minimal to the right - he said this is always the case.

39. He also commented that at times, if he rotates to the right, he gets shooting pain around to the nipple. Mr Pietryga said that his younger sister is an Occupational Therapist and had given him a grip device, which he can attach to the door striker of the driver’s door on his car, to help him get in – he finds twisting when getting in and out of the car very painful.

40. Medical Assessor Couch found dysmetria in the thoracic spine and non-verifiable radicular complaints.

41. Lumbar spine

42. Posture of the lumbar spine was within normal limits. On palpation Mr Pietryga reported moderate but lesser tenderness over the lumbosacral spine than in the mid-thoracic area. He also reported moderate tenderness over the left sacroiliac joint (SIJ).

43. AROM of the lumbosacral spine was assessed with Mr Pietryga standing with knees straight. He could only manage minimal forward flexion, complaining of pain, but could extend to about two-thirds of normal, stating that this felt more comfortable.  Lateral flexion was minimal to either side.

44. Medical Assessor Couch also assessed for true paraspinal muscle spasm by palpating these muscles while the claimant walked slowly in front of him.  The paraspinal muscles on the weight bearing side relaxed alternately, suggesting no true spasm.

45. Medical Assessor Couch found dysmetria in the lumbosacral spine. His description of lower limb symptoms could be interpreted as non-verifiable radicular complaints.  Examination of the lower limbs did not show objective signs of radiculopathy.

46. Upper extremities

47. Mr Pietryga’s hands were very clean and generally soft, although one or two callouses were observed over the metacarpal heads. On discussion he said his hands were the cleanest they had ever been. He said that the callouses had persisted since his days as a mechanic, when his hands were much rougher.

48. Upper limb musculature was generally well-preserved bilaterally.  The right (dominant) upper arm measured 33.5cm circumference, the left 33cm, the right forearm 30cm and the left 29 cm.

49. Biceps and triceps reflexes were normal and symmetrical. Both brachioradialis reflexes were present, but the left was less brisk than the right. Grip strength was reasonable bilaterally, although effort was somewhat reduced. On sensory testing, Mr Pietryga described normal sensation above the wrists but possibly some subjective diminution in the left hand.

50. Turning to the shoulders, Mr Pietryga was quite apprehensive as previous passive examination of the shoulders had been very painful. With encouragement and demonstration of movements, he was able to perform reasonable (although reduced) AROM of both shoulders, as tabulated below. There was no detectable muscle wasting around either shoulder girdle and no tenderness to palpation over either glenohumeral joint (shoulder joint proper).

Right	Left
Flexion	100°	90°
Extension	20°	30°
Abduction	90°	90°
Adduction	0°	10°
External Rotation	60°	40°
Internal Rotation	50°	60°

1. Restricted internal rotation was further confirmed when he tried to reach each hand behind his back. He could reach the left thumb up to L5 level and the right only to buttock level (Mr Pietryga said that he is no longer able to clean himself after a bowel motion and uses a shower instead).

2. Lower extremities

3. Measured 10 cm proximal to the patella, the right thigh measured 44cm and the left 43.5cm.  The right calf measured 37cm and the left 36cm. Knee jerks and ankle jerks were brisk and symmetrical bilaterally. Seated straight-leg-raising was approximately 60 degrees bilaterally with no reproduction of radicular symptoms. Testing muscle strength in the lower limbs was difficult because of reported pain but there was no gross weakness and no convincing sensory loss.

4. Usually at the end of the examination Medical Assessor Couch takes the opportunity to observe some functional activities such as walking on heels and toes and squatting. Because Mr Pietryga appeared to be in considerable pain and was quite distressed and tearful Medical Assessor Couch did not ask him to do these functional activities – he said that he avoids squatting.

5. At the end of the examination Medical Assessor Couch rechecked AROM of the shoulders for consistency and found similar readings. He observed Mr Pietryga sit down in what seemed to be quite severe pain. He was tearful and shaking. When Medical Assessor Couch confirmed he had finished his examination, he took Palexia 100 mg and Cymbalta 60 mg for relief. Mr Pietryga said he could only take a shallow breath and that a deep breath caused pain around his ribs as far as the nipple. After about ten minutes’ rest he had settled down and appeared to be more comfortable. He expressed gratitude at having had the chance to explain his symptoms fully. He was able to leave the Commission rooms walking slowly with his girlfriend.

6. PANEL CONCLUSIONS

7. Diagnosis and causation

8. Mr Pietryga presents as an apparently previously healthy 37-year-old man who has worked as a heavy vehicle/diesel mechanic since leaving school after year 10. He describes good recovery from a low back injury in his early 20s. From his description he was probably getting some minor back symptoms over the years, for which he sometimes attended a chiropractor, but was apparently coping with quite physically demanding work prior to the accident. He states he was particularly happy in his last job with Interline for the year prior to the accident and describes considerable assistance from Interline in an attempt to return to work after the accident.

9. Mr Pietryga described a quite severe “T-bone crash” in which his older rigid-chassis Land Cruiser struck another car. There was no airbag (and probably no seatbelt pre-tensioning) and his head hit and damaged the windscreen. He recalls the immediate onset of back pain and neck pain.  It seems that the most dominant initial symptoms were in the mid-thoracic area, which is where he still describes the worst pain.

10. Imaging has been essentially unhelpful.  The finding of an active bilateral sacroiliitis on the SPECT CT bone scan of June 2019 and reported bilateral sacroiliitis on the CT scan of May 2019 raises the possibility of an inflammatory spondyloarthropathy such as ankylosing spondylitis. However, no other supporting radiological features elsewhere have been seen. Negative HLA-B27 would be helpful in further excluding ankylosing spondylitis, but the absence of such testing does not affect the Panel’s conclusions.

11. Mr Pietryga presented in a straightforward manner. He appears to have a well-established and quite severe chronic pain syndrome and to be functionally very disabled. There is probably an element of central sensitisation.

12. The Panel does not accept the conclusion of Dr McIntosh that the soft tissue injuries to the cervical spine, the lumbar spine, the thoracic spine and both shoulders would have only been symptomatic for three or four months. Firstly, the Panel does not consider Dr McIntosh is qualified to comment on the duration of symptoms arising from the accident.  Secondly, the Panel notes the consistency of ongoing complaint since the accident, the evidence of other medical examiners referred to below and the findings of Medical Assessor Couch on examination.

13. Based both on his history and examination by Medical Assessor Couch the most painful and abnormal area is the mid-thoracic spine. In this area, he had markedly reduced and asymmetric rotation with radicular pain radiating around the chest.

14. Cervical spine

15. In relation to the cervical spine the Panel has had regard to the insurer’s submissions in respect of the lack of complaint recorded by Dr Davies in 2019, by Dr Abraszko in her report of 12 February 2020, by Dr Powell on 24 June 2022 and by Medical Assessor Woo who concluded the claimant’s neck pain had subsided on 31 August 2020. 

16. However, whilst the emphasis has been on the cervico-thoracic spine the Panel is satisfied having regard to the consistency of complaint and the findings of Medical Assessor Couch on examination that the claimant sustained a soft tissue injury to the cervical spine. Specifically, the Panel notes:

    ·in his certificate dated 30 May 2019 Dr Cywinski certified the claimant unfit for work with a diagnosis of whiplash to the neck and the thoracic spine;

    ·Dr Abraszko diagnosed a musculoskeletal cervical strain in her report of 29 March 2021 and on examination noted painful movements towards the left side which she thought might have indicated compression of the left C5 or C6 nerve root;

    ·in August 2019 Leanne Spur, exercise physiologist diagnosed whiplash; and

    ·in his report of 8 October 2019 Dr Herald reported tenderness over the cervical spine with stiffness and restricted range of motion.

17. On examination Medical Assessor Couch found there was dysmetria in the cervical spine.

18. Lumbar spine

19. There was dysmetria and possible non-verifiable radicular complaints in the lumbosacral spine.

20. The findings of Medical Assessor Couch were consistent with the opinion of Dr Powell and Dr Herald.

21. The Panel notes attendances with Dr Mitchell Foord, chiropractor in 2016 and 2017 for back pain, and attendances with Dr Ivins, GP in January and April 2019 with lumbar/thoracic pain.

22. The Panel was convinced that there had been a major change in Mr Pietryga’s health and function since the accident, noting that he was coping with the physically demanding duties of a diesel/heavy duty mechanic up until that time.

1. Whilst he Panel accepts the claimant has developed a chronic pain syndrome notwithstanding the lack of traumatic pathology, the Panel is satisfied having regard to the entirety of the medical evidence and the examination of Medical Assessor Couch that the claimant sustained a soft tissue injury to the lumbar spine.

2. Both shoulders

3. The insurer submits the claimant did not sustain injury to his shoulders. The Panel notes the insurer’s submissions set out in paragraph 130 above.

4. The Panel accepts the claimant did not sustain a frank injury to his shoulders in the accident having regard to the lack of complaint made to Campbelltown Hospital following the accident and the failure of the claimant to list injury to the shoulders in his Application for personal injury benefits. 

5. There was moderate and reproducible restriction of AROM in both shoulders. This appears not to be related to intrinsic shoulder pathology but to be secondary to his thoracic/cervical spine pain in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[69]

   [69] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351

6. The Panel finds the following injuries were caused by the accident:

   ·cervical spine – soft tissue injury;

   ·lumbar spine – soft tissue injury;

   ·left shoulder – soft tissue injury secondary to cervical spine injury; and 

   ·right shoulder – soft tissue injury secondary to cervical spine injury.

7. PERMANENT IMPAIRMENT

8. The spine

9. The spine is assessed under Chapter 3 of the AMA 4 Guides in accordance with the diagnostic related estimate (DRE) method of assessment.

10. Based on the clinical signs the cervical spine is assessed as DRE category II giving 5% WPI.

11. The lumbar spine is also assessed as DRE category II giving 5% WPI.

12. The Panel notes attendances with Dr Mitchell Foord, chiropractor in 2016 and 2017 for back pain, and attendances with Dr Ivins, GP in January and April 2019 with lumbar/thoracic pain. However, the Panel does not consider that there is sufficient evidence of a pre-existing symptomatic impairment to make an impairment deduction.

13. The worst injury clinically is in the thoracic spine. It is also assessed as DRE II, giving 5% WPI. However, the Panel cannot include this in its assessment because the thoracic spine was not originally referred to Medical Assessor Woo. However, the Panel notes that this area was described as abnormal by several previous examiners. Assessor Woo had in fact considered a treatment dispute about thoracic spine blocks in August 2020.

14. The shoulders

15. Based on Medical Assessor Couch’s examination, each shoulder would be assessed as 15% upper extremity impairment by ROM, converting to 9% WPI each. The Assessor considered that his measurements were reliable. AROM was slightly worse than recorded by Medical Assessor Woo in July 2023 although the Panel noted that Dr Herald had recorded a better AROM in October 2021.

16. The Panel considered that it was open to it to assess 9% WPI for each shoulder. However, the Panel found that the observed restricted range of shoulder motion was much greater than would be anticipated due to discomfort from the neck or scapular area, which could not, on medical grounds, plausibly give rise to such gross restriction of motion. 

17. At most a neck or scapular injury would cause a mild restriction involving terminal range of elevation. 

18. Accordingly, the Panel elected to take a conservative approach of assessment of impairment by analogy. The impairment relates to the restriction of shoulder motion due to neck pain based on the Nguyen case principle.[70]

    [70] Nguyen [2011] NSWSC 351

19. Due to symptom referral from the neck, there could reasonably be a small impairment of both shoulders akin to the presence of mild acromioclavicular joint (AC) joint synovial hypertrophy. 

20. Table 20, page 59, AMA 4 Guides provides 10% joint impairment for mild joint swelling.  Table 18, page 56, AMA 4 Guides, provides a maximum whole person impairment of 15% for the AC joint.  10% of 15% is 1.5% or 2% whole person impairment after rounding up in accordance with the Guidelines. 

21. Therefore, the Panel finds there is a 2% WPI present for each shoulder.

22. The above figures are combined to give 14% WPI in accordance with the Combined Values Chart, AMA 4 Guides, Page 322.

23. There is no deduction for any pre-existing or subsequent impairment.

24. There is no adjustment for the effects of treatment.

Body Part or System	AMA Guides/ MAA Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1.	Cervical spine	AMA4 Chapter 3 Page 104	YES	5%	0%	5%
2.	Lumbar spine	AMA4 Chapter 3  page 102	YES	5%	0%	5%
3.	Right shoulder	Tables 18, 19	YES	2%	0%	2%
4.	Left shoulder.	Table 18, 19	YES	2%	0%	2%