Popovic v AAI Limited t/as AAMI
[2024] NSWPICMP 211
•8 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Popovic v AAI Limited t/as AAMI [2024] NSWPICMP 211 |
| CLAIMANT: | Sasa Popovic |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 8 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant’s application for review under section 63; Medical Assessor (MA) Shahzad determined claimant’s whole person impairment (WPI) at 6%; claimant alleges injuries to neck, back and shoulders in accident on 15 May 2017; no evidence of pre-accident symptoms but MA had deducted 50% of the claimant’s 12% WPI for a pre-existing condition; the insurer alleged there were no shoulder symptoms in the hospital notes and no shoulder symptoms complained of within a few months of the accident; insurer also referred to consistency issues in other examinations; Held – Panel satisfied mechanism of accident could have caused injury to the neck, back and shoulders; Panel satisfied on the contemporaneous medical records claimant did injure his neck, back and shoulders in the accident; the Panel found the claimant sustained soft tissue injuries to his cervical, thoracic and lumbar spines as well as soft tissue injuries to the left and right shoulder; cervical and lumbar spine assessed at DRE I 0%; no assessable impairment to thoracic spine; shoulders assessed by analogy due to inconsistencies of measurement at the examination and variation in measurements over time by other examiners; impairment assessed at 2% for each shoulder; claimant’s WPI not greater than 10%; certificate revoked as MA had included the 6% WPI in the certificate. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Shahzad dated 20 November 2023. 2. Certifies that the degree of permanent impairment that has resulted from the injuries sustained by Mr Popovic and caused by the motor accident on 15 May 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Mr Popovic was involved in a motor accident on 15 May 2017. A vehicle crossed from the other side of a wet road turning side on. Mr Popovic braked but the front of his vehicle collided with the passenger side of the other car.
Mr Popovic says he injured his neck, back and shoulders in the accident and made a claim for damages against AAMI, the third-party insurer of the vehicle Mr Popovic says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and Mr Popovic referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 20 November 2023, Medical Assessor Shahzad determined the claimant had a WPI of 6% which is, of course, a degree of impairment not greater than 10%.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 20 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 25 January 2024, the President’s delegate convened this Panel to conduct the Review proceedings.
LEGISLATIVE FRAMEWORK
Mr Popovic’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter is relevant.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment (such as the one undertaken by Medical Assessor Burns), further medical assessments (such as the earlier assessment of Medical Assessor McGrath and the current assessment of Medical Assessor Shahzad) and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Shahzad issued his decision on 20 November 2023 following a medical examination on 19 October 2023.
He says at [2] that he was asked to assess the following injuries:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) left upper extremity – shoulder dysfunction, and
(d) right upper extremity – shoulder dysfunction.
Medical Assessor Shahzad recounts the following history:
(a) the claimant injured his back at work in August 2014 and had some time off work and a course of physiotherapy;
(b) at the time of the accident, he was employed as a truck driver;
(c) the claimant was driving a truck when he was hit head on by a car which lost control;
(d) he got out of his truck after 15 minutes, police attended, and his boss took him to hospital;
(e) Mr Popovic had X-rays of his chest, cervical spine and thoracic spine and was discharge a few hours later;
(f) the claimant went to work the next day however in the following 7 – 10 days developed worsening pain in the neck and back and saw his general practitioner (GP);
(g) his GP declared him unfit for work and he has not returned to work;
(h) he had ultrasounds on 20 July 2017 which revealed bursitis but no tears;
(i) an MRI of the lower back on 21 July 2017 showed no fractures, nerve root compression or impingement but with mild wedging of L1 and a 20% loss of vertebral body height;
(j) he had five or six months of physiotherapy;
(k) he saw Dr Guirgis orthopaedic surgeon who said the L1 injury was old and there was “early arthropathy in the acromioclavicular (AC) joints and cervical spine”;
(l) he started chiropractic/osteopathic treatment in 2018 and in November 2020 reported symptoms of post-traumatic stress disorder, neck pain, headaches, shoulder pain and worsening back issues;
(m) scans in 2022 showed worsening features in the neck, lower back and shoulders, and
(n) the claimant had back problems before the accident which were not serious.
The claimant said his neck, lower back and shoulders have not recovered and he has pain. Medical Assessor Herald reports that Dr Guirgis has offered surgery which the claimant wants to have.
On examination of the neck at [15] there was no guarding, no dysmetria and an “inconclusive” neurological examination of the upper limbs. Cervical and foraminal compression tests were negative.
On examination of the lumbar spine there was no muscle guarding and a full range of motion and no neurological signs in the lower limbs.
The movement in both shoulders was severely restricted.
After reviewing the medical assessments and radiology, Medical Assessor Shahzad determined at [21] and [22] that the claimant did injure his neck, lower back and both shoulders.
Medical Assessor Shahzad determined there was a 0% WPI resulting from the neck and lower back injuries. He determined each of the injured shoulders had a WPI of 12% upper extremity impairment (UEI) which equals 7% WPI each which gave a total of 14% WPI. On the basis early arthropathy was found in both shoulders in 2018 he considered “degenerative pathology unrelated to the accident is significantly contributing to Mr Popovic’s current presentation” and he deducted 50% of the impairment for the pre-existing impairment.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the Medical Assessor’s deduction of 50% from the claimant’s shoulder impairment assessments. The claimant refers to cls 1.131 and 1.33 of the guidelines and says there was no objective evidence of a pre-existing symptomatic permanent impairment. The Medical Assessor had noted there was evidence of arthropathy in 2018 (after the accident) and that this arthropathy could have been and was caused by the accident.
The claimant says there is no evidence of the claimant having symptomatic shoulders before the accident. The claimant also says there is no “accurate information” at all regarding the claimant’s shoulders before the accident.
The claimant also argues that the Medical Assessor did not apply the correct test of causation and also that he failed to put the claimant’s pre-existing condition to the claimant.
Further submissions in response to the insurers were filed by the claimant saying again that the insurer has not pointed to any evidence of a pre-existing impairment.
Insurer’s submissions
The insurer notes no shoulder symptoms are recorded in the hospital notes on the day of the accident. The insurer also notes that the claimant was examined by Dr Skapinker two months after the accident and did not mention shoulder symptoms. Dr Skapinker thought the claimant was fabricating and voluntarily restricting motion.
The insurer notes that when examined by Dr Guirgis on 11 November 2017 the claimant had normal neck and shoulder joint movements.
The insurer says the Medical Assessor considered the previous certificate of Medical Assessor Burns who thought the claimant’s shoulder motion was sub-optimal.
The insurer also says the Medical Assessor had considered the report of Dr Korber and the radiology and that there were no tears in the shoulder but signs of arthropathy which is not unusual for a person of the claimant’s age.
The insurer argues there is evidence that the claimant never injured his shoulders in the accident and that the arthropathy is a medical term for a degenerative condition. Despite these assertions, the insurer says the Medical Assessor made an appropriate deduction for pre-existing condition.
PROCEDURAL MATTERS
On 1 February 2024, the Panel issued directions to the parties for bundles of documents. The Panel noted that there was an original medical assessment of WPI and a further assessment and that the Panel did not have any of the documents that were part of either of those files.
The Panel met on 7 March 2024 to discuss the matter. The Panel noted:
(a) injuries and issues – the submissions dealt only with the shoulder assessments and the Panel queried whether the claimant accepted the finding of 0% for the neck and lower back and whether the review was to be limited to the assessment of the claimant’s shoulder impairment only;
(b) documents – the Panel confirmed receipt of the documents and queried whether it had all relevant pre-accident records and also the relevance of certain visa and similar documents, and
(c) re-examination – the Panel advised the parties of the details of the re-examination on 22 March 2024.
The Panel allowed the insurer until 15 March 2024 to respond to the matters within the report. The claimant was given the opportunity to respond to the matters raised in our report by 20 March 2024.
On 22 March 2024, 30 minutes before the medical appointment was due to commence, the Panel received correspondence from the claimant’s solicitor that said, “We do not consent to the shoulders only, it should include neck, back and both shoulders.” The officer of the Commission who received the correspondence advised that the claimant’s solicitor had told her, “if the neck, back and both shoulders are not assessed at today's re-examination, the Claimant is inclined not to attend the re-examination.”
The Panel had already determined all injuries were to be reassessed due to the absence of the claimant’s timely response and the re-examination proceeded without issue.
REVIEW OF THE EVIDENCE
The claimant provided a bundle of documents of over 400 pages, and the insurer a bundle of documents of more than 600 pages.
The Panel notes that Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[5] said at [63]:
“The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[5] [2022] NSWSC 1079.
Claim form and claim documents
The claim form is dated 9 June 2017.[6] The claimant says he was driving along Barrenjoey Road at 60kmph when an out-of-control vehicle came sliding towards his vehicle. Mr Popovic says there was an impact from the car hitting his truck and that the load he was carrying on the truck then hit the cabin of his truck in a second impact.
[6] Page 17 of the claimant’s bundle.
The claimant alleges he sustained injuries to his neck, both shoulders, middle and lower back pain and that he suffers from constant headaches, anxiety and fear. He says he has attended Dr Tomka in Liverpool for treatment and has had no other injuries, illnesses or relevant medical conditions.
Dr Tomka signed the medical certificate attached to the claim form[7] and says he first saw the claimant as a patient in “June 2017”. The certificate indicates that an examination occurred on 26 May 2017 and the certificate is dated 26 May 2017. Dr Tomka says the claimant injured his neck, upper and lower back, both shoulders and psychological injury. He certified the claimant unfit to work (the date is indecipherable) and said he would next review the claimant on 20 June 2017.
[7] Page 25 of the claimant’s bundle.
The workers compensation file[8] indicates an accident occurred on 19 August 2014 and the claimant hurt his lower back. His treating doctor was identified as Dr Jovic in Dee Why and the claimant was investigated with radiology and had chiropractic treatment.
[8] Page 82 of the insurer’s bundle.
The claimant apparently made a workers compensation claim for the current claim and correspondence[9] suggests he did not work on 15 and 16 May 2017. He returned to work but took Friday 26 May 2017 off to see the doctor. Mr Popovic then worked again on Monday
29 May 2017 but has then been off work since and is living off his savings and with the support of friends.
[9] Page 102 of the insurer’s bundle.
Travel, visa and migration documents
Within the insurer’s bundle are copies of the claimant’s marriage certificate and his wife’s visa application forms. The Panel notes that these documents suggest that Mr Popovic started dating his wife to be in August 2016, conceived a child in or about April 2017 and that on 25 August 2017 he left Australia and travelled to Serbia where, on 9 September 2017, he married his wife in the fifth month of the pregnancy.
It would also appear the claimant returned to Australia on 2 October 2017 departing again on 29 December 2017 for the birth of his child (which occurred in January 2018) before returning again to Australia on 10 February 2018. The claimant’s wife then travelled to Australia with the infant on 28 May 2018. Mr Popovic had another trip away on
14 December 2018 arriving back in Australia on 27 January 2019.
The claimant’s wife’s visa application indicated the couple travelled together and shared all expenses including the cost of the wedding and that the claimant had been financially supporting his wife while she was overseas and he remined in Australia.
The documents submitted with the visa application also suggest the claimant and his wife have told the Department of Immigration that they had an active social life and engage in outdoor pursuits including bushwalking since being together in Australia.
The Panel asked the insurer the relevance of these documents and the insurer uploaded a message to the portal which included the following:
“The relevance of the Department of Home Affairs records is both contextual and relating to capability. They are to be read in conjunction with the Procare desktop report (from p.473, particularly p.490) as they establish the claimant’s physical ability to travel internationally including to a ski resort in Europe in the early period following the accident on 15 May 2017. This can be quite physically demanding including relating to the shoulders. Whilst there is some material that relates to the claimant’s former wife, the whole of the records provided by the Department of Home Affairs was included so as not to be misleading in any way and they were not lengthy. This evidence is in the context of no complaint of shoulder problems around this period of travel and not for many years thereafter, such that to the extent to which the claimant suffered any shoulder injury at the time of the accident, it is submitted that it had resolved.”
Pre-accident records
The insurer has obtained records from the Primary Health Centre in Brookvale. On
10 September 2015 the claimant attended reporting three days of lower back pain and itchy skin in the right lower back area following the application of tiger balm.
There is a letter on file[10] that states the claimant has not been a patient since
20 September 2016.
[10] Page 147 of the insurer’s bundle.
The insurer also obtained records from the Upper Mountains Medical Centre in Katoomba. The records contain details of two attendances, the first on 8 July 2016 for a sore throat and the second on 25 February 2020 for a vaccination.
Treating medical records and reports
The Mona Vale Hospital notes from the date of the accident[11] record neck and upper back pain with no pain elsewhere and no head injury. Mr Popovic was “moving all four limbs with good gross power”. There were no seat belt signs.
[11] Page 43 of the claimant’s bundle.
Mr Popovic was seen by Dr Tomka who provided a report dated 19 June 2018.[12] He records the claimant first attended on 26 May 2017 with the claimant demonstrating restriction of neck, shoulder and lumbar spine movements. He says he was not made aware of any pre-existing conditions. He observed that the claimant’s injuries were preventing him from going back to work and this would be permanent.
[12] Page 83 of the claimant’s bundle.
He notes the claimant requires regular visits to a GP, pain killers and physiotherapy at a cost of a few thousand dollars annually. Dr Tomka says the claimant cannot undertake domestic duties that he used to do and cannot take care of his daughter. He says the claimant’s relatives are providing about eight hours of domestic assistance per week.
Dr Tomka assessed WPI in accordance with AMA 5th edition at 19% (including a psychological injury).
Mr Cole of Leura Physiotherapy wrote to Dr Tomka on 8 June 2017[13] noting the claimant sustained a whiplash injury to his neck and lower back. When Mr Popovic presented, he complained of cervical neck pain, upper and mid trapezius muscle pain, headaches and dizziness and lower lumbar spine. Mr Cole notes “bilateral shoulder abduction and flexion movements caused tingling sensation in the right and left hand into the 1st and 2nd digits, but very vague at times.”
[13] Page 107 of the claimant’s bundle.
Mr Cole wrote again on 3 July 2017.[14] The claimant was complaining about dizziness, driving was aggravating his condition. The claimant had pain in the neck, restricted motion in the shoulders and “vague pain and tingling down the radial aspect of both arms and into the thumbs”. It was said to be quite vague but followed a pattern similar to a C6 radiculopathy. Neck flexion caused “tingling into both thighs and radiating down both legs and into the first toes which had not been mentioned before”. The claimant was also said to complain of “vague non-specific back pain”.
[14] Page 100 of the insurer’s bundle.
In a further letter dated 14 July 2017, Mr Cole was “unable to explain his continuing neurological symptoms, which are not consistent with any particular radiculopathy”.
Mr Baldwin, osteopath and chiropractor provided a lengthy report to the claimant’s solicitors which is undated.[15] He first saw the claimant on 23 October 2017. The claimant said that he had pain immediately after the accident as follows:
(a) occipital headache with neck pain;
(b) bilateral pain in the shoulders and forearms with tingling in three digits worse on the right;
(c) bilateral lumbosacral junction pain worse on the right and tingling, and
(d) disturbed sleep.
[15] It is found at page 379 of the claimant’s bundle.
On examination there were restricted neck movements, normal shoulder movements and painful motion in the lower back.
Mr Baldwin accepts the claimant’s complaints noting that the cervical spine strain would have occurred with the initial impact and the lower back injury caused by the second impact when the load on the truck shifted and collided with the rear of the cabin.
He considered the claimant was experiencing high levels of psychological stress which was impacting his recovery.
Dr Guirgis
Dr Guirgis wrote to Dr Tomka on 10 October 2017.[16] He has a history of the accident and the two impacts. He says the claimant sustained injuries to his neck, right and left shoulder and lower back.
[16] Page 209 of the claimant’s bundle.
Dr Guirgis provided a report dated 11 November 2017.[17] He says he first saw the claimant on 10 October 2017. He records complaints of pain in the neck and shoulders radiating down both arms and in the lower back radiating down the inside of both legs.
[17] Page 336 of the claimant’s bundle.
Impairment was assessed at 17%.
Dr Guirgis saw the claimant at the request of his solicitors on 28 February 2018 and provided a report dated 10 March 2018.[18]
[18] Page 26 of the claimant’s bundle.
On examination, Dr Guirgis found guarding and dysmetria with tenderness over C4, C5 and C6 but no neurological deficits. Both the left and right shoulder movements were restricted.
There was guarding and dysmetria in the lumbar spine but no neurological deficits.
Dr Guirgis diagnosed post-traumatic mechanical derangement of the cervical spine, right and left shoulder and lumbar spine.
Dr Guirgis assessed WPI at 18%.
Additional reports[19] dated 3 October 2019, 3 November 2020, 17 May 2021,
1 September 2022 and 7 March 2023[20] add little to the matter. Dr Guirgis was of the view that physically the claimant could return to lighter work but that his psychological injury prevented him from returning to any form of work at all.
[19] Page 255 of the claimant’s bundle.
[20] Page 231 of the claimant’s bundle.
Dr Guirgis provided a report dated 22 February 2023.[21] He notes a “sudden worsening of the neck condition” including the onset of C67/7 right sided symptoms and severe occipital headaches. The claimant also complained about worsening of his right L4/5 sciatic symptoms and increased pain and stiffness in his shoulders. Impairment was assessed at 26%.
[21] Page 231 of the claimant’s bundle
The worsening appears to have been the catalyst for nerve conduction studies on
23 January 2023[22] which identified a right C6-7 radiculopathy and mild bilateral median nerve dysfunction consistent with carpal tunnel syndrome.
[22] Page 253 of the claimant’s bundle.
Radiology
An MRI of the cervical spine was performed on 20 July 2017 at the request of Dr Tomka. There is no mention of disc bulges, no features of nerve root compression or impingement, no loss of cervical body height, no spondylolisthesis or abnormal cord signal reported.
Shoulder ultrasounds revealed no rotator cuff tendon tear but mild subacromial bursitis in both the right and the left shoulders.
An MRI of the lumbosacral spine revealed mild wedging of the L1 vertebral body said to be “20% loss of height – likely chronic or long standing” and there was mild disc herniation reported but no nerve root compression or impingement.
A bone scan dated 19 October 2017 revealed “early arthropathy in both acromioclavicular joints and cervical spine with minor / mild uptake, an L1 compression fracture with no increased activity “indicating an old injury” and no recent fracture.
The insurer relies on a report from Dr Korber, radiologist dated 4 April 2023.[23] He has a history of a lower back injury on 19 August 2014 and a further complaint in 2015.
[23] Page 12 of the insurer’s bundle.
Dr Korber was provided with the imaging from November 2022 and says, “there are no post-traumatic findings on the imaging in the cervical spine or lumbar spine even five and a half years after the injury”. In particular, he notes no focal disc herniation or protrusion in either the cervical or lumbar spine. There was a C3/4 disc bulge but as it was not mentioned on
20 July 2017 he says it must have occurred since and is therefore not related to the accident.
He says the findings in the shoulder are “reasonably found in any claimant of his age.” He says any shoulder injury would result in immediate complaints.
Dr Schneir, radiologist provided a report to the claimant’s solicitors dated 14 August 2023.[24] He examined the imaging from 20 July 2017 and 20 November 2022 and says:
(a) “there have been progressive changes at C3/4 in the cervical spine between the two examinations”. His opinion is that “it is possible that the pre-existing changes at this level were aggravated by the MVA”;
(b) on the MRI of the lumbar spine dated 20 July 2017 he says that there is no radiological evidence of acute injury, and
(c) in relation to the shoulders, the scans demonstrate rotator cuff tendinopathy and subacromial bursitis. It is possible that these were caused by or aggravated by the motor vehicle accident but said it was difficult to say this without any earlier imaging.
Medico-legal reports
[24] Page 285 of the claimant’s bundle.
Claimant’s expert
Dr Sheehan provided a report to the claimant’s solicitors dated 16 July 2019.[25] He has a history of the claimant resting at home after discharge from hospital, an attempt at returning to work but that Mr Popovic’s neck, back and shoulder pain increased, and he commenced attending on Dr Tomka.
[25] Page 187 of the claimant’s bundle.
The claimant told Dr Sheehan he had a back injury in 2013 with a compensation claim. He said he completely recovered from this.
There was no wasting or guarding and no spasm but there was asymmetry of thoracolumbar spine movements and neck movements. Shoulder motion was also restricted the right more than the left.
Dr Sheehan considered the claimant had sustained significant musculoligamentous strains and tears of the cervical and lumbosacral spine, aggravation of a lumbar spine injury and bilateral shoulder joint bursitis. He assessed WPI at 19%.
Insurers’ experts
Dr Skapinker, occupational physician provided a report to the workers compensation insurer dated 21 July 2017.[26] An interpreter was present and the doctor notes current complaints of severe headaches, severe pain in the neck and lower back and pins and needles with numbness in the arms and the legs all of which were getting worse.
[26] Page 117 and 203 of the insurer’s bundle.
Dr Skapinker notes the voluntary restriction of cervical, thoracic and lumbar spine movements and noted:
“He coimplained of an inability to raise his arms up above the horizontal. He was then observed to raised both of his arms up fully above his head when he took off and put back on his jumper.”
Dr Skapinker formed the view his clinical presentation was “one of gross exaggeration and fabrication”.
Of significance to the Panel is that Dr Skapinker has no specific complaints of shoulder injury or pain from the claimant noting that a Serbian interpreter was present.
Dr Miniter, orthopaedic surgeon provided a report to the workers compensation insurer dated 10 November 2017.[27] He records current complaints of ongoing neck and back pain with right upper limb weakness. Dr Miniter examined the upper limbs noting no muscle wasting and that right upper limb power was reduced to low power and “clearly intentional”. The claimant’s shoulder pain said to be in the root of the neck on the right side. Cervical spine movements were normal and there were no neurological signs. He considered the claimant fit for work. Again, the Panel notes that the claimant made no specific complaints of shoulder injury or shoulder joint pain or symptoms to Dr Miniter.
[27] Page 229 of the insurer’s bundle.
Dr Barrett, orthopaedic surgeon examined the claimant on 24 July 2018 and provided a report to AAMI.[28] He has a consistent history of the accident and Mr Popovic’s treatment. He notes the claimant sees an osteopath at Wentworth Falls once a week.
[28] Page 250 of the insurer’s bundle
The claimant complains of pain in his neck and both shoulders, a right fronted headache and intermittent numbness in both thumbs. The claimant also complained of thoracolumbar pain with intermittent numbness and pins and needles affecting the inner thighs, calves and feet.
On examination neck movements were full, there were full symmetrical movements in all planes of movement in the shoulders and complaints of pain in the lower back.
Dr Barrett reported inconsistencies and pain behaviour. In a separate report he found 0% WPI.
Dr Barrett provided a second report dated 30 July 2020. He noted the claimant had not worked and was dependent on family support and friends as he received no government assistance and workers compensation payments had ceased.
The claimant said he continues to have pain in his neck, both shoulder and lower back and headaches.
Cervical spine movements were performed to half range. Shoulder examination was difficult with some movements restricted due to pain. Some lumbar spine measurements were limited due to pain.
Bio mechanical reports
The insurer obtained a report from Dr McIntosh dated 16 April 2020 concerning the collision and the bio mechanic forces involved. Dr McIntosh expressed the opinions that:
(a) the collision was largely frontal but with longitudinal force acting rearwards on the claimant’s vehicle;
(b) the collision severity was low with change in velocity of 5 – 15kmph;
(c) there was no intrusion into the cabin and airbags did not deploy;
(d) the collision did not materially contribute to the injuries;
(e) it is plausible that a seat belt restrained driver might have experienced discomfort bruising and abrasions related to the seatbelt and a brief period of neck pain without structural injury, but
(f) it is unlikely that he would suffer a shoulder injury or low back injury.
A supplementary report dated 10 July 2020 was provided by Dr McIntosh after photographs were provided of the accident scene. He did not change his opinion and confirmed that the likely change in velocity was 10kmph.
Dr McIntosh prepared a second supplementary report dated 11 February 2021 in answer to that of Dr Johnston for the claimant. Dr McIntosh accepts there was a second impact (when the load on the back of the truck shifted) but disputes Dr Johnston’s finding noting the impact would have been minimal.
While Dr McIntosh has referred to a report of Dr Johnston, the claimant has not put the report of Dr Johnston in the material before the Panel.
Other assessments
Medical Assessor Burns issued a certificate on 29 January 2019 in respect of the claimant’s WPI.
The claimant disclosed a back injury at work three or four years previously. He indicated he had a doctor in Brookvale who spoke Serbian and he saw Dr Tomka after he moved to the Blue Mountains.
Medical Assessor Burns diagnosed soft tissue injuries to his cervical spine and lumbar spine and bursitis in the shoulders.
He assessed WPI at 11%. He noted, “I believe that the range of movement exhibited in both shoulders was sub-maximal as he was avoiding pain in the shoulders and neck region”.
On 7 August 2022, Medical Assessor McGrath assessed the claimant’s WPI at 2%. Medical Assessor McGrath found a normal range of neck movements with normal upper limb neurological examination. In the lumbar spine there was no non-verifiable radicular complaints although some paraesthesia into the 4th and 5th toes. Neurological examination was normal.
Shoulder movements were restricted but less so than at previous examinations. Medical Assessor McGrath noted there were no inconsistencies in the examination.
Many treatment disputes were also referred for assessment and Medical Assessor McGrath certified that only the vocational counselling was reasonable and necessary and caused by the accident.
RE-EXAMINATION FINDINGS
Mr Popovic attended for Medical Review Panel re-examination with Medical Assessor Oates on 22 March 2024 at the Commission’s medical suites. A Serbian interpreter was present for the duration of the assessment.
History provided by Mr Popovic
Pre-accident medical history and relevant personal details
Mr Popovic confirmed that on 19 August 2014, he sustained a back injury from making a certain movement at work where he was a factory hand, when his boss asked him to adjust the tines of a forklift. He was off work for about one week and had a course of physiotherapy and made a full recovery.
He does not recall any other injuries before the subject motor vehicle accident.
He came from former Yugoslavia to Australia in 1999. He worked in a variety of jobs and at the time of the subject accident, he was a casual truck driver but working full time hours. He had been in that job for three or four years.
He said he lived in a house with his wife, who worked part-time, and two children who are now aged four and six. He has three young adult children from a previous marriage.
Before the accident Mr Popovic said he enjoyed riding a motorcycle and played some social basketball. He is a non-smoker and non-drinker of alcohol.
His general health has previously been good, and he has had no serious illnesses, no operations and was on no regular medication prior to the accident.
History of the motor accident
Mr Popovic said on 15 May 2017 at about 7.20am, he was travelling in the work truck up a hill along Barrenjoey Road in Bilgola. The road was wet, and he was travelling at about 50-60kmph. He had a seatbelt on.
A Holden Commodore sedan travelling in the opposite direction lost control and started sliding towards his vehicle. He applied the brakes and this car slid sideways into the right front of the truck and then finished up across the front of the truck. He was delivering a 1-tonne load of bags of cement and sand, which were in the second section of the tray of the truck, and the bags slid forward into the back of the cab, causing him to suddenly be jerked backwards, after which he felt discomfort in the neck.
There was no airbag in the truck. He did not hit his head or lose consciousness. He was able to self-extricate through the driver’s door. Police attended.
He called his boss, as the depot was a short distance away, and the boss arrived and drove him to the Emergency Department at the local hospital at Mona Vale. He believes someone else drove the truck away but did not know what became of the truck.
History of symptoms and treatment following the motor accident
Mr Popovic had investigations done for chest pain, cervical and thoracic spine pain. There were no fractures. He was discharged at about 1.00pm or 2.00pm the same day.
He had a couple of days off, then returned to work and did not have any issues, however over the next week to 10 days, he developed increasing pain in the neck and lower back.
He saw his GP, Dr Tomka, on 26 May 2017 and was diagnosed with injuries to cervical spine, lumbar spine and both shoulders. He was put off work and started on medications and physical therapy was advised.
Mr Popovic said he has not been back to work since soon after the accident on account of pain in the neck, with occipital headaches, lower back pain and bilateral shoulder pain. He indicated the apex of both shoulders as the painful areas, with the right greater than left.
He said the back pain was radiating around to the lower abdomen bilaterally and down the posterior and medial right thigh and leg to the right hallux, with intermittent pins and needles in the right leg. If he would walk more than usual, he felt aching in the right leg and felt he might fall down, as his leg did not feel under control.
Shoulder pain spread to the adjacent upper arms if he lifted the arms above 90° of elevation.
His only source of income when he was not working was family savings and a parenting benefit. His wife worked on and off as a bank officer, but this was disrupted by COVID-19.
He had ultrasound scans of both shoulders in July 2017 showing subacromial bursitis but no rotator cuff tear, and MRI scan of the lumbar spine showing an old 20% wedging of L1 vertebral body. He then had an MRI scan of cervical spine, also showing some degenerative changes.
He had physiotherapy at a practice in Leura, with treatment to the back, neck and both shoulders for about six months, without significant benefit.
He went overseas to get married in September 2017 and was away for six weeks. When he returned, he saw Dr M Guirgis, orthopaedic surgeon, Newtown, on 19 October 2017 and he was sent for a bone scan. This showed the L1 compression fracture but no increased activity indicating an old injury, and with minor uptake in the cervical spine and both acromioclavicular joints.
His GP, Dr Tomka, then suggested hydrotherapy. Mr Popovic found that doing exercises in water increased his low back pain, but he was more comfortable when in a sauna or a jacuzzi which required no exercise.
Mr Popovic said he then tried some chiropractic manipulation for about six or seven months but there was only short-term benefit from that treatment. The symptoms continued, particularly the neck pain and headaches.
He reports continuing symptoms in the neck, shoulders and low back.
There was a further MRI scan of the lumbar spine in November 2022 showing loss of L1 vertebral body height with a large Schmorl’s node. The Medical Assessors note this is an indicator of Scheuermann’s disease which can cause a wedging appearance of vertebral bodies and is not a post-traumatic finding.
A further cervical spine MRI scan of November 2022 showed moderate right and mild left facet joint arthropathy at C6/7 and C7/T1 with a mild central to right posterolateral C4/5 disc bulge.
An MRI scan of right shoulder in November 2022 and MRI scan of left shoulder showed supraspinatus tendinosis.
He did recall having an X-ray of the lumbar and cervical spine in August 2014. The Panel notes this X-ray showed normal findings in the cervical and thoracic spine, and depression of superior endplate of L1 vertebral body consistent with an old compression fracture. He said he did have some difficulties with intermittent symptoms in the spine before the accident, but they did not interfere with any of his activities of daily living.
History of any relevant injuries since the motor accident
Mr Popovic said he had not been involved in any injuries since the accident and had no conditions other than those related to the accident.
Current symptoms and treatment
Mr Popovic says his worst problem was his neck pain with associated occipital headaches, particularly right-sided, then low back pain and then bilateral shoulder pain, with the right being greater than the left. Mr Popovic was asked to point to the source of his pain. He clearly identified the apex of both shoulders, right at the apex or point of the shoulders. He also pointed towards his lower back in the area of the belt line. When indicating where his neck pain was, he pointed to the neck and the trapezius area. He did not describe any pain at any part of his thoracic spine.
The back and shoulder pain are made worse if he tries to lift objects with his arms, for example his young children. He gets intermittent right leg pins and needles every couple of days and has constant pain from the shoulders into both upper arms. There is some relief by medications and local heat, and this will help the symptoms for a couple of hours.
He has Mersyndol tablets, five or six tablets per week, and Normison to help sleep as required. He was on Aropax as he had had a psychological condition following the accident, but ceased this medication after six months because there was no benefit.
In mid-2023, he was diagnosed with type 2 diabetes mellitus and commenced on Diabex. Mr Popovic was also diagnosed at that time with hypertension and commenced on Coversyl. He also has Ozempic injection for diabetes treatment and weight loss.
He remains under the care of his GP, Dr Tomka, but no longer sees any other doctors or allied health practitioners.
EXAMINATION
General presentation
The claimant was of tall heavy build with a height of 187cm and weight of 132.4kg. This results in a Body Mass Index (BMI) of over 37 which is in the severely obese class.
When removing and replacing his t-shirt, he said he might need assistance but was able to manage undressing and redressing, including taking his jeans on and off without help.
He complained of some discomfort when sitting for prolonged periods and when lying flat on the examination couch which the claimant said affected his lumbar spine.
Cervical spine (cervicothoracic)
There was no guarding. There were no non-verifiable radicular complaints following a specific spinal nerve root pathway. There was tenderness at C5 centrally. There was no dysmetria. Flexion and extension were both one-half normal range, lateral flexion one-quarter normal range bilaterally and rotation one-third normal range (25 – 30 degrees) on both sides.
Mr Popovic was informally observed with a greater range of motion when turning to speak to the interpreter. He was asked why there was a greater range of rotation movement than one-half normal when he turned to speak to the interpreter and his reply was, “It is the same, 45 degrees”.
For the purposes of a neurological examination the claimant’s upper limbs were examined. Reflexes were brisk and symmetrical and power was normal in the upper limbs. Sensation was normal in the left upper limb and in the right was intact, except some subjective partial reduction of sensation to light touch was reported on the medial and lateral aspect of the forearm, distal to the elbow, and into the right thumb but not the other fingers. This is a non-dermatomal distribution.
Mr Popovic’s upper arm girth was measured at right 35.5cm and left 35cm, 10cm above the elbow. His forearm girth was measured at right 32.5cm and left 32cm measured at 5cm below the elbow. The claimant is right-handed, and the Medical Assessors note this slight difference in girth reflects his right-hand dominance.
There were no positive nerve root tension signs on testing.
Thoracic spine (thoracolumbar)
Mr Popovic did not complain of any signs or symptoms in his thoracolumbar spine. On examination there was no evidence of any abnormality.
Lumbar spine (lumbosacral)
There was no guarding. There was tenderness at L4. There were no non-verifiable radicular complaints following a specific spinal nerve root distribution.
The reported reduction of sensation in the lower extremity traversed a number of dermatomal territories including L4, L5 and S1. Sensory loss was not established on objective testing.
There was no dysmetria. Flexion and extension were both one-half normal, limited by low back pain complaints. Lateral flexion was one-third normal bilaterally and rotation in the thoracic spine was one half normal bilaterally with complaint of right and left mid back pain.
Reflexes were brisk and symmetrical. Plantar responses were both flexor. Sensation was intact bilaterally, as was power in the lower limbs. Supine straight leg raising; right 30 degrees with complaint of low back pain radiating to the anterior thigh and calf pain, and on the left 40 degrees with complaint of low back pain radiating to the calf.
The range of active straight leg raising demonstrated by the claimant was not in a range to cause any stretch of the sciatic nerve root. It is therefore considered as a negative nerve root stretch test.
Thigh girth; right equals left equals 54cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 43cm at 14cm below the inferior patellar pole.
Mr Popovic was asked about the fact that Dr Shahzad recorded full range of movement in the lumbar spine in flexion, extension, left and right lateral flexion, and left and right rotation. His reply was that he did not show full movements when examined by Dr Shahzad.
Upper extremity
Active range of movement was measured with a goniometer. The movements (recorded in degrees) were as follows:
Movement
Right shoulder ROM
Left shoulder ROM
Flexion
90, 110, 90
130, 110, 120
Extension
40, 50, 50
40, 30, 20
Abduction
130, 90, 90
130, 105, 90
Adduction
20, 30, 30
40, 30, 40
Internal rotation
40, 40, 40
50, 40, 30
External rotation
70, 50, 60
50, 60, 40
There was some tenderness reported over the apices of the shoulders. Impingement test negative bilaterally. There was no instability in the AC joints or glenohumeral joints bilaterally.
Mr Popovic showed inconsistency with variable range of movement on active testing of many but not all the movements in both shoulders, on the day of assessment. When this was put to him at the conclusion of the formal part of the examination, he said that he was in pain which was increasing as the examination progressed. Mr Popovic made no complaints during the course of the shoulder examination about any increasing pain.
Mr Popovic was asked why the range of movement in internal rotation was worse than when he was assessed by Medical Assessor Shahzad and the reply was that he did not believe Medical Assessor Shahzad’s range of movement measurements were accurate because he was only examined for a 10-minute period.
Mr Popovic’s measurements varied from those obtained by other examiners whose findings are reported in the attachment to these reasons. Mr Popovic explained that his injuries were getting worse since the date of the accident. Mr Popovic also said that his shoulder movements were limited by shoulder pain and low back pain. The Medical Assessors note that is not physiologically possible for low back complaints to have an effect on active movements of the shoulders.
DETERMINATIONS
What injuries did the claimant sustain in the accident?
The test of causation
The Panel notes the test of causation referred to in cl 1.6 of the Guidelines:
“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.”
Could the accident have caused or worsened an injury?
The Panel notes the biomechanical report of Dr McIntosh and his supplementary report which deals with a report from Dr Johnston (not put before the Panel). The Panel notes that the supplementary report from Dr McIntosh gives a fair indication of Dr Johnston’s opinion. The Panel did not, in the circumstances consider it necessary to delay the finalisation of these proceedings to await a copy of the report from Dr Johnston.
Dr McIntosh expresses the opinion as to the likelihood of injury but does not, and cannot say that any injury at all is impossible.
There were two impacts, one from the insured vehicle at the front and the other from the truck’s load at the rear. It is the Medical Assessor’s clinical view that this mechanism of injury could have given rise to an injury to the claimant’s neck, middle (or upper) and lower back and shoulders.
Did the accident cause or worsen an injury?
The Panel notes that the claimant has given a consistent history to examiners that he was aware of pain in his neck, lower back and shoulders immediately after the accident. The Panel notes however, while the claimant went to hospital on the day of the accident the hospital records only neck complaints. The Medical Members of the Panel note that some injuries can take a few hours or days to become evident and the absence of complaints in the hospital records of lower back or the shoulders is not determinative of the issue of causation in this case.
The Panel observes the claimant is not one to attend on medical practitioners frequently. The records of the two pre-accident practices show very few attendances. The claimant had some time of work, returned to work but then said he went to his doctor when his pain got worse. The Panel accepts this explanation for why there are no treatment records in the first 10 days after the accident.
The neck, upper (middle) and lower back, right and left shoulders are mentioned in
Dr Tomka’s medical certificate dated 26 May 2017 and in the clam form dated 9 June 2017.The cervical and lumbar spine are mentioned in the physiotherapy records of June and
July 2017. The thoracic spine is not mentioned in the physiotherapy records. While neither shoulder is specifically mentioned, the physiotherapist’s report records trapezial trigger points adjacent to the shoulders which can, in the Panel’s experience be taken as shoulder pain. The claimant was however adamant when examined by Medical Assessor Oates that from the time of the accident he experienced pain in the apex or point of his shoulders.The Panel is satisfied on the basis of Dr Tomka’s records and the claim form that the accident did cause an injury to the claimant’s neck, upper and lower back and both shoulders.
What is the nature of the injuries caused by the accident?
There is no evidence of any structural damage to the spine (in terms of fractures or dislocations). The L1 fracture visible on radiological images after the accident is accepted by the expert radiologists as pre-existing. The Panel notes the opinion of the claimant’s expert, Dr Schneir who has examined the 2017 radiology which shows degenerative changes in the lumbar spine but no canal narrowing or discrete nerve root compression which might explain the cause of any low back pain and neurological symptoms at that time. Imaging of course will not show a soft tissue injury which can cause spinal pain.
Dr Schneir found minor annular bulging at C3/4 with associated osteophytic narrowing of the right foramen. While the claimant now has a bulge in the cervical spine with subtle increase in the narrowing of the right foramen due to increasing osteophyte development, there was no nerve root compression which could explain the cause of any neck pain and neurological symptoms at that time.
The Medical Assessors are of the view that the records of the treating doctors and the report of Dr Schneir support a finding that the claimant sustained soft tissue musculoligamentous type injuries to the cervical, thoracic and lumbar spine which in the cervical spine appears to have aggravated pre-existing degenerative changes.
While the contemporaneous records note complaints of left and right shoulder pain (to
Dr Tomka in May 2017), the Panel notes the physiotherapist’s reports (Mr Cole), the report of the osteopath and chiropractor (Mr Baldwin) notes and the report of Dr Skapinker do not include specific or particular shoulder complaints in July, August and September 2017.There were non-specific soft tissue changes in the shoulders bilaterally on MRI scans soon after the accident with only “mild subacromial bursitis” recorded.
On the basis of the notes most contemporaneous to the accident, the Medical Assessors are of the view that the claimant sustained a soft tissue injury to the left and right shoulder but no significant ligament or tendon damage.
PERMANENT IMPAIRMNT
Spinal impairment assessment
Assessment of the spine required consideration of chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a) cervical;
(b) thoracic, and
(c) lumbar.
In Mr Pavlovic’s claim, he alleges injury to all three areas.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7). Bearing in mind the nature of the injuries and the submissions of the parties, the Panel is of the view that DRE categories I, II and III are relevant as is the distinction of radicular symptoms versus signs of radiculopathy.
The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), which
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
What is Mr Popovic’s cervical spine (cervicothoracic) impairment?
There had been a documented injury which Mr Popovic says is causing pain. He therefore has at least a DRE category I impairment.
When examined by Medical Assessor Oates, there was no guarding, no dysmetria and no non-verifiable radicular complaints. Mr Popovic did complain of right forearm numbness but this was not in the clinical judgment of Medical Assessor Oates in a dermatomal distribution.
It is the Panel’s view that the claimant does not satisfy the requirements for a finding of a DRE category II impairment.
The Panel also notes that at the time of the re-examination, there were none of the five signs of radiculopathy:
(a) there was no loss of reflexes;
(b) there were no positive neural tension signs;
(c) there was no atrophy;
(d) there was no muscle weakness and there was, and
(e) there was no reproducible sensory loss.
The claimant does not satisfy the criteria of DRE category III in the cervical spine. There is no other relevant category in the AMA4 Guides or Guidelines which would apply.
The criteria present are consistent with DRE Cervicothoracic category I giving 0% WPI.
Does Mr Popovic have a thoracic spine (thoracolumbar) impairment?
Mr Popovic did not complain to Medical Assessor Oates of any signs or symptoms in his middle or upper back. He described neck pain limited to the cervicothoracic region only and there was no indication on examination of any abnormality.
The claimant may have had a soft tissue injury to his “upper” or “mid back” but the Panel is not satisfied that as at the time of the examination by Medical Assessor Oates there was any impairment resulting from that injury.
What is Mr Popovic’s lumbar spine (lumbosacral) impairment?
There had been a documented injury to the lower back which Mr Popovic says is causing pain. He therefore has at least a DRE category I impairment.
When examined by Medical Assessor Oates, there was no guarding, no dysmetria and there were no non-verifiable radicular complaints following a specific spinal nerve root pathway.
When examined none of the criteria were present to justify a diagnosis of lumbar radiculopathy. Reflexes were normal, sciatic nerve root tension signs were invalid and presumed negative, there was no atrophy, no muscle weakness and no reproducible sensory loss. While Mr Popovic complained of reduced sensation in the lower limbs, this was not in a specific spinal nerve root distribution (it included areas innervated by L4, L5 and S1) which correlated to any findings in the radiology or which could be reproduced on testing.
There was evidence of injury with persisting symptoms and the criteria present place
Mr Popovic in DRE Lumbosacral category I, giving 0% WPI.
Upper limb impairment assessment
The assessment of UEI is governed by chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment).
Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The usual method of assessing shoulder impairment is in accordance with part 3.1d. The Panel considers none of the other methods are appropriate for the injuries sustained by the claimant. The abnormal range of motion requires the measurement of six functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation.
Clause 1.50 of the Guidelines provides guidance as to how the range of motion method should be approached as follows:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2 Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.
1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
1.50.4 If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.
1.50.5 If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Is there inconsistency and should the range of motion method be used?
The Panel has included as attachments A and B to these reasons details of some of the range of motion measurements undertaken by the Panel and other examiners.
Medical Assessor Burns considered the claimant’s range of motion in his shoulders was “sub-maximal”. Dr Skapinker thought the claimant was exaggerating noting he could take his jumper off and put it back on but said he could not raise his arms above the horizontal.
Dr Miniter thought the claimant was voluntarily restricting range of motion and Dr Barrett noted inconsistencies and pain behaviours. Both Medical Assessor McGrath in August 2022 and Medical Assessor Shahzad in October 2023 found the claimant was consistent in his clinical presentation.
There was inconsistency demonstrated in the examination by Medical Assessor Oates in that when asked to formally demonstrate the range of cervical spine motion, the claimant showed less movement that when informally observed talking to the interpreter sitting next to him.
Mr Popovic also showed inconsistency with variable range of movement on active testing of both shoulders on the day of Medical Assessor Oates’ examination. The claimant was asked about this, and he said his pain increased as the examination progressed. The Panel notes Mr Popovic made this complaint only when challenged but not during the course of the shoulder examination.
Mr Popovic’s range of motion varied greatly when compared to the measurements obtained by Medical Assessor Shahzad and there were also variations when compared with the other examinations. The claimant did not agree with all of Medical Assessor Shahzad’s documented findings on the basis of the length of time of the examination. It is not appropriate for the Panel to comment further on this. The claimant also said his injuries were getting worse since the time of the accident. While the Panel has accepted the claimant sustained soft tissue injuries in the accident, soft tissue injuries do not tend to get worse over time and any worsening over time is likely to be due to other factors or underlying degenerative changes such as those in the claimant’s cervical spine and in the shoulders.
Because of the inconsistencies in range of shoulder motion at the time of the Panel re-examination, and variation across the findings reported by other examiners, the Panel is of the view that active range of movement could not be used as a reliable indicator of permanent impairment.
Dr Tomka reported on 26 May 2017 that the claimant had restricted shoulder movements,
Mr Cole reported restricted motion in the shoulders on 3 July 2017. Mr Baldwin recorded normal range of motion on 23 October 2017. Dr Guirgis has since 11 November 2017 reported restricted shoulder motion with ongoing impairment. Dr Barrett recorded normal range of motion in the shoulders in July 2018. Dr Sheehan reported restricted motion in
July 2019.While the claimant has on at least two occasions demonstrated normal range of shoulder motion suggesting no impairment resulting from the accident-related injuries, the claimant has on the majority of occasions, and in the first records, demonstrated a restricted range of motion. The Panel is satisfied on the balance of probabilities that there is an impairment present in each of the shoulders related to the accident.
How should impairment be assessed?
The Panel considers that it is appropriate to use the impairment rating from an analogous condition to assess the likely permanent impairment in this matter. It is the clinical judgment of the medical members of the Panel that the analogous condition would be mild joint crepitation from derangement of the acromioclavicular joint. The Panel notes in support of this that there was uptake in both joints in a bone scan dated 19 October 2017 signalling early arthropathy in both acromioclavicular joints.
Table 18 in AMA4 provides that the acromioclavicular joint represents 25% of upper extremity function.
Table 19 in AMA4 provides that mild joint crepitation attracts a 10% impairment of the joint. When that 10% is applied to the 25% proportion of shoulder function, this gives a 2.5% UEI which is rounded up to 3%. According to Table 3 of AMA4 a 3% UEI is the equivalent to 2% WPI for each shoulder.
CONCLUSION
The Panel is therefore of the view that the claimant has a WPI of 4% comprising:
(a) cervical spine - DRE category I – 0%;
(b) thoracic spine - no assessable impairment;
(c) lumbar spine - DRE category I – 0%;
(d) right shoulder - 2%, and
(e) left shoulder - 2%.
While the Panel has arrived at the same outcome as Medical Assessor Shahzad (WPI not greater than 10%), we have arrived at a different figure (4% not 6%). Because Medical Assessor Shahzad included the actual percentage impairment in his certificate, it follows that the Panel must revoke his certificate.
ATTACHMENT A
LEFT SHOULDER MEASUREMENTS
| Right | Flexion | Extension | Abduction | Adduction | Internal Rotation | External Rotation |
| Dr Guirgis 11/11/17 | 150 | 50 | 140 | 50 | 80 | 50 |
| Dr Guirgis 10/3/18 | 150 | 20 | 140 | 30 | 70 | 70 |
| MA Burns 30/1/19 | 140 | 50 | 120 | 50 | 60 | 90 |
| Dr Guirgis 3/11/20 | 150 | 20 | 140 | 30 | 60 | 40 |
| MA McGrath 7/8/22 | 160 | 50 | 150 | 40 | 80 | 60 |
| Dr Guirgis 22/2/23 | 150 | 20 | 110 | 30 | 60 | 40 |
| MA Shahzad 19/10/23 | 90 | 30 | 90 | 40 | 70 | 70 |
| MA Oates 14/3/24 | 130, 110, 120 | 40,30,20 | 130, 105, 90 | 40,30,40 | 50,40,30 | 50, 60, 40 |
ATTACHMENT B
RIGHT SHOULDER MEASUREMENTS
| Right | Flexion | Extension | Abduction | Adduction | Internal Rotation | External Rotation |
| Dr Guirgis 11/11/17 | 160 | 50 | 170 | 40 | 70 | 50 |
| Dr Guirgis 10/3/18 | 150 | 40 | 140 | 50 | 80 | 50 |
| MA Burns 30/1/19 | 120 | 50 | 120 | 40 | 70 | 90 |
| Dr Guirgis 3/11/20 | 150 | 50 | 140 | 50 | 80 | 50 |
| MA McGrath 7/8/22 | 160 | 50 | 150 | 40 | 80 | 60 |
| Dr Guirgis 22/2/23 | 150 | 40 | 140 | 50 | 80 | 50 |
| MA Shahzad 19/10/23 | 90 | 30 | 90 | 40 | 70 | 70 |
| MA Oates 14/3/24 | 90, 110, 90 | 40, 50, 50 | 130, 90, 90 | 20, 30, 30 | 40, 40, 40 | 70, 50, 60 |
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