QBE Insurance (Australia) Limited v Cross

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Cross [2024] NSWPICMP 662
CLAIMANT:	Terrence Cross
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	18 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review by insurer; permanent impairment assessed at 14% by Medical Assessor (MA); injuries assessed include cervical, thoracic and lumbar spine; claimant was a self-employed builder at the time of the accident who had pre-accident back pain with left sided sciatica; claimant developed right side sciatica after the accident; consideration of Diagnostic Related Estimate (DRE) categories, five signs of radiculopathy and clause 6.138 of the Motor Accident Guidelines; Held – the Medical Review Panel assessed cervical spine injury at 0%, thoracic spine at 0%, and lumbar spine at 5%; Medical Assessment Certificate revoked; no matter of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Harrington dated 23 February 2024. 2. Certifies that the degree of permanent impairment that has resulted from the injuries caused by the motor accident on 20 June 2020 is 5% which is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 20 June 2020, Terrence Cross was involved in a motor accident. A car coming in the opposite direction lost control. The front of Mr Cross’s car hit the side of the other car as it slid sideways and crossed onto the wrong side of the road.
Mr Cross was 57 at the time of the accident and is now 61 years of age. He says he injured his spine (neck, mid and upper back) in the accident as well as sustaining a head injury and sternal fracture. He made a claim for statutory benefits and then damages against QBE, the third-party insurer of the vehicle that 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 Cross referred that dispute to the Personal Injury Commission (Commission) for assessment.
On 23 February 2024, Medical Assessor Harrington determined the claimant had a WPI of 14% which is, of course, greater than 10%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 17 June 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 18 June 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Mr Cross’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 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.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Dispute resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.5(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect” the material error, then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.5(2) and (2B).
The review is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.5(3A)).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant. That chapter provides the Diagnostic Related Estimate (DRE) model of assessment for injuries to the spine which will be explained in detail later in these reasons.

ASSESSMENT UNDER REVIEW

Medical Assessor Harrington examined the claimant on 21 February 2024 and issued his certificate on 23 February 2024.
He confirms at [2] that he was asked to assess the claimant’s cervical, thoracic and lumbar spine injuries all of which were described as being an “aggravation of degenerative changes accompanied by radiculopathy”.
Medical Assessor Harrington records the claimant’s history as follows:
(a)    he is 60 and was working as a self-employed builder since 1978;
(b)    the claimant reported an episode of back pain in 2013 with associated left leg pain and pins and needles in his foot. He was investigated, prescribed Lyrica for sciatica and referred to Dr Isaacs and had nerve blocks in 2014 and 2015. He had little time off work and said his symptoms settled over time;
(c)    according to notes he had back pain from June 2007;
(d)    the accident occurred in an area with a speed limit of 90 kmph. A car came onto the wrong side of the road and there was a collision. Airbags deployed and the claimant had lacerations, abrasions, chest pain, neck and right shoulder /arm pain and a fractured sternum;
(e)    five days after the accident he developed increasing back pain with radiating pain and burning numbness;
(f)    he had a week off work, returned to administration and supervising but could not get back to the tools and closed the business in August 2023. He has not worked since, and
(g)    he has been referred to Dr New, Dr Hsu and Dr Volschenk.
In terms of current complaints, the claimant reported pain between his shoulders and lower back pain which flares with activity. He has neck pain with intermittent numbness in two fingers of his hands.
Mr Cross said he swims and takes analgesics.
The claimant was reported to walk with a ponderous gait, hobbling with discomfort and with a stiff ankle and foot.
There was restricted movement, some pain in the shoulders when elevating his arms. Reflexes were present and normal, there was some wasting and weakness in his hands but no altered sensation. Mr Cross’s thoracic spine was said to be normal, and his lumbar spine examination did not reveal any signs of radiculopathy.
Medical Assessor Harrington assessed 5% WPI for cervical spine impairment on the basis of dysmetria and 10% WPI for the lumbar spine impairment based on “asymmetric loss of movement and symptoms of claudication in both legs”. Medical Assessor Harrington deducted 1% (one tenth) for pre-existing degenerative changes in the lumbar spine. The thoracic injury he found had resolved.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer submits the Medical Assessor erred in his apportionment of the lumbar spine by deducting one tenth (as is required in the workers compensation scheme) instead of fulfilling the method set out in cl 6.32 of the Guidelines which requires an assessment of the current impairment, an assessment of the pre-existing impairment and deducting the latter from the former. The insurer says the claimant’s lumbar spine impairment should have been assessed at 5% not 10% which would have resulted in an overall impairment of 10%.
The insurer says the Medical Assessor erred because Dr Hyde-Page who undertook an examination for the insurer found no restriction of movement two years earlier. The suggestion is that any restriction of motion found by Medical Assessor Harrington would therefore relate to the underlying condition and not the accident.
The insurer’s submissions filed with the original application for assessment include the following:
(a)    the claimant’s pre accident musculo-skeletal injuries and conditions started with back discomfort in May and June 2007 and left knee symptoms in 2008 and 2009 [13] - [18];
(b)    previous back complaints described as chronic in April 2013, left sciatic pain reported in May 2013 with radiology showing multilevel disc bulges, protrusions and degenerative changes. Medication was prescribed and there was a referral to an orthopaedic surgeon [19] – [22];
(c)    Dr Isaacs, orthopaedic surgeon in May 2013 reported many years of back pain with limited range of motion and functional limitations [23];
(d)    flare up of back pain and left sciatica in June 2014 and referral to a spine surgeon and an orthopaedic surgeon in July 2014 [24] – [25];
(e)    Dr Isaacs reported nerve root compression on the right at L4/5 and the left at L5/S1, a nerve block was given, and no further treatment occurred [25] – [28] and
(f) July 2019 a fall from a wall and injury to the left foot [29].
The insurer documents the records after the accident noting on 22 June 2020 imaging was done of the brain and it was noted there was right chest and neck/thoracic tenderness [30]. The insurer notes the discharge summary refers to “previous neck issues causing numbness to right 4^th to 5^th digits” and there was no mention of mid or lower spinal issues [32].
The insurer says that on 1 July 2020 when the claimant first attended on Dr Larkin, Mr Cross had new right sided sciatic pain and old left sided sciatica still present and tingling in the right upper limb [33] – [34].
The insurer refers to other evidence including reports from Dr New and entries in Dr Larkin’s notes relevant to causation [36] – [41].
The insurer is critical of the reports of Dr Rastogi, psychiatrist and Dr Dias, occupational physical neither of whom had the clinical notes from the claimant’s general practitioner (GP). The insurer says its two experts, Dr Vickery, psychiatrist and Dr Hyde-Page both had the claimant’s GP’s records [49] – [54].
The insurer submitted there was no impairment caused by the accident greater than 10%.

Claimant’s submissions

The claimant says that the apportionment of pre-existing impairment has not been done in accordance with the workers compensation legislation because there is no reference to that scheme’s legislation, the 5^th edition of the AMA Guides and so on. The only suggestion of the workers compensation methodology is the allowance of a 10% deduction. The claimant says this is allowed in the AMA 4 Guides because what those guides and cl 6.33 require is the determination of the contribution of the pre-existing impairment which has been done.
In terms of the neck injury, the claimant says when examined by Dr Dias there was dysmetria and there have been other findings by other examiners supporting a cervical spine injury.
The claimant’s original submissions filed in the bundle note the suddenness and severity of the accident (the other driver died) and that liability had been admitted [2] – [3].
The claimant notes the physical injuries included a fractured sternum, lacerations and soft tissue injuries. His main concern was his spine and his psychological injuries [4].
The claimant had worked as a builder and continued to work after the accident and suffers economic loss [5] – [7].
The claimant was said to be awaiting review and possible spinal surgery [8].

Procedural matters

The Panel issued directions to the parties on 27 June 2024 for bundles of documents. The insurer was to provide its bundle by 11 July 2024 and the claimant’s bundle was due by

25 July 2024.
The insurer’s bundle of 640 pages was received on 5 July 2024. The claimant’s bundle of 298 pages was received on 23 July 2024.
The Panel met on 7 August 2024. The Panel noted the claimant’s injuries included a fractured sternum (which had healed) and a laceration to the head (which had also healed) and that the claimant had ulnar and carpal tunnel issues which had been investigated but were not related to the accident.
The Panel noted in its report that the Panel would be assessing the cervical spine, thoracic spine and lumbar spine only. The parties were given the opportunity to respond to the matters raised in the report.
The Panel advised the claimant of the details of the medical examination and requested he take to the re-examination, all relevant and available radiological imaging including the

3 November 2020 MRI and any available images from before the accident.
No further submissions were received from the Panel other than the claimant’s application to admit late documents namely a report from Dr New, orthopaedic surgeon.
On 14 August 2024, Member Cassidy and Medical Assessor Oates were advised that Medical Assessor Stubbs had stood down from the Panel and the President had reconvened the Panel to include Medical Assessor Gorman.

REVIEW OF THE EVIDENCE

Introductory remarks

The claimant’s bundle includes submissions targeted more towards the claimant’s damages claim. The claimant has also included over 50 pages of a forensic accountant’s report and over 130 pages of financial documents. The Panel does not consider any of these documents relevant to the matters it has to decide and will not refer further to them.

Claim form and claim documents

The application for statutory benefits was made on 10 July 2020. In that form the claimant listed his injuries as fractured sternum, neck pain, lower back pain, lacerations to legs and face. He denied any previous CTP claims but did say, “I have experienced back and neck injuries for several years, however, they have been worse since the accident.”
Dr Lawson of the John Hunter Hospital completed the first certificate of fitness dated

25 June 2024. He diagnosed a non-displaced buckle fracture of the sternum. He noted the claimant had exploratory laparoscopy for a ruptured diaphragm and that the claimant had psychological distress from the car accident.
The claimant provided a statement on 1 June 2023.[5] He says:
(a)    he left school in 1978 [2] and started work in his father’s building business [3];
(b)    he continued to work with his father until 1995 then became a foreman and since 1998 ran his own building company [6] – [8];
(c)    he recounts the accident, notes the driver was driving erratically and had been pursued by the police [9];
(d)    he details his immediate treatment and later referrals and says his “lasting concern” was his back and neck injuries [10] – [17], and
(e)    Mr Cross documents his previous injuries noting he had previous back pain with flare ups of sciatica from time to time and which was manageable. He says he also had neck pain and stiffness while playing rugby league but since ceasing that sport his symptoms had resolved [18] – [20].
[5] Page 37 of the insurer’s bundle.

Pre-accident records

Mr Jones, physiotherapist wrote to Dr Larkin on 29 April 2013[6] about the claimant’s “chronic low back problem” with significant worsening including difficulty walking with pins and needles in his left foot. He had a flare up after two or three sessions. The claimant was reported struggling in bed or standing still.
[6] Page 288 of the insurer’s bundle.
On 7 May 2013, Dr Larkin referred the claimant to Dr Isaacs for opinion and management of left sided sciatica with a copy of the CT scan provided.[7]
[7] Page 289 of the insurer’s bundle.
Dr Isaacs wrote to Dr Larkin on 31 May 2013[8] reporting the claimant’s complaints of pain across the lower back radiating down the back of the left leg to the left foot. He diagnosed left sided sciatic nerve root irritation probably a result of the L4/5 disc lesion visible on the scan.
[8] Page 293 of the insurer’s bundle.
On 8 July 2014 the claimant was referred to Dr Hsu for a second opinion of the management of his left sided sciatica.[9] There is no report from Dr Hsu at this time.
[9] Page 298 of the insurer’s bundle.
There is a further letter from Dr Isaacs dated 5 September 2014[10] with pain across the lower back and radiating down the back of the left leg into the foot. The pain was getting worse and the claimant was “more of a supervisor rather than a manual worker”. There was altered sensation and weakness both in a L5/S1 dermatome and there was a positive sciatic stretch sign. Left ankle jerks on the left side were diminished. Hips were normal. An MRI was requested and a further review organised. Dr Isaacs wrote again on 18 September 2014. The claimant could not walk more than 50m and the MRI had been done showing an L5/S1 compression but that right sided L5/S1 nerve roots exited freely.
[10] Page 294 of the insurer’s bundle.
A nerve root block was done which gave minimal relief but the claimant was able to manage his pain so Dr Isaacs advised on 30 April 2015 to leave things alone for the time being.
The claimant’s GP’s notes have been produced and apart from a fall and foot injury in

July 2019 there are no other complaints of musculoskeletal issues, neck or back pain from 2015 until the time of the car accident.

Treating medical records and reports

The Panel notes the discharge summary from John Hunter Hospital says the claimant was restrained and that there was a “seatbelt sign across abdomen”, forehead laceration, possible fractures sternum and left high hemidiaphragm. The cervical spine was investigated and cleared. There is reference to “large amount of distress following accident”. The other driver was killed in the accident.
There is a letter from someone on Dr Cerdeira’s behalf to Dr Larkin dated 31 July 2020.[11] This confirms that on examination in hospital the claimant had a lacerated forehead which was stitched, a non-displaced sternal fracture and an elevated left hemidiaphragm investigated with diagnostic laparoscopic surgery but with no evidence of a hernia. Five weeks after discharge the claimant was reporting a tender epigastric port site and right leg neuropathy in a S1 neurotome distribution said to be on a background of long standing left sided pain. He notes no complaints of lower limb symptoms at the time of the admission after the accident.
[11] Page 324 of the insurer’s bundle.
Dr New, orthopaedic surgeon saw the claimant on 2 October 2020 on referral from Dr Larkin at Wynter Street Medical Centre. He reported the claimant had “quite debilitating pain in his right arm in a C7 nerve root distribution and both legs in the L5 nerve root distribution” and that he had debilitating back pain. He arranged further investigations and was to review the claimant again.[12]
[12] Page 333 of the insurer’s bundle.
On 22 January 2021 Dr New saw the claimant again and advised there was compression of his ulnar and carpal tunnel nerves, and he foresaw surgery. He wanted to do L4/5 and L5/S1 perineural nerve root blocks and wanted to discuss bilateral decompression laminectomy and neurolysis.

Dr Hsu, spine surgeon saw the claimant on 27 April 2021 on referral from Dr Larkin.[13] He noted “significant back and leg pain”, and the claimant was contemplating surgery due to his worsening leg and back pain. He organised an L3/4 epidural steroid injection and arranged for a further review. His detailed record at page 342 has a pre-accident history of arthritis and joint stiffness. The examination included the following:
(a)    no spinal tenderness on palpation;
(b)    decreased range of motion in flexion and extension;
(c)    grade 5 power in the lower limbs;
(d)    intact sensation to light touch;
(e)    equal and intact knee and ankle reflexes, and
(f)    negative nerve root tension signs.
[13] Page 341 of the insurer’s bundle.
Dr Hsu noted pathology at multiple levels but mostly at L3/4 and recommended epidural steroid injection followed by decompression surgery at that level if necessary.
Dr Volschenk wrote to Associate Professor Hansen, neurosurgeon on 1 June 2023.[14] He has a thorough history including the claimant’s 2014 attendances on Dr Isaacs and the continuing left sided low back pain but new right sided symptoms emerging after the accident. The claimant also had left sided lower cervical pain with paraesthesia in a C7 and C8 dermatomal pattern. The upper thoracic pain present between his shoulder blades “has now resolved”. Dr Volschenk reports that on examination “he has no neurology”.
[14] Page 382 of the insurer’s bundle.
On 15 September 2023 Dr Volschenk advised the claimant to give up alcohol due the development of peripheral neuropathy.
Dr Volschenk performed a bilateral L4-S1 medical branch block and reported to Dr Larkin on 10 August 2023.[15] The injection resulted in a 50% reduction in pain. A request was made to the insurer for radiofrequency neurotomy.
[15] Page 345 of the insurer’s bundle.
Associate Professor Hansen of Newcastle Brain and Spine wrote to Dr Larkin on 17 August 2023.[16] He advised that nerve conduction studies showed a mixed axonal and demyelinating neuropathy as well as significant foraminal stenosis in the lumbar spine and “some spondylosis” in the cervical spine. Professor Hansen noted in a report dated 9 May 2023 that the left-sided thigh pain and right-sided sciatica was “intermittent”.
[16] Page 375 of the insurer’s bundle.
Dr Volschenk wrote to Dr Larkin on 10 November 2023[17] after the medial branch blocks and radiofrequency neurotomy. Physiotherapy was helping but Amitriptyline had caused side effects. The claimant was still awaiting an appointment with a neurologist to discuss the peripheral neuropathy.
[17] Page 380 of the insurer’s bundle.
Mr Irvine of workplace physiotherapy wrote to Dr Larkin on 11 January 2024 upon the claimant commencing a pain management program. He advised the claimant demonstrated “chronic and mixed pain presentation of nociceptive and neuropathic qualities”. He considered there were “mechanical deficits and deconditioning” and C8 and S1 sensitisation distributions. The claimant declined further intervention.

Radiology

The claimant provided a copy of the MRI scan report of 3 November 2020. The clinical history was of pain. The conclusion in respect of the cervical spine was:
(a)    multilevel spondylitic changes;
(b)    on the right side, severe C3/4 and moderately severe C6/7 stenosis abutting the right C4 and C7 nerve roots, and
(c)    on the left side, severe C3/4 and C6/7 foraminal stenosis compressing the C4 and C7 nerve roots and moderate to severe foraminal stenosis at C4/5 and C5/6 abutting the exiting C5 and C6 nerve roots.
In the thoracic spine there was a small disc bulge at T9/10 with no neural compression.
In the lumbar spine there was:
(a)    multilevel degenerative disc and facet joint changes with endplate remodelling;
(b)    mild central canal stenosis at L1/2 and L2/3;
(c)    annular tear at L2/3;
(d)    moderately severe central canal stenosis at L3/4;
(e)    severe left L4/5 stenosis compressing the exiting left L4 nerve root, and
(f)    moderately severe left C3/4 and right L1/2 stenosis compressing the left L3 and right L1 nerve roots.

Medico-legal reports

Dr Dias provided a report to the claimant’s solicitors dated 1 February 2022. While he does not appear to have had the GP’s records, he did have a history of the claimant’s work including “heavy manual construction work” and of back pain since the age of 15.
The claimant gave Dr Dias a history that between 2015 and 2020 his lower back pain and left lower limb radicular symptoms gradually improved and stabilised with regular hydrotherapy and message therapy. He was careful of the activities at work but performed the majority of work. Dr Dias records (at page 7);
“By the time of the subject accident in June 2020, Mr Cross states that he was suffering from mild to moderate symptoms of lower back pain, stiffness and discomfort and intermittent left lower limb sciatic symptomatology. He did not suffer from significant right lower limb radicular symptomatology prior to the subject accident in June 2020.”
The claimant also disclosed neck pain and could not recall any specific treatment for his neck, thoracic spine sternum or abdomen.
The claimant complained to Dr Dias of ongoing pain, stiffness and discomfort in his cervical, thoracic and lumbar spine with right and left lower limb radicular symptoms and right upper limb symptoms.
Dr Dias diagnoses (at page 14 of his report):
(a)    an acute head injury with right forehead lacerations and continues to suffer from fatigue and cognitive deficits;
(b)    persistent aggravation of pre-existing degenerative spondylosis with persisting right C7 radiculopathy;
(c)    chronic thoracic spine pain;
(d)    persistent aggravation of pre-existing lumbar spondylosis with persisting L4 radiculopathy on both sides;
(e)    sternal fracture and abdominal wall injury which have resolved, and
(f)    chronic post traumatic right-sided ulnar neuritis (not caused by the accident).
He assessed impairment as follows:
(a)    closed head injury – unable to assess;
(b)    cervical spine – DRE category III (on the basis of C7 radiculopathy) sluggish reflexes and weakness of right elbow extension) - 15% with 0% pre-existing impairment;
(c)    lumbar spine – DRE category III (on the basis of L4 sensory loss and impaired reflexes) - 10% with 5% deducted due to previous impairment, and
(d)    sternum and abdomen – no assessable impairment.
Dr Dias combined 15% with 5% and arrived at 23% which the Panel notes is not accurate. According to the combined values chart at page 322 of AMA4, 15% combined with 5% gives a 19% WPI.
Dr Hyde-Page provided a report to the insurer’s solicitor dated 19 May 2022. He has a consistent history of the accident and early treatment.
Dr Hyde-Page records that the claimant has persistent pain between his shoulder blades which began a few weeks after the accident. Mr Cross had discomfort using his right shoulder and arm above shoulder level. The claimant reported persistent and sometimes severe low back pain and stiffness with left sided sciatica before the accident and right sided symptoms after the accident. He notes that surgery has been proposed for his lumbar spine and for carpal tunnel release but no cervical spine surgery.
The claimant provided a history of chronic lower back pain and some previous neck pain.
Dr Hyde-Page considered the numbness in the claimant’s fingers was due to ulnar nerve irritability rather than radiculopathy. He diagnosed cervical spine injury aggravating underlying cervical disease; soft tissue injury of the thoracic spine and lumbar spine injury aggravating longstanding chronic lumbar disc disease.
He assessed cervical spine WPI at 0% due to the absence of clinical findings. The thoracic spine was assessed at 0% on the basis of no findings. In the lumbar spine he assessed WPI at DRE category III or 10% from which 5% was deducted for pre-existing complaints.
He expressed the view the right ulnar neuritis was pre-existent and unrelated.
Dr Hyde-Page also commented, “I note that he has developed significant mental health issues since the motor accident.”
Dr Rastogi, psychiatrist provided a report to the claimant’s solicitors dated 27 April 2022. She has a history of the claimant having physical injuries and “struggling cognitively with short term memory loss, poor recall and feels overwhelmed”.
Dr Rastogi diagnosed a major depressive disorder related to his chronic pain and absence from work and loss of identity. She was of the view he had a poor prognosis. She did not provide an impairment assessment.
Dr Vickery, psychiatrist provided a report to the insurer dated 28 June 2022. He has a record of the claimant’s current physical symptoms (increased lower back and right sided sciatic pain). The claimant had difficulty remembering this which he put down to lack of sleep. He also reported difficulty concentrating because of pain.
He noted the claimant was having fortnightly counselling.
He noted the claimant’s frustration with his pain and inability to return to work.
Dr Vickery diagnosed an adjustment disorder with mixed anxiety and depressed mood. He diagnosed a 0% WPI.
Dr Walker, neurologist provided a report dated 18 April 2024 to the insurer’s solicitor. He has a consistent history of the accident noting a Glasgow coma scale (GCS) score at the accident scene of 15 out of 15.
He reviewed the radiological investigations:
(a)    in terms of the 2014 MRI which suggested possible compromise of the right L4 and left L4 and 5 nerve roots he said that “genuine nerve root compression is difficult to ‘diagnose’ with MRI scanning”. He noted the radiologist who conducts the study can suggest anatomical features that could cause compression, but the nerve root compression is diagnosed by symptoms such as loss of or reduced sensation, impairment of reflexes and weakness;
(b)    concerning the current radiology he said, “these widespread degenerative changes were clearly pre-existing before his accident.” He noted the July 2023 radiology which confirmed five previously mentioned nerve roots with two new ones in the cervical spine “indicating a natural progression of his spinal degenerative disease”;
(c)    he noted the brain MRI from November 2022 showing small vessel disease (age related and not related to the accident), and
(d)    the nerve conduction studies from May 2023 produced results consistent with medial nerve compression, ulnar nerve compression and mild sensory motor peripheral neuropathy which he did not believe was due to the accident. He considered these nerve abnormalities were “not uncommon” in workers in the building industry.
On examination Dr Walker found evidence of peripheral neuropathy due to the reduced ankle reflexes, decreased vibration sensation at the ankles and a reduced pin sensation in a sock type distribution of the feet. Knee reflexes were reduced but present. There was reflex asymmetry in the upper limbs and some slight weakness and wasting in the right interossei (a muscle in the hand).
Dr Walker considered the claimant sustained a sternal fracture and exacerbation of pre-existing lumbar and cervical degenerative disease and says:
“There has been a progression of his spinal disease since then related to the natural history of this problem together with a primary rheumatological problem. In addition, he has developed a peripheral neuropathy which I do not think is a major issue in his overall disability.”
In terms of diagnosis, Dr Walker:
(a)    was uncertain of the cause of the mild sensory peripheral neuropathy;
(b)    diagnosed right ulnar compressive neuropathy at the elbow;
(c)    found cervical degenerative disease with possible radiculopathy;
(d)    considered a primary rheumatological disorder such as gout may have been a possibility, and
(e)    diagnosed asymptomatic bilateral carpal tunnel compression.
He was asked by the insurer to comment on whether the claimant had demyelinating neuropathy. He responded saying he thought the claimant had axonal neuropathy together with multiple entrapment neuropathies. While the former was “most likely” related to alcohol consumption he said that neither were related to the accident in any event.
Dr Walker did not find an impairment “solely” caused by the accident. He considered the claimant’s symptoms would continue with the potential for worsening.
Dr New, orthopaedic surgeon has provided a report dated 15 August 2024 to the claimant’s solicitor following a medical legal examination on 19 July 2024.
The claimant gave a history of working as builder from 1983 to 1995 and as a foreman in a construction company from 1995 to 1998 before he returned to his own building company in work he described as “physically demanding”.
The claimant gave a consistent history of the accident and his immediate treatment including his referral to Dr New as a treating surgeon and a second opinion being obtained from Dr Hsu.
Dr New has a surgical pre-accident history of right calf surgery, septic arthritis in the right knee and left knee arthroscopy.
The claimant complained of spinal pain in all three regions, radicular pain in both arms in a C7/8 distribution and pain in both legs in an L5 distribution.
The claimant was said to have difficulty dressing, undressing and getting out of the chair.
In the neck there were pins and needles reported with disturbed sensation in the hands but full strength and negative Hoffmans sign. There were absent left reflexes (presumably all three) and mild hyperreflexia on the right side.
In the thoracic spine there was pain and marked restriction of movement.
In the lower back there was tenderness and referred pain and loss of motion. There were no neurological abnormalities other than dysesthesia in the L5 nerve root distribution.
Dr New reviewed the radiology which included a CT scan from 2013.
The Panel noted that Dr New diagnosed cervical, thoracic and lumbar spondylosis with radicular pain in both arms and legs but he did not appear to make findings that would support a diagnosis of lumbar radiculopathy (two of the signs required by the Guidelines were not present) and the findings in the upper limbs do not take into account the unrelated neurological conditions in the upper limbs.
He assessed DRE category III in the lumbar spine (10%) which he reduced by 10% for the pre-existing lumbar spine condition (acknowledged but he noted the claimant had held down a full-time job before the accident). He also assessed DRE category III (15% WPI) for the cervical spine.

RE-EXAMINATION FINDINGS

Mr Cross attended the Commission’s medical suites on 29 August 2024. He was unaccompanied and was assessed by Medical Assessor Gorman and Medical Assessor Oates on behalf of the Panel.

History

Pre-accident medical history and relevant personal details

Mr Cross was a self-employed builder until July 2023. He is married with four children and has eight grandchildren, and lives on the mid north coast of NSW.
He used to drink alcohol but ceased this in October 2023. He was advised by Dr Volschenk, pain management specialist, that he had a diagnosis of peripheral neuropathy manifesting as pins and needles in both feet and was advised to stop drinking as a result. He is not a cigarette smoker.
He lives on a 16-acre property and has six beef cattle and also has a vegetable garden.
After the motor vehicle accident, he was off work for four to five weeks and then performed only onsite checks and administrative duties.
In 2013, he had pain, numbness and pins and needles in the left buttock and lateral thigh to the knee. He had a cortisone injection to a lumbar intervertebral nerve root in 2014, but there was no benefit. He did hydrotherapy exercises consisting of treading water for 45 minutes, three times a week and he improved sufficiently to be able to carry his nail bag as a carpenter at work. He continued to work on site afterwards. However, numbness in the left lateral thigh continued, but he never had any symptoms below the knee that he recalls.
He also has arthritis in the finger joints before the accident which caused aching when he was driving.
He also recalls intermittent neck symptoms when playing football when he was younger. He had physiotherapy to the neck and back, and this settled down prior to the motor vehicle accident.

History of the motor accident

Mr Cross said on 22 June 2020, which was a Monday from memory, he was driving a van on the way home from work in a 90kmph speed zone. He came around a corner and was confronted by a car travelling on the wrong side of the road. This car was sliding sideways towards him. He did not have a chance to brake or steer out of the way, and the front of his vehicle slammed into the side of the oncoming vehicle and his van then spun around.
He had a seatbelt on. The airbags deployed. He was at first pinned inside the cab but subsequently freed himself and got out through a broken window. He was taken by ambulance to John Hunter Hospital. A raised hemi-diaphragm was suspected, and he had a laparoscopy. Thereafter, he was forbidden from lifting more than 5kg for four weeks, so he did light duties at work.
About five days after the motor vehicle accident, he noticed burning pain from the lower back, radiating to the right foot with pins and needles to the foot. He also noticed some soreness in the neck whilst he was still in hospital. When he came home, he saw a naturopath who performed gentle massage to the neck and back and administered pulsed electrical therapy.
The Panel notes the hospital record indicate multiple abrasions and lacerations to the face and the onset of chest pain, neck pain and right shoulder and arm pain. A fractured sternum was found. The raised left hemi-diaphragm was found to be pre-existing and not an acute injury resulting from the accident. He was discharged from hospital after three days.

History of symptoms and treatment following the motor accident

After discharge from hospital, the care of Mr Cross’s injuries passed to his GP and he had physiotherapy, hydrotherapy and analgesia.
He was off work for about a week or two. He then went back to supervising his building projects and did some administrative work but found returning to the tools was difficult because of his back pain. After changing from manual work to more administrative work, he had no neck symptoms but when he changed to administrative duties, he would feel a “stuck” sensation between the shoulder blades after sitting for one hour or so.
The business closed down in August 2023 and he has not worked since.
He was referred to Dr New, orthopaedic surgeon, in 2020 regarding persistent low back pain and neck pain, with tingling into both arms. Dr New told him he would eventually require surgery on the neck and/or the back. In the meantime, he was advised a cortisone injection, but Mr Cross did not undertake this at that time.
He then saw Dr Brian Hsu, neurosurgeon, for a second opinion. He too advised a cortisone injection, but at a different level than that advised by Dr New, but again Mr Cross did not proceed at that time.
He continued exercises in the pool and also did physiotherapy, but over the long-term it was not helping, and he felt he was going downhill. The physiotherapist suggested the installation of disc spacers.
He was referred to Dr Volschenk for pain management. It was then he had some nerve block injections to the neck and back. They were no help as far as the neck was concerned, but one of the lower back blocks did give him temporary benefit with relief of pain in the right lower back and hip. Dr Volschenk suggested implantation of a spinal cord stimulator and he was approved for this procedure by the insurer, but no follow-up has been arranged by Dr Volschenk since January 2024 and the claimant has not pursued it.
The Panel notes the claimant was to see a neurologist for his peripheral neuropathy but no report has been put before the Panel from a neurologist.

Details of any injuries or conditions sustained since the motor accident

The claimant has had no further injuries or developed further conditions after the accident.

Current Situation

Current symptoms

Mr Cross reports stabbing pain between the shoulder blades on sitting for a while and some soreness in the neck and the head, which is relieved by standing and moving about.
He has soreness in the lower back and told the Medical Assessors he had to stop three times on the four-hour drive from the mid north coast to Sydney today. There is also soreness across the hips and into both thighs when standing, more so on the right side than the left.
He says the left side has a more constant ache which is less intense and the same now as it was before the motor vehicle accident, however the right-side pain is more intense but only on an intermittent basis.
Mr Cross says he leans forward to walk to relieve the back discomfort. Going upstairs is difficult. He has pins and needles from the mid lateral right thigh down to the right foot lateral aspect to the little toe, with formication (a sense of ants crawling over the skin) over the right calf. There are twitches in the right calf and pins and needles in the right foot which have developed after the motor vehicle accident. These pins and needles are also present in the left foot, and he has been diagnosed by Dr Volschenk with peripheral neuropathy.
He has bilateral calf muscle cramps and can get these any time, and it is not related to activity. The right is slightly worse than the left. He can only lie supine in bed.
He also notices pins and needles in the ulnar two fingers of both hands, which wakes him up at night. This hand tingling came on months after the motor vehicle accident and he reported having had a nerve conduction study but says he does not know the result. He reports no symptoms of pins and needles or tingling in the arms.

Current and proposed treatment

Mr Cross says he takes no medications now, but he still attends physiotherapy.

Examination

General presentation

Mr Cross was of average to solid build with height 173cm and weight 84.3kg. Mr Cross is right-handed.
His gait was mildly antalgic. He was able to stand on the heels and toes. He had a stiff back when getting off the chair and on and off the examination couch.
He stood with a tilt to the right and there was a thoracic scoliosis convex to the left present.

Cervical spine (cervicothoracic)

The claimant’s cervical spine movements were measured three times and recorded as follows:
(a)    flexion and extension were both reduced to two-thirds of normal;
(b)    rotation was reduced three-quarters on both sides, and
(c)    lateral flexion was reduced to one-half normal on both sides.
There was no muscle guarding or spasm evident on examination. There was tenderness in the neck at the C3 to C4 level and centrally.
Reflexes showed normal right-sided jerks with a slight decrease in the left biceps jerk and supinator jerk, but normal triceps jerk. Power was normal in both upper extremities. Light touch sensation was decreased in the right lateral upper arm. Both ulnar forearms had normal sensation.
Pin prick testing revealed:
(a)    the left lateral forearm was reduced compared with the right side;
(b)    the upper arm was reduced on the left side, and
(c)    the 4th and 5th fingers on both left and right were reduced compared to the other digits.
Tinel’s sign was negative at both elbows over the ulnar nerves and at both wrists over the median nerves which indicates to the Medical Assessors no irritation of those nerves.
The partial sensory loss in the left upper extremity did not follow a specific cervical nerve root distribution because the upper arm and forearm hypoaesthesia was in a partial C6 distribution, but the finger hypoaesthesia in the left hand was in a partial C8 distribution. Similarly, the right upper arm hypoaesthesia suggested a partial C6 distribution, however the right hand hypoaesthesia was in a partial C8 distribution. Hence, it is the clinical judgment of the medical members of the Panel that neither upper extremity demonstrated a reproducible sensory loss anatomically localised to an appropriate spinal nerve root distribution.
The girth of the upper limbs was measured as follows:
(a) upper arm - right 31cm, left 31.5cm, and
(b) forearm girth; right 28cm, left 27.5cm. This appears consistent with right-hand dominance, although 0.5 cm difference in girths in the arms and forearms is not significant.
There was mid-scapular tenderness and catching, but range of movement of the shoulders was normal with complaint of a catch between the scapulae on elevation of the arms.
There were visible osteoarthritic changes at the interphalangeal joints of the fingers of both hands.

Thoracic spine

There was no guarding or spasm. While the claimant complained of pain between the scapulars at the examination, there were no non-verifiable radicular complaints (radiating pain, shooting pain).
There was no thoracic radiculopathy, with sensation intact over the entire trunk. Thoracic rotation was full range on both sides.

Lumbar spine

There was no guarding or spasm. There was no focal tenderness.
The claimant’s lumbar spine movements were measured three times and recorded as follows:
(a) flexion was full however, extension was two-thirds of normal, and
(b) lateral flexion was three-quarters of normal on both sides.
Power was measured and the right equalled the left. Reflexes were all present and of low amplitude but symmetrical. Plantar responses were both flexor.
Sensation was decreased to pin prick in the lateral and posterior of both legs but intact over the anterior legs, medial feet and lateral feet, with patchy loss over the medial and lateral feet indicative of peripheral neuropathy.
The girth of the lower limbs was measured as follows:
(a) thigh - right 43cm, left 43.5cm, and
(b) calf - right 40cm, left 41cm.
On supine straight leg raising the right equalled the left at 90° with negative stretch test. There was bilateral hallucis valgus present.

Comments on consistency

The claimant was pleasant and co-operative and there was no inconsistency with the formal examination when the claimant was informally observed and no inconsistency in measurement of movement during the examination.

Imaging

The following imaging scans and radiological studies were brought to the examination:
(a)    7 May 2013 – CT lumbar spine. History: left sided sciatica - marked narrowing of L4/5 disc space. Left L4/5 disc protrusion abutting against the nerve root.
(b)    9 September 2014 – MRI lumbar spine. History: left sciatica - multilevel mild central canal stenosis due predominantly to congenitally short pedicles. Right L4/5 lateral disc protrusion compresses right L4 nerve root. Left foraminal focal L5/S1 disc protrusion compressing the exiting left L5 nerve root in neural exit foramen and the descending left S1 nerve root in the lateral recess.
(c)    3 November 2020 – CT sternoclavicular joint (not relevant) and MRI three regions of spine – Cervical - multilevel cervical spondylosis with disc/osteophyte complexes causing severe right C3/4 and moderate C6/7 stenosis abutting the right C4 and C7 nerve roots. Severe left C3/4 and C6/7 foraminal stenosis compressing the exiting left C4 and C7 nerve roots, and moderate C4/5 and C5/6 foraminal stenosis abutting the exiting left C5 and C6 nerve roots. Thoracic – small T9/10 disc bulge. Lumbar – multilevel degenerative changes. Severe left L4/5 foraminal stenosis causing compression of exiting left L4 nerve root; moderate left L3/4 and right L1/2 stenosis compressing left L3 and right L1 nerve roots.
(d)    4 November 2020 – Bone scan with SPECT/CT – some focal uptake in lower sternum at fracture site. Widespread arthropathy in acromioclavicular joints, wrists, knees and severe osteoarthritis in hallux MTP joints bilaterally. Arthropathy left C4/5, left T1/2 and bilateral T4/5 facet joints. Endplate reactive changes at L5/S1.
The Medical Assessors viewed the films which were available and agreed with the contents of the reports supplied by the radiologists.

DIAGNOSIS, CAUSATION AND REASONS

The claimant was involved in a high-speed, T-bone collision where the other driver died. The claimant’s car hit the other car head on, and his airbags deployed. The vehicle was sufficiently deformed so that Mr Cross had to extricate himself from his car through a broken window.
The Panel is of the view that this mechanism of accident indicates that there were significant forces involved in the collision and forces sufficient to cause injury to all three levels of the claimant’s spine.
The medical evidence, in particular the contemporary hospital notes, the claimant’s history and the GP records support a finding that the claimant did sustain an injury to his cervical, thoracic and lumbar spine in the accident.
There is a known history of prior lumbar spine symptoms with radiating symptoms to the left lower extremity, but only to the level of the knee. There does not appear to be any previous history of right sided complaints. There was also a history of pre-existing symptoms affecting the cervical spine with radiating paraesthesia to the 4^th and 5^th fingers of both hands. There does not appear to be any pre-existing history of thoracic spine problems.
Pre-accident radiology confirms the presence of degenerative changes in the lumbar spine and post-accident radiology confirms degenerative changes in the cervical and thoracic spine. The Medical Assessors note these are to be expected, due to the claimant’s age and his longstanding occupation as a builder.
The Medical Assessors’ diagnosis is that the claimant has sustained an aggravation of the pre-existing, symptomatic, multi-level degenerative changes in his cervical and lumbar spines, and a soft tissue injury to the thoracic spine.

IMPAIRMENT ASSESSMENT

Spinal impairment assessment generally

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 6.111).
The spine is divided (cl 6.131) into three regions:
(a)    cervical (cervicothoracic in AMA 4);
(b)    thoracic (thoracolumbar in AMA 4), and
(c)    lumbar (lumbosacral in AMA 4).
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories and a number of indicia provided to guide Medical Assessors and other examiners in selecting the appropriate category (see table 6.7).
The first category is DRE category I which is selected if there are symptoms which may include pain.
The usual DRE category II category requires there to be:
(a)    pain with guarding or
(b)    non-uniform range of motion (dysmetria) or
(c)    non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
The usual DRE category III categorisation requires a finding of radiculopathy which is defined in cl 6.138 as:
“… the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …
(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.”
As radiculopathy is a symptom of injury to a nerve root, the two or more signs must be present and relate to the same nerve root.

Cervical spine

With respect to the cervical spine, the history given by Mr Cross and the examination revealed his neck is sore. As he has pain, he attracts at least a DRE category I classification.
The Panel notes Medical Assessor Harrington found dysmetria (asymmetric reduction of cervical spine movements) but when examined by the Medical Assessors of the Panel there was no dysmetria and there was no guarding.
While Mr Cross complained of symptoms in the fingers of both hands (tingling and pins and needles), the medical members of the Panel are not satisfied that these can be categorised as non-verifiable radicular complaints for the following reasons:
(a)    Mr Cross’s described symptoms affecting only the 4^th and 5^th fingers of both hands suggestive of a C8 nerve root injury;
(b)    however, he denied any symptoms of pain, tingling or pins and needles in any part of the forearm which would in the clinical judgment of the Medical Assessors be the dermatomal pattern expected for a C8 nerve root injury;
(c)    there is no correlation in the radiology of any C8 nerve root issue, and
(d)    there is a history of pre-accident symptomatology in the same fingers and the claimant has unrelated carpal tunnel issues and visible evidence of arthritis in the fingers which could cause symptoms similar to non-verifiable radicular symptoms.
The claimant does not therefore satisfy the criteria specified in the Guidelines for a DRE category II impairment at the time of the Panel’s examination.
In terms of a DRE category III impairment, the Panel notes that radiating pain or pain present in the upper limb may be a non-verifiable radicular symptom (relevant to a DRE category II), but it is not one of the five signs of radiculopathy required by cl 6.138 of the Guidelines for a DRE category III categorisation.
The Panel’s findings for each of the five criteria of radiculopathy are as follows:
(a)    loss or asymmetry of reflexes – this is satisfied as there were reduced left arm biceps and supinator reflexes. Right arm reflexes were normal;
(b)    positive nerve root tension signs – there were no nerve root tension signs evident on testing;
(c)    muscle atrophy and/or decreased limb circumference – there was a .5cm difference between the left and right forearms and upper arms which is not clinically significant in the judgment of the Medical Assessors;[18]
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – there was no loss or reduction of power, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution – the claimant’s left lateral (outside) forearm had reduced sensation to pinprick testing when compared to the right and the left lateral upper arm had decreased sensation suggestive of a C5 or C6 nerve root problem but there was no reduced sensation in the thumb which would complete and confirm a C6 radiculopathy. However, the reproducible sensory loss in the fourth and fifth fingers of both hands corresponds to different nerve root (C7 and C8) and there was no sensory loss in the palm or forearm to complete and confirm a C7 and or C8 radiculopathy. The Medical Assessors are of the view that these findings do not equate to a sign of radiculopathy from a particular nerve root injury. They were patchy responses and not isolated to a specific and complete nerve root pattern.
[18] According to table 6.8, a finding of muscle atrophy should be made if “the difference in circumference [is] 2 cm or greater in the thigh and 1 cm or greater in the arm, forearm or calf”.

The Panel notes that Dr New reported pain in a C7 nerve root distribution but found no neurological signs in the upper limb in 2020. In 2021 Dr New noted evidence of ulnar and carpal tunnel nerve compression but no radiculopathy. Dr Hyde-Page found, in 2022, numbness in the fingers which he considered due to ulnar nerve issues and not a spinal nerve root issue. Dr Volschenk in June 2023 noted pain and paraesthesia (numbness) in a C7 and C8 dermatomal pattern but “no neurology”. Dr New, in July 2024, found the claimant’s symptoms had progressed noting asymmetrical reflexes and numbness as well as abnormal touch sensation in the hands in a C7 and C8 distribution.
The Panel notes that, according to Dr Volschenk, the claimant was to see a neurologist, but there is no report from a treating or medico-legal neurologist relied on by the claimant. The only neurologist to provide an opinion in this case is Dr Walker for the insurer. Dr Walker was the first examiner to report the reflex asymmetry in the upper limbs, but his report does not support a finding of any of the other signs of radiculopathy apart from some mild wasting of the hand muscles, but he found no “proven radiculopathy”.
The Medical Assessors’ comment is that degenerative changes were present in the cervical spine before the accident, and these have been aggravated by the accident. The claimant’s signs and symptoms have varied over time and they have developed and increased which reflects the continued progression of the underlying degenerative condition at multiple levels of the cervical spine rather than any ongoing aggravation from the car accident.
The Panel is of the view that the impairment resulting from the claimant’s cervical spine injury should therefore be categorised as DRE category I, giving a 0% WPI.

Thoracic spine

The Panel notes that Dr Volschenk in June 2023 reports that Mr Cross’s upper thoracic pain present between his shoulder blades “has now resolved”. Medical Assessor Harrington also noted resolved symptoms in the thoracic spine.
The claimant reported to the medical members of the Panel that symptoms in his thoracic spine persist, however there was no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy found on examination. If the Panel were to accept that the claimant’s thoracic spine injury is continuing to cause symptoms and impairment, the Panel notes there is no evidence to place the claimant in any category higher than DRE category I which gives a 0% WPI for that injury. The Panel therefore considers it unnecessary to further consider causation of the claimant’s current thoracic spine symptoms.

Lumbar spine

Mr Cross complained of soreness in his back, hips and into his thighs.
There was no guarding but there was dysmetria in the flexion / extension plane of movement present on examination. There were complaints of pain radiating into the hips and both thighs more on the right than the left. The claimant said the left was now as it was before the accident, but the right side symptoms are more intense but on an intermittent basis.
The claimant satisfies the criteria for a DRE category II.
In terms of whether he has a DRE category III impairment, the Panel notes in respect of each of the five signs of radiculopathy in cl 6.138 of the Guidelines:
(a)    loss or asymmetry of reflexes – reflexes were equal and low which in the clinical judgment of the Medical Assessors reflects the claimant’s unrelated peripheral neuropathy and not a lumbosacral nerve root injury;
(b)    positive sciatic nerve root tension signs – there were no positive signs. Straight leg raising was achieved to 90 degrees and was equal with a negative stretch test;
(c)    muscle atrophy and/or decreased limb circumference – there was a mild difference in circumference between the two sides which in the Medical Assessors’ view is not clinically significant or in terms of the findings required by Table 6.8 of the Guidelines;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – there was no muscle weakness, power was normal in both lower limbs, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. The sensory symptoms affecting the claimant’s feet are, in the clinical judgment of the Medical Assessors the result of an unrelated peripheral neuropathy and do not follow a dermatomal distribution of sensory symptoms. They therefore do not qualify as one of the criteria for diagnosing radiculopathy.
DRE Category II of the lumbar spine gives 5% WPI. Medical Assessor Harrington had assessed the claimant as having a 10% impairment based on asymmetric loss of lumbar spine motion and “claudication”. The Medical Assessors note that claudication is leg pain caused by too little blood flow to the lower limbs and often indicates peripheral artery disease. Claudication is a symptom of an underlying condition but is not one of the five signs of radiculopathy set out in the guidelines. Medical Assessor Harrington does not report any definite signs of lumbar radiculopathy in his Medical Assessment Certificate.

With respect to the well-documented pre-accident history of lumbar spine pain, the Medical Assessors notes that pain alone attracts a DRE category I impairment. There is no evidence in the medical material available which documents asymmetric loss of range of motion or guarding or radiculopathy immediately before the accident.
There were left sided lower limb symptoms in 2013, 2014 and 2015 which would likely have led to a 5% WPI at that time on the basis of non-verifiable radicular symptoms – pain radiating across the buttock and down the back of the left leg to the left foot with pins and needles in the left foot. Dr Isaac in September 2014 documents diminished left ankle jerks and a positive sciatic stretch sign. These findings could have resulted in a 10% WPI finding as they are two of the five signs of radiculopathy.
However, from 2015 to 2020 there were no recorded complaints of back symptoms in the claimant’s GP or other records. The claimant’s history given at the re-examination was that his pain levels improved after 2015 but tha he had persistent numbness in the left lateral thigh but not below the knee and not in the right leg. This indicates to the Panel that at the time of the car accident any pre-accident nerve root irritation was minimal and limited, and the claimant’s immediate pre-accident impairment would be no higher than DRE Category I giving 0% WPI.
The claimant’s lumbar spine impairment resulting from the injury caused in the accident is therefore 5%.

CONCLUSION

The Panel notes that the claimant’s experts, Dr Dias and Dr New have assessed the claimant’s WPI at greater than 10% based on their findings when they examined the claimant. Clause 6.21 of the Guidelines provides that, “the evaluation should only consider the impairment as it is at the time of the assessment”.
The Medical Assessors have undertaken an examination of all three regions of the claimant’s spine and assessed his impairment as Mr Cross presented on the day and with all of the documentation provided by the parties at hand. Mr Cross’s WPI is:
(a)    cervical spine  DRE I             0%
(b)    thoracic spine  DRE I             0%
(c)    lumbar spine  DRE II            5%
As Medical Assessor Harrington found an impairment that was greater than 10% it follows that his certificate must be revoked.

[2024] NSWPICMP 662

18 September 2024