QBE Insurance (Australia) Limited v Genovese

[2023] NSWPICMP 160

DETERMINATION OF REVIEW PANEL

CITATION:

QBE Insurance (Australia) Limited v Genovese [2023] NSWPICMP 160

CLAIMANT:

Maria Genovese

INSURER:

QBE Insurance (Australia) Limited

REVIEW Panel

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Tai-Tak Wan

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

27 April 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and review of Medical Assessor Dixon’s assessment under section 7.26; the claimant was 72-years-old at the time of the accident and was knocked over by a forklift truck at Flemington Markets; she alleged injuries to her right shoulder, right wrist, right knee and right ankle in the accident; claimant’s worst injury was her right shoulder; claimant denied any previous right shoulder problems however GP records indicated there were left and right shoulder problems dating back many years with diagnoses of osteoarthritis and osteoporosis over the years; claimant’s left shoulder used as baseline due to similar findings in radiology; claimant’s wrist injury largely recovered but with similar findings in both the injured and uninjured wrists; whole person impairment (WPI) was limited to 1%, right knee said to give no issues however on testing pain was reproduced, and patella-femoral injury confirmed; right ankle had an impairment but medical records from hospital, photographs at time of injury and claim form suggested left ankle was injured and not the right; Held – claimant’s WPI greater than 10%; issues of causation, contralateral shoulders and proper assessment of lower limb injury; no real 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 of Medical Assessor Dixon dated 4 August 2022.

2.     Certifies that the claimant’s injuries caused by the accident have resulted in a whole person impairment of greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

1. On 6 October 2018 Mrs Genovese was pushing a trolley in Flemington Markets when a passing forklift caught the trolley, Mrs Genovese lost her balance and she fell on her right side.

2. At the time of the accident the claimant was close to 72 and she is now 74 years of age. She says she injured her right shoulder, right wrist, right knee and right ankle in the accident.

3. Mrs Genovese made a claim against QBE, the insurer of the forklift for both statutory benefits and common law damages.

4. A medical dispute arose in that claim concerning the degree of the claimant’s whole person impairment (WPI) and that dispute was referred to the Personal Injury Commission (the Commission) for determination. On 4 August 2022, Medical Assessor Dixon assessed the claimant as having a 14% WPI.

5. The insurer was dissatisfied with that determination and applied for a review and on 12 September 2022 a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and on 1 November 2022 the President convened this Panel to conduct the review.

LEGISLATIVE FRAMEWORK

General

1. Mrs Genovese’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

2. Under Part 4 of the MAI Act, the claimant is entitled to damages for certain economic losses and also for non-economic loss.

3. 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 2022 is $605,000.

4. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident 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 7.21. The current version of the Guidelines is Version 9 which is effective from November 2022.

5. In the light of the injuries for assessment, Chapter 3 of the AMA 4 Guides are relevant and the part of that chapter dealing with upper and lower extremity impairment.

Dispute resolution

1. 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 4.12 of the MAI Act.

2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon’s and the review of medical assessments by this Panel.[4]

   [4] Sections 7.20 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Dixon assessed the claimant on 3 August 2022 and issued his certificate the next day. Medical Assessor Dixon records that he was asked to assess:

   (a)    shoulder injury – soft tissue injury and probable rotator cuff injury to the right shoulder;

   (b)    ankle – lateral ligament injury to the right ankle;

   (c)    wrist injury – fracture of the ulnar styloid in the region of the right wrist, and

   (d)    knee injury – soft tissue contusion to the front of the right knee.

2. The Medical Assessor confirmed receipt of the application and reply and wrote, “no additional documents were provided”.

3. Medical Assessor Dixon then records the following history from the claimant:

   (a)    the claimant lives with her three adult children and two grandchildren and has difficulties with heavy household cleaning;

   (b)    she had high blood pressure and cholesterol before the accident, thyroid issues and osteoporosis;

   (c)    the Medical Assessor says “she had minor problems with her right shoulder” before the accident but could do most activities of daily living without issue;

   (d)    the claimant did not lose consciousness in the accident and was taken by ambulance to Concord Hospital;

   (e)    she had “contusions” to her right shoulder, right knee and right ankle and an X-ray revealed a fracture of the ulna styloid in her right wrist. She was put in a cast and discharged home, and

   (f)    she had three cortisone injections to the shoulder without sustained benefit and an ultrasound revealed a complete tear oof the supraspinatus confirmed by MRI.

4. In terms of current symptoms, the claimant complains of pain and stiffness in the right shoulder and wrist and pain behind the knee without locking or instability. Mrs Genovese also complained of right knee and right ankle pain and stiffness.

5. The Medical Assessor examined the claimant, recording the measurements of Mrs Genovese’s shoulder, elbow and wrist function. There was no neurological deficit in either upper limb and there was some weakness in the wrist with a full range of motion in the left elbow, wrist and both hands.

6. There was restricted motion in the right knee and right ankle.

7. Medical Assessor Dixon summarised the two medico-legal reports and the report of Dr Trantalis as well as the ultrasound reports.

8. The Medical Assessor diagnosed:

   (a)    post traumatic stiffness of the right shoulder with further rotator cuff tear or extension of the rotator cuff tear, with post traumatic stiffness;

   (b)    contusion to right wrist with a healed fracture of the ulnar styloid with mild post traumatic stiffness;

   (c)    post traumatic retro-patellar crepitus of the right knee following direct blow, and

   (d)    post traumatic stiffness of the right ankle and right subtalar joint due to ankle strain injury.

9. In terms of permanent impairment, he assessed WPI at 14% as follows:

   (a)    right shoulder – 7% less half for a pre-existing condition – 4%;

   (b)    right wrist – 4%;

   (c)    right knee – 2%, and

   (d)    right ankle – 4%.

ISSUES FOR DETERMINATION

Insurer’s submissions

1. The insurer’s submissions[5] argue that Medical Assessor Dixon failed to consider relevant material and failed to provide adequate reasons.

   [5] 30 August 2021 page 669 of the insurer’s bundle.

2. The insurer points to the Healthcare Imaging Records which included:

   (a)    X-ray right shoulder 1 December 2012 – degenerative changes in the acromioclavicular joint (AC);

   (b)    X-ray and CT scan lumbar spine 1 December 2012 – spondylitic changes and annular bulging;

   (c)    X-ray right knee joint 20 May 2014, and

   (d)    ultrasound and CT right shoulder 4 May 2018 (six months before the accident) – full thickness tear of the anterior supraspinatus tendon, moderate osteoarthritic changes in AC joint.

3. The insurer notes the Medical Assessor refers in his decision to there being no additional documents, but the above records were part of additional and “late” documents uploaded to the portal on 28 July and 12 December 2021.

4. The insurer says Medical Assessor Dixon described the claimant having “minor problems” before the accident and refers to post accident radiology only which the insurer submits raises a question about whether he had the additional documents.

5. The insurer also says that the Medical Assessor allowed 11% WPI for upper limb impairment less one half for pre-existing impairment without explaining why or how he came to that deduction.

Claimant’s submissions

1. The claimant says that there is no error on the part of Medical Assessor Dixon because the additional or late documents were not put before the Assessor and are not visible to the claimant’s solicitor on the Portal.

2. The claimant says there is no error in not explaining more fully the reasons for the deduction for pre-existing impairment again because the Medical Assessor did not have the pre-accident radiology.

3. Finally, the claimant says the insurer has failed to demonstrate how any error would be material to the outcome.

Insurer’s further submissions

1. The insurer’s further submissions deal with the application to admit late documents and the visibility of that application and the documents on the portal.

Procedural matters

1. The Panel met on 19 December 2022 to discuss the matter. The Panel noted the four injuries assessed by Medical Assessor Dixon which were before the Panel (right shoulder, right ankle, right wrist and right knee). The Panel considered the submissions and observed that the primary focus of the submissions was the right shoulder injury and causation in particular. The Panel invited the parties to consider s 7.25 of the MAI Act and attempt to narrow the issues.

2. The Panel asked the parties to confirm the dates of the claimant’s attendance at Strathfield Physiotherapy as the date stamps were faded and the dates could not be easily read by the Panel members.

3. The Panel requested a full copy of Dr Selim’s electronic records noting that the Panel had only his handwritten notes up to 1999.

Parties’ response

1. The insurer responded to the Panel’s request confirming the Panel’s views of the dates of the claimant attendances for treatment at Strathfield Physiotherapy in 2014.

2. The insurer set out its attempts to obtain copies of Dr Selim’s records dating back to January 2021. The insurer has been unable to obtain records having been advised there are none. The insurer agreed with the Panel that there seemed to be a gap in the records.

3. The claimant advised she too had attempted to obtain her notes but had been unsuccessful. The claimant did not respond to any of the other matters raised in the report from the Panel.

4. The Panel determined that all the injuries previously assessed were to be reassessed and that a re-examination would need to occur.

REVIEW OF THE EVIDENCE

Claim form and claim documents

1. The claimant’s application for personal injury benefits[6] form was signed by the claimant as true and correct and dated 11 July 2020. Ms Genovese says the forklift collided with her causing her injury.

   [6] The statutory benefits claim form is at page 1 of the claimant’s bundle. The damages clam form is dated 15 January 2021 and contains no additional information about the claim.

2. Ms Genovese describes her injuries as, “fractured right arm, right shoulder, left ankle, right knee”. She says she was taken to Concord Hospital and that she was not suffering an illness or injury affecting the same or similar parts of her body at the time of the accident.

3. The certificate of fitness from Dr Ong dated 10 July 2020[7] diagnosed a fractured right ulna and right rotator cuff tear. This document does not mention any injury to the lower limbs.

   [7] Page 129 of the claimant’s bundle (document AD4 in the Commission’s file).

4. In a letter to the insurer’s solicitors dated 1 March 2021,[8] the claimant’s solicitor advised the claimant sustained a “lateral ligament injury to left ankle” but did not identify and disabilities relating to that injury.

   [8] Page 4 of AD5 in the Commission’s file.

5. The claimant has provided photographs[9] described as photographs of her injuries. One shows her right hand wrapped in bandages. The next shows her left ankle, which appears to be swollen. The third photograph[10] shows the claimant’s left lower leg with significant bruising of the left ankle and lower leg.

   [9] Page 133 and following in the claimant’s bundle.

   [10] At page 135 of the claimant’s bundle.

Treating medical records and reports

1. The ambulance report[11] notes the claimant had fallen onto her right side and Ms Genovese was complaining of pain to her right shoulder and right knee.

   [11] Page 154 of the claimant’s bundle.

2. The claimant has provided the records from Concord Hospital from the day of the accident[12] which reports at [68]:

   (a)    a fall onto her right side with pain “in right shoulder, wrist, knee and left ankle”;

   (b)    there was no obvious deformity of the right shoulder with full passive range of motion but reduced active abduction to 60 degrees and flexion to 90 degrees and she was tender over the joint line with no clavicle pain;

   (c)    right wrist – full range of motion, pain on supination, no elbow pain and no pain over the head of the radius but slight pain on the ulnar aspect. Grip strength was 5 out of 5, sensation was intact;

   (d)    left ankle – some swelling noted anterior and superior to the lateral malleolus. Full range of ankle joint motion was recorded with power recorded at 5 out of 5;

   (e)    X-ray of the right wrist was said to show a non-displaced ulnar fracture and the X-ray of the right shoulder showed no abnormality, and

   (f)    the claimant was discharged home with a back slab and advice to follow up in the fracture clinic and take regular analgesia. She was also advised if her shoulder pain was not improving to see her general practitioner (GP) for assessment of a rotator cuff injury.

   [12] Page 65 of the claimant’s bundle.

3. The Panel has been provided with records from Dr Ong’s practice (MyHealth Medical Centre) and these records include Dr Selim’s handwritten notes from the mid to late 1990s but no records for the current century, handwritten or electronic.

4. The insurer advised the Panel[13] of the attempts made to obtain Dr Selim’s records and has provided a letter from Dr Selim advising that her records were transferred to “another doctor in Strathfield” and that she no longer had copies of any records. There is therefore a gap in the notes although there are copies of reports from imaging which suggest that before the accident, the claimant has osteoporosis in the lumbar spine, is osteopenic in both femurs and had previous arthritic complains in her hands as well as shoulder problems.

   [13] Document AD5 pages 1 and 2.

5. The insurer has provided[14] a medical chronology which includes references to the handwritten notes and the radiology which the Panel is satisfied correlates to the source documents. This includes:

   [14] At page 27 of document AD5.

   (a)    3 March 1994 – letter from Dr Portek Rheumatologist to Dr Selim. The clamant had complained of a three-year history of discomfort in the small joints of her hands particularly on the right with right shoulder pain and cervical discomfort on the right. She had swelling and weather changes altered her symptoms. She also complained of “early morning stiffness in her right foot on walking”. She was waking at night from lumbar pain and stiffness and had cervical and lumbar hypomobility. Dr Portek considered her symptoms were related to cervical hypomobility but did not suggest further investigations at that stage. There was a related CT of the cervical spine and a letter of 29 March from Dr Portek suggested the claimant had improved with physiotherapy and exercise.

   (b)    30 April 1999 – left shoulder and lumbar spine CT scans. While the left shoulder was reported as normal, there was a minor posterior disc protrusion identified at L4/5.

   (c)    16 March 2000 – right 5^th metatarsal (foot) fracture after fall (inversion injury) two weeks previously. The claimant[15] had a painful and swollen right foot. She was followed upon 11 May 2000 at the outpatients fracture clinic with full range of motion in the ankle and foot although there were complaints of stiffness in the toes.

   [15] Document AD3 page 610.

   (d)    12 September 2001 – letter Dr Woo, orthopaedic surgeon to Dr Selim[16] concerning the claimant’s left foot pain which she had for two months. Range of motion was normal, but a bone scan showed a stress fracture to the second metatarsal and synovitis in the first and second.

   [16] AD3 p 159.

   (e)    21 October 2009 – X-ray of right foot due to heel pain. The report suggests a calcaneal spur was developing along with a minimal bunion.

   (f)    31 August 2012 – X-ray right shoulder and hips – minimal degenerative changes in the glenohumeral and AC joints. Minimal degenerative changes in the hips.

   (g)    1 December 2012 – X-ray both hips, lumbar spine X-ray and CT scan. Early osteoarthritis in the hips, degenerative changes and annular bulging at various levels in the lumbo-sacral spine.

   (h)    20 May 2014 – X-ray and CT scan of right knee with no significant abnormalities identified but some minor osteoporosis.

   (i)    18 November 2014 – cervical spine MRI[17] with a clinical history of “pain neck and shoulder. Cervical radiculopathy.” There were significant changes at the C4/5 level with right sided C5 foraminal stenosis.

   [17] Page 208 of the claimant’s bundle.

   (j)    24 November 2014 – primary care program for physiotherapy and physiotherapy notes suggesting neck and pain radiating down the right arm.[18]

   [18] See report 9 January 2015 page 110 of the insurer’s bundle.

   (k)    9 January 2015 – letter from Strathfield Physiotherapy to Dr Selim referring to ongoing neck pain present for six months when first seen on 26 November 2014. The claimant had restricted movement and complained of pain radiating over her right arm. Records of the physiotherapy practice suggest the claimant had physiotherapy in Burwood previously and at the first attendance there is a reference to “hard to lift right arm up”. Neck flexion, rotation and lifting was said to aggravate the claimant’s pain. There was right shoulder joint pain with movement on 1 December and on 8 December the right shoulder pain was said to be “on /off now”.

   (l)    4 May 2018 – ultrasound and CT scan right shoulder with a clinical background of “pain in right shoulder with difficulty in movement. [Possibly] needs injection”. The result of the ultrasound was that there was a full thickness tear of anterior supraspinatus tendon and calcific tendinosis of the subscapularis tendon with AC joint osteoarthritis. Also, the CT scan showed AC joint osteoarthritis with small reactive degenerative changes.

   (m)     23 October 2018 – X-ray of right shoulder with clinical history of potential humerus fracture revealing no fracture or dislocation but the presence of osteoarthritis at the AC joint.

   (n)    20 November 2018 – ultrasound right shoulder[19] – chronic complete supraspinatus tear with muscle atrophy, tendinitis, full thickness infraspinatus tear, subacromial bursitis and impingement and degenerative osteoarthritis of the AC joint with synovitis.

   [19] Page 17 of the insurer’s bundle.

   (o)    14 December 2018 – ultrasound guided subacromial sub deltoid right shoulder injection with some relief of symptoms.

   (p)    11 March 2019 – Best of Care Physiotherapy practice letter to Dr Ong – right shoulder pain following a fall and she is reporting left shoulder pain due to overuse of the right shoulder.

   (q)    18 March 2019 – letter John Trantalis to Dr Ong[20] has a records of “minor problems” with the claimant’s shoulder before a “massive injury in October 2018 when she was hit by a forklift” and she fell. Since then, she has been unable to lift her arm above shoulder level and had a lot of pain which was waking her from sleep. He requested MRIs and CT scans. The claimant’s new patient form completed on the same day identified symptoms of pain, loss of function and weakness for five months since an accident on 6 October 2018.

   (r)    29 June 2019 – MRI Right shoulder – supraspinatus full thickness tear, tendinosis subscapularis, biceps head tendinosis, SLAP tear, humeral head chondrosis, glenohumeral joint effusion, AC joint arthritis.

   (s)    19 July 2019 – left shoulder ultrasound due to “rotator cuff syndrome” which revealed a complete tear of the supraspinatus tendon (“favoured to be long standing”), tendinosis and subacromial / subdeltoid bursitis.

   (t)    22 July 2019 – left shoulder ultrasound guided injection. After the procedure the pain scale had dropped from eight out of ten to zero.

   (u)    19 August 2019 – letter Dr Trantalis to Dr Ong[21] advising that the MRI demonstrates a “massive tear” involving the supraspinatus and infraspinatus. He thought rotator cuff tear would not be successful. He advised total shoulder replacement or conservative measures including physiotherapy, analgesics and cortisone along with modification of activities.

   (v)    22 October 2019 – right shoulder ultrasound guided steroid injection. Pain scale after the procedure was unchanged.

   (w)   14 July 2020 – Best of Care Physiotherapy letter to Dr Ong – left shoulder pain and restricted range of motion with positive impingement test.

   (x)    7 September 2020 – right shoulder injection under ultrasound (pain score before the procedure was 8 out of 10and after, zero).

   [20] Page 54 claimant’s bundle.

   [21] Page 53 claimant’s bundle.

1. The claimant had five physiotherapy treatments in 2014 for her neck and right shoulder. The dates of treatment were 26 November, 28 November, 1, 8 and 12 December 2014. On 28 November 2014 is a note “hard to lift right arm up”. Sleeping was OK but it was hard to get to sleep. On 8 December 2014 the right shoulder pain was said to be “on /off now”. The other records are hard to read and are handwritten.

Medico-legal reports

Claimant’s medico-legal reports

1. The claimant qualified Dr Bodel to examine the claimant which he did on 26 June 2020, and he has provided a report of the same date. He says he reviewed all the documentation but did not list or otherwise provide details of the material provided.

2. Dr Bodel has a history of the claimant returning an empty shopping trolley and the forklift catching the trolley causing the claimant to lose balance and fall.

3. Dr Bodel has a history of hypertension and raised cholesterol and he says there were no previous claims or injuries. The Panel notes in particular that Dr Bodel does not have a history of any previous shoulder problems.

4. He documents the following complaints:

   (a)    continuing pain and stiffness in the right shoulder;

   (b)    inability to push, pull, lift or use the right arm overhead;

   (c)    wakes from sleep if she rolls on her right side;

   (d)    pain, stiffness and weakness of grip strength in the right wrist and hand;

   (e)    anteromedial knee pain worsened by kneeling, squatting or going up and down stairs, and

   (f)    the left ankle has recovered.

5. On examination the claimant had:

   (a)    good range of neck movements;

   (b)    tenderness at the front of the right shoulder in the area of the rotator cuff;

   (c)    restrictions in both right and left shoulder motion (the measurements are included in the Appendix to these reasons);

   (d)    no restriction of movement in the elbow or hand on either side but minor restriction of movement in the wrist motion on the right;

   (e)    retropatellar crepitus and slight restriction of knee movement, and

   (f)    very slight restriction of left ankle movement.

6. Dr Bodel accepts the treating doctor’s diagnosis of a “massive” rotator cuff injury as a result of the fall suggesting she had some chronic features but was “asymptomatic” before the fall and he notes a ligament left ankle injury, right knee contusion and the wrist fracture. He suggests the right shoulder injury is the most troublesome.

7. No WPI assessment by Dr Bodel has been provided.

8. Ms Hildebrand occupational therapist has provided a report dated 25 August 2020 concerning the claimant’s domestic care and assistance needs.

9. She took a history from the claimant of having no significant medical conditions other than “a bit of arthritis” in her fingers.

10. Ms Hildebrand notes the claimant’s left ankle had “mostly resolved” and that there was right knee stiffness and pain. There is no mention (page 33) of the wrist fracture. The claimant’s main problem was the right shoulder with impairment of her functional ability to undertake her pre-accident domestic duties.

Insurer’s medico-legal reports

1. The insurer arranged for the claimant to be seen by Associate Professor[22] Shatwell (orthopaedic surgeon) and his report 26 April 2021 is before the Panel.

   [22] For ease of reference, and without meaning to disrespect his academic position, the Panel will refer to him as Doctor Shatwell.

2. He has a consistent history from the claimant of the accident and the injuries noting the claimant had four weeks in plaster and did not injure her head in the accident.

3. He reports that the claimant did not complain of right wrist symptoms at the examination and her right leg injuries “seem to have settled down satisfactorily”. The claimant’s main problem was with her right shoulder.

4. He comments on the 20 November 2018 ultrasound of the claimant’s right shoulder:

   “In their report they noted that there was a complete tear of the supraspinatus tendon with muscle atrophy reflecting a tear which had occurred many months or years before the investigation was performed. There was also a full thickness tear superiorly in the infraspinatus tendon measuring 13mm x 10mm.”

5. Dr Shatwell notes the claimant has chronic medical problems including osteoporosis, high blood pressure and raised cholesterol.

6. He takes a history from her that “she cannot lift heavy pans because of her right shoulder problems. She also described similar symptoms in her left shoulder which have been troublesome over the years”, and she thought her left shoulder had deteriorated because she is using her left arm more because of the troubles with her right arm.

7. On examination he noted wasting of the upper limbs which was symmetrical, reduced grip strength and minor arthritic change in the small joints of the hands.

8. His measurements for shoulder motion are recorded in the Appendix to these reasons.

9. He noted Mrs Genovese had an ultrasound scan of the right shoulder on 2 May 2018 because of difficulty moving the shoulder and in November 2014 physiotherapy notes record she had difficulty lifting the right arm because of pain in the deltoid and upper arm.

10. He refers to the claimant’s “extensive file” and right shoulder problems dating back to 1994 and left shoulder problems from 1999.

11. He diagnosed “bilateral degenerative change in her rotator cuffs which is constitutional and of longstanding. Symptoms go back at least 20 years …” Further, he says he thought there was no whole person impairment related to the accident and a potential minor soft tissue injury.

12. Associate Professor Shatwell concludes with:

    “The persistent symptoms in the right shoulder are now totally due to the underlying, longstanding degenerative rotator cuff disease which has been a progressive problem over many years”.

RE-EXAMINATION FINDINGS

1. Error! Bookmark not defined.Mrs Genovese attended the medical suites of the Commission on 20 March 2023.

2. The Commission was advised, shortly before the examination that the Italian interpreter arranged by the Commission was unable to attend. As the claimant’s son was present, assisting his mother, he offered to translate if necessary however when this was put to QBE, the insurer objected to this course of action.

3. The claimant’s solicitor was then contacted and the Panel was advised his client was able to communicate well in the English language. Due to the claimant’s age, the length of time the proceedings had been on foot, the parties were advised the matter would proceed in the absence of the interpreter, subject to the Medical Assessor being satisfied that there were no communication difficulties.

4. Medical Assessor Couch advised the other Panel members after the examination that the claimant’s command of the English language was excellent. There were no difficulties in him understanding the claimant and the claimant appeared to understand all of his questions answering appropriately and following requests and directions during the examination without difficulty. His advice to the Panel was that there was no difficulty in communication during the assessment.

5. Mrs Genovese is a generally healthy 76-year-old woman who reports coping with all her normal daily activities to her satisfaction prior to being knocked over, four and a half years ago when a forklift hit her shopping trolley.

Medical history and relevant personal details

1. Mrs Genovese emigrated to Australia from southern Italy at the age of 22. She was already married with one child. She completed primary school with normal literacy in Italian and she described normal numeracy. She described good spoken English, and she can read English but is not so good at writing in English.

2. She said that on first arriving in Australia, she had worked as a factory process worker, making small metal items. Her husband had a good job in construction, and she subsequently devoted herself to family duties. She has three sons, seven grandchildren and two great-grandchildren.

3. Medical Assessor Dixon had taken a history from the claimant of previous “minor problems with her right shoulder before the subject injury”. When asked about this, Mrs Genovese denied any actual shoulder symptoms or problems in either shoulder before the accident. She said that she had some symptoms in her neck, referring to “cervical” spine. She denied having any imaging of the right shoulder or injections to it before the accident. She added that she could climb a ladder and clean the tops of shelves before the accident. She emphasised that before the accident she could cope with all the housework, stating “before I did so many things – cooked weekly for the family, made pasta …”

History of the motor accident

1. Mrs Genovese confirmed the history of the accident at Flemington Markets on 6 October 2018. She had just finished shopping with a friend, who was sitting in the car. She was returning her empty trolley and it was raining. A forklift suddenly turned and struck her shopping trolley, which was damaged. In turn, the trolley knocked her over and she landed on her right shoulder and side. She confirmed that she fell on her right side not her left side.

2. Bystanders helped her up and sat her down to rest, a first-aid officer attended, and an ambulance was called.

History of symptoms and treatment following the motor accident

1. Mrs Genovese was taken by ambulance to Concord Hospital. Documented injuries included tenderness and markedly reduced abduction (60 degrees) and flexion (90 degrees) of the right shoulder, pain on supination of the right wrist, slight bruising below the patella of the right knee, and swelling was noted over the lateral left ankle.
   X-ray at the hospital showed a non-displaced ulnar styloid fracture of the right wrist. She was discharged home with a back-slab plaster for the wrist and a sling.

2. Because of persistent symptoms in her right shoulder, Mrs Genovese had come under the care of Dr John Trantalis, orthopaedic surgeon. In his second letter to the GP, dated 19 August 2019, Dr Trantalis stated that MRI of the shoulder “demonstrates a massive tear involving supraspinatus tendon and infraspinatus with retraction of the tendon edge and quite significant fatty change, particularly of the infraspinatus but also in supraspinatus.” He went on to state that with these findings, attempted rotator cuff repair was unlikely to be successful, and suggested the alternatives of ongoing conservative treatment or right reverse total shoulder arthroplasty. Mrs Genovese said that she had discussed possible surgery with her family. Her husband had encouraged her to proceed but to date she had preferred not to.

3. Mrs Genovese denied any further injuries since the accident.

Current symptoms

1. When asked what body area currently bothered her most, Mrs Genovese said that this was definitely her right shoulder. She described persistent symptoms in the right shoulder, ever since the subject accident with marked restriction of activities and sleep disturbance.

2. Mrs Genovese was focussed on her right shoulder injury and this is a major concern to her due to its impact on her activities of daily living. She did not present as being pre-occupied or greater concerned with the other parts of her body injured in the accident.

3. She described her symptoms, and the other injured parts of her body in more detail as follows:

Right shoulder

1. Mrs Genovese pointed quite precisely to the anterior glenohumeral joint. There is constant pain in this area, and she sometimes sits with her elbow resting on a pillow for support to relieve it. She has persistent restriction of range of movement and shoulder pain increases with any right upper limb use. For example, she said that she needs to rest her elbow to take the weight off the shoulder while peeling potatoes in the kitchen. She cannot lie on her right side in bed and finds it difficult to get comfortable.

2. Her right shoulder pain wakes her between two and five times per night and she is not getting enough sleep. She finds it too painful to pull up her bedclothes with her right hand and has to use the left instead. She finds it difficult to reach her hair with her right hand and has to use her left hand or a bidet for toileting purposes. She recalled an episode where she tried to save her great-granddaughter from falling and the sudden movement was very painful.

Right wrist

1. Mrs Genovese said that the wrist feels stiff but is only sore when the weather changes. She also described some pins and needles in the ulnar three fingers of the right hand.

Right knee

1. Mrs Genovese denied current symptoms in the knees, stating “no, I’m alright in the knee”.

Right ankle

1. Mrs Genovese described some pain in the right ankle. This occurs mainly when walking; she described it as both over the lateral and medial aspects. The ankle swells at times but does not give way. She goes for a walk around the block most mornings, but never runs.

Left ankle and left shoulder

1. The claimant was asked to identify the source of her current symptoms including pain. She did not volunteer that she had any pain or issues with her left ankle and left shoulder.

Present activities

1. Mrs Genovese said that she is quite limited now in her housework and this upsets her. Her husband helps to some extent and does a little cooking. She also gets help from family members, including her grandchildren.

2. Mrs Genovese demonstrated how she would use a broom to sweep the floor occasionally, using an unusual action and keeping her right elbow by her side to minimise shoulder movement. She is unable to do things such as cleaning windows or mirrors. She now only cooks simple meals for herself and husband.

3. When shopping, she goes with her husband – she directs him and he picks items off the shelves and puts them in the trolley. Her son and daughter-in-law also do some shopping for them. Mrs Genovese does not drive. She complained that she used to have a beautiful garden but is no longer able to look after it.

4. Mrs Genovese said that she takes two Panadol Osteo twice a day. She tried the anti-inflammatory Mobic but stopped because of gastrointestinal side effects. She also takes medication for her blood pressure.

Physical examination

1. Mrs Genovese presented as a sensible, intelligent woman who spoke good, although accented English. Communication was completely adequate in English. She was clearly upset about the accident, its sequelae and her current state, but there was no evidence of exaggeration or dramatisation of symptoms. Medical Assessor Couch noted that in fact her presentation suggested a fair degree of pain tolerance.

2. She was fully cooperative and showed good effort throughout with no abnormal pain behaviours or self-limitation of movement.

3. Her height was 150cm and she weighed 69kg (which gives a body mass of 30.6). Posture and gait were within normal limits.

4. She was able to remove a loose top, leaving her bra on, for examination of her shoulders. She was able to climb on and off the examination couch for examination of the lower limbs. This was consistent with the formal part of the examination.

Upper extremities

1. Mrs Genoese’s hands were clean and soft with no callouses. Grip strength was strong in the left hand but was moderately reduced on the right. Mrs Genovese said that she did not really know why this was the case, although she reported some right shoulder pain whilst bracing the arm during grip testing. Both upper arms measured 31cm in circumference, the right (dominant) forearm 26cm, the left 25.5cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical.

2. There was no obvious muscle wasting in the shoulder girdles for a woman of her age and body shape (noting moderately increased subcutaneous fat).

3. In the wrists, Ms Genovese described slight tenderness to palpation over the right ulnar styloid, but not on the left. Active range of movement of the wrists was measured carefully with a goniometer with repetition and included in the table below with the corresponding upper extremity impairment (UEI). Pronation and supination of the forearms, which involves both the elbow and wrist joints, is included here.

Normal	Right	Left
Flexion	60 degrees	40° (3% UEI)	40° (3% UEI)
Extension	60 degrees	40° (4% UEI)	40° (4% UEI)
Ulnar deviation	30 degrees	30° (0% UEI)	30° (0% UEI)
Radial deviation	20 degrees	20° (0% UEI)	20° (0% UEI)
Pronation	80 degrees	90° (0% UEI)	90° (0% UEI)
Supination	80 degrees	50° (1% UEI)	70° (0% UEI)

1. Tinel’s provocation test for carpal tunnel syndrome was positive at the right wrist but negative at the left. Phalen’s sign was negative bilaterally. There was no wasting of intrinsic muscles and light touch was preserved in the right hand. There was no objective weakness in any of the intrinsic muscles of the right hand although effort was reduced (the clinical impression was of mild right carpal tunnel syndrome without objective neurological deficit).

2. On palpation, Ms Genovese described moderate tenderness over the anterior aspect of the right humeral head and lesser tenderness laterally. In the left shoulder there was only minimal tenderness over the lateral humeral head.

3. Shoulder motion was measured three times with a goniometer and was consistent throughout the assessment. The measurements are provided below with the associated UEI.

Normal	Right	Left
Flexion	180	60° (8% UEI)	180° (0% UEI)
Extension	50	30° (1% UEI)	40° (1% UEI)
Abduction	180	50° (6% UEI)	120° (3% UEI)
Adduction	50	10° (1% UEI)	30° (1% UEI)
External Rotation	90	60° (0% UEI)	100° (0% UEI)
Internal Rotation	90	40° (3% UEI)	80° (0% UEI)
Total UEI		19%	5%

1. There was marked restriction in the right shoulder, and it was noted that Ms Genovese automatically tried to assist the right upper limb with her left hand – the measurements tabulated were of movements that were unassisted.

2. Power of all resisted right shoulder movements was markedly reduced, especially abduction and external rotation.

3. In contrast, power of all movements of the left shoulder was within normal limits for a woman of the claimant’s age and impingement signs were negative on the left.

Lower limbs

1. Both knees measured equally in girth at 42.5cm. The left knee was entirely normal with the range of motion from 0 to 120 degrees without pain or palpable crepitus. Ligaments were all clinically intact. There was no patellofemoral tenderness and Clarke’s apprehension test for patellofemoral pain was negative.

2. The right knee also showed an acceptable range of motion from 0 to 120 degrees but was accompanied by slight palpable patellofemoral crepitus. Ligaments were all clinically intact. There was slight tenderness on palpation over the anterior right knee. Some pain could be reproduced on patellofemoral grinding and Clarke’s apprehension test was positive. The clinical impression was of slight but persistent right patellofemoral irritability and crepitus on the background of a previous direct blow to the knee.

3. The right ankle measured 26cm around the malleoli and the left 25.5cm. The left ankle was not tender at all but in the right, she reported moderate tenderness laterally and slight tenderness medially.

4. The range of motion of both the ankle and hindfoot was measured three times with a goniometer and was consistent throughout the assessment. The measurements are provided below with the associated WPI.

Normal	Right	Left
Ankle plantar flexion	> 20 degrees	30° (0% WPI)	30° (0% WPI)
Ankle dorsiflexion	> 10 degrees	10° (3% WPI)	20° (0% WPI)
Hindfoot inversion	> 20 degrees	20° (1% WPI)	40° (0% WPI)
Hindfoot eversion	> 10 degrees	0° (1% WPI)	10° (1% WPI)

1. As noted above, gait was within normal limits. In bare feet, Ms Genovese was able to take a few steps, first with weight on the balls of her feet and heels off the floor, and then with weight on her heels with forefeet off the floor (although she only raised heels and then toes slightly off the floor during these manoeuvres). Without using hand support, she was only able to perform about a quarter range of a normal squat before stopping and recovering.

ASSESSMENT OF INJURIES AND IMPAIRMENT

Evaluation of the evidence

1. The claimant attended the emergency department of Concord Hospital saying she fell on her right side. Concord Hospital has a record of amongst other injuries a left ankle injury. The claimant attended Dr Ong on 19 November 2018 reporting a fall to her left side and injury to her left ankle. This indicates, in the Panel’s view, an error or an assumption made by Dr Ong that is incorrect.

2. The claimant denied any previous shoulder problems at all before the accident.

3. Dr Bodel has no history of previous problems and may not have had the pre-accident records. Ms Hildebrand has a history of “a bit of arthritis” before the accident. The claimant reported to Dr Shatwell previous left shoulder symptoms made worse because of her overuse of it due to the accident-related problems with her right arm and shoulder. Medical Assessor Dixon has a report of “minor” right shoulder problems before the accident.

4. The records the Panel does have from her pre-accident GP show referrals for radiology of her left shoulder (1999) and right shoulder (2012) before the accident and there would have been consultations for right shoulder symptoms in November/December 2014 resulting in a referral for physiotherapy and then referral for radiology less than six months before the accident.

5. Medical Assessor Couch reports that the claimant had a good recollection of the accident and her treatment. The Panel is of the view however that she is clearly mistaken in her recollection of her shoulder-related medical history before the accident.

6. The Panel is of the view that the opinions of those doctors who do not have the full clinical pre-accident picture including the claimant’s treating surgeon and Dr Bodel should therefore be given little weight.

Right and left shoulders

Does the claimant have bilateral shoulder injuries as a result of the accident?

1. The Panel is satisfied that the claimant sustained an actual frank injury to her right shoulder when she fell. She complained to ambulance personnel and hospital staff of pain in the right shoulder having fallen on her right side and a right shoulder injury was included in the claim form and the medical certificate completed by Dr Ong. The nature of the injury is a soft tissue injury which has aggravated pre-existing and previously symptomatic (from time to time) right shoulder pathology.

2. The claimant did not complain of a frank or actual injury in the left shoulder at the time of the accident. Mrs Genovese has, however since 11 March 2019[23] and 5 July 2019,[24] suggested her left shoulder has become symptomatic because of overuse of her right shoulder. Dr Shatwell reports a history of pre-accident left shoulder symptoms becoming more troublesome since the accident. The Panel notes that an ultrasound of the claimant’s left shoulder was undertaken on 19 July 2020 showing a complete tear of the supraspinatus tendon favoured by the radiologist to be longstanding.

   [23] Best of Care physiotherapy AD3 p 536.

   [24] Dr Ong consultation 5 July 2019.

3. The Panel notes that Ms Genovese did not complain to Medical Assessor Couch on the day of the re-examination of any symptoms including pain in her left shoulder although as referred to in paragraph 105 above there was some restriction of motion found in the left shoulder.

4. It is medically plausible for a person with an injury to one shoulder to sustain a consequential overuse injury to the other shoulder over time. The medical members of the Panel have reviewed the timeframe of the first post-accident complaints of left shoulder pain (March 2019), the radiological reports for the left shoulder (July 2019) and the history given to Dr Shatwell (April 2021) of pre-accident left shoulder symptoms including restricted ability to lift pots and pans.

5. It is the clinical judgment of the Medical Assessors that the left shoulder symptoms which emerged in mid-2019 are not a consequential overuse injury related to the accident but are unrelated and referable to the claimant’s pre-accident bilateral rotator cuff degenerative disease.

6. The Panel is therefore of the view that any impairment of left shoulder motion should not be included as an impairment resulting from injuries caused by the accident.

What is the impairment of the claimant’s right shoulder injury?

Was there inconsistency of shoulder motion during the examination?

1. In the upper extremity assessment section of the Guidelines, cl 6.50(d) provides that “if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation”. The examiner is then directed to cl 6.40.

2. Clause 6.40 provides:

   “The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”

3. Medical Assessor Couch did not identify any inconsistency during the course of examination in that the individual motion measurements were consistent (on three repetitions) and Mrs Genoeve’s range of restricted motion on informal observation (when removing her top) was consistent with the formal examination. Therefore, the Panel is satisfied that the measurements undertaken are plausible and provide a valid means of assessing the claimant’s current impairment.

4. On the basis of those measurements, the total upper extremity impairment for the right (injured shoulder) would be 19% and in the left shoulder 5%.[25]

   [25] Table 3, page 20 AMA 4 Guides.

5. The Panel notes that the claimant’s range of right shoulder motion when examined by Medical Assessor Couch produced a greater degree of impairment (19%) than any previous examination (15%, 17%, 13%). The left shoulder impairment (5%) is identical to Dr Bodel (5%) but not to the findings of Dr Shatwell (13%) or Medical Assessor Dixon 3%.

6. Clause 6.41 provides:

   “Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

7. While the variation in impairment assessments obtained by other examiners is not considered to be an inconsistency within the meaning of cl 6.41[26] it can be accounted for by a variation of pain levels and the further deterioration (with age and time) of the claimant’s degenerative shoulder conditions.

   [26] See for example, Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374 at [66] and [67].

Is the claimant’s current impairment resulting from the accident?

1. The Panel does not accept Mrs Genovese’s evidence at the re-examination that she had no shoulder symptoms or problems in either shoulder before the accident. While Dr Selim’s clinical notes from before the accident in 2018 are missing and the claimant appears to have only attended MyHealth since the accident, the radiology and physiotherapy records suggest Mrs Genovese is mistaken.

2. The claimant has well documented pre-accident symptoms in both her left and right shoulders. The claimant’s first imaging of her shoulder was in April 1999 (left shoulder) and August 2012 (right shoulder). The Medical Assessor’s note that radiology is undertaken due to symptomatology including complaints of pain which suggests that the claimant must have had some shoulder issues at those times.

3. In November 2014 the claimant had investigations for cervical pain due to right sided radiculopathy and it is well known that radiculopathy can cause impairment of shoulder motion due to irritation of the nerve roots and pain on lifting or reaching overhead. The physiotherapy notes from December 2014 also suggest the claimant had shoulder

   
   

   joint pain as well as symptoms of radiation from the neck down the right arm. On 1 December 2014, the notes of the physiotherapist[27] include the following measurements of right shoulder motion – flexion 130 degrees and abduction 110 degrees. Each of those measurements would result in a 3% upper extremity impairment making a total of 6% UEI and which of course does not include the other four motions (extension, adduction, internal and external rotation).

   [27] AD3 page 109.

4. In May 2018 (less than five months before the forklift accident) an ultrasound and CT scan of Mrs Genovese’s right shoulder was undertaken due to pain and difficulty with right shoulder movement. That scan revealed significant pathology in the acromioclavicular joint.

5. Medical Assessor Dixon made an arbitrary 50% deduction from the claimant’s WPI due to a pre-existing condition, but this is not allowable under the Guidelines. Clause 6.31 provides as follows:

   “The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”

6. Although Ms Genovese denied problems with the right shoulder at this reassessment, there is documentation of previous right shoulder symptoms, restricted range of motion and abnormal imaging.

7. The Panel is satisfied that there is objective evidence of a pre-existing impairment in the claimant’s right shoulder. The Panel does not accept the evidence of the claimant that her right shoulder was asymptomatic as there is evidence that in May 2018 the claimant was experiencing pain in her right shoulder significant enough to warrant investigation.

8. The Medical Members of the Panel are of the view that in their clinical judgment, the significant tear in the claimant’s right rotator cuff shown on imaging studies from before the accident, when considered with the records that have been made available, would have been producing pain and restriction of motion in the shoulder at the time of the accident.

9. The Panel is therefore of the view that the claimant’s current right shoulder impairment should be reduced pursuant to cl 6.31 of the Guidelines.

Can the left shoulder be used as the contralateral uninjured joint?

1. The claimant has reported quite severe persistent symptoms and restriction of activity. There was reproducible severe restriction of motion found on re-examination in the injured right shoulder, with only minor restriction in the uninjured left shoulder. Clause 6.51 of the Guidelines says:

   “If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”

2. The claimant’s left shoulder was not injured in the accident and has restricted movement. The Panel has found this is due to the claimant’s bilateral shoulder rotator cuff degenerative disease and is not a result of overuse since the accident. As the claimant has similar pathology in both shoulders, the Medical Members of the Panel are of the view that the claimant’s right shoulder would have had at least a similar impairment at the time of the accident that is 5%. This is consistent with the December 2014 restrictions of motion (6% for only two out of six movements) recorded by the physiotherapist.

3. The Panel is of the view that the claimant’s left shoulder has less than average mobility and therefore its current value (5% UEI) should be used as a baseline and subtracted from the claimant’s right shoulder impairment (19% UEI) in accordance with cl 6.51.

Right wrist

Causation of right wrist injury

1. There was a clearly documented injury to Mrs Genovese’s right wrist with an undisplaced fracture of the ulnar styloid. The insurer has not placed causation of this injury in issue.

What is the right wrist impairment?

1. The claimant has recovered well but on examination, flexion and extension of both the injured right wrist and the uninjured left wrist was reduced resulting in an UEI of 7% in both the left and the right wrist. The medical members of the Panel note the claimant’s pre-accident history of osteoarthritis in both hands[28] and their clinical judgment is that restriction of motion in the left wrist is caused by that degenerative condition. While the right wrist impairment could also be affected by her osteoarthritis, the claimant sustained an actual right wrist injury which would cause a similar impairment.

   [28] There were consultations with a rheumatologist in 1994 and in a note dated 19 November 2018 in the Enfield MyHealth records is history of “Osteoporosis diagnosed 2 years ago (last bone mineral density 2 years ago)”.

2. As the left wrist was not injured in the accident, and has less than average mobility, then it can serve as a baseline and, in accordance with cl 6.51 of the Guidelines, its value (UEI 7%) should be deducted from the right wrist impairment (UEI 7%) which results in a 0% UEI.

3. There was however a slight restriction of pronation of the right wrist, not present in the left wrist and which the medical members of the Panel are satisfied is a consequence of the documented injury. Its impairment should be included as resulting from the wrist injury.

4. Under AMA 4 Guides this is assessed using figure 35 (supination and pronation of the elbow) and attracts a 1% UEI.

Ankle injury and impairment

Did the claimant injure her left or her right ankle in the accident?

1. The claimant complained to Medical Assessor Couch of minor symptoms in the right ankle. Medical Assessor Couch found minor restriction of motion in the right ankle. Based on the measurements obtained at this re-examination, there would be a 3% WPI from loss of right ankle dorsiflexion and 1% WPI hindfoot impairment due to either the inversion or eversion measurement.[29]

   [29] See Tables 42 and 43 of the AMA 4 Guides and cl 6.85 of the Guidelines which requires only the highest impairment for each area of motion (in this case 3% for the ankle and 1% for the hindfoot).

2. Medical Assessor Dixon (3 August 2022) found restricted right ankle movements (and a 4% impairment) but did not measure the left. Dr Shatwell (26 April 2021) had a history from the claimant of a right ankle injury, but he found no residual symptoms in her right leg.

3. Dr Bodel found slight restriction of right ankle dorsiflexion and a greater restriction of left ankle dorsiflexion but did not assess impairment.

4. Concord Hospital records a left ankle injury and the claimant’s sworn claim form refers to the left ankle rather than the right. As mentioned earlier, of significance to the Panel is the photograph of the claimant’s bruised and swollen left ankle included in the claimant’s bundle.[30]

   [30] Page 135.

5. While Medical Assessor Dixon assessed the right ankle and certified its impairment in his decision of 4 August 2022, the Panel has been provided with a copy of the claimant’s electronic application for impairment assessment which lists as injury 2, a “lateral ligament injury left ankle”. The Panel also notes letters sent to the parties advising them of the original examination with Medical Assessor Dixon and the referral to him lists the left ankle lateral ligament injury.

6. The Panel is satisfied that the claimant injured her left ankle in the accident, but the Panel is not satisfied she injured her right ankle. The 4% impairment in the right ankle is therefore not related to any injuries sustained in the accident. The Panel notes the claimant injured her right foot in May 2000, had right heel pain in October 2009 and had been diagnosed with osteoporosis and osteoarthritis before the accident. The medical members of the Panel are of the view that these conditions could be responsible for the claimant’s current right ankle impairment.

What is the left ankle impairment?

1. The claimant told Dr Bodel (on 26 June 2020) her left ankle had recovered, and Ms Hildebrand (on 27 July 2020) has a history of the claimant sustaining bruising to her left ankle “which had mostly resolved”. There is no record the claimant reported left ankle symptoms to Medical Assessor Dixon. The claimant did not mention her left ankle to Medical Assessor Couch when asked about her accident-related injuries.

2. While the claimant has in the past indicated her left ankle causes no problems, the Panel notes her previous diagnoses of osteoporosis and osteoarthritis. There is some minor restriction of motion in the left ankle which could be caused by these conditions. However, the immediate post-accident hospital and medical records, as well as the claimant’s photograph does support a left ankle injury. In the light of the Panel’s total WPI assessment, the Panel does not propose in engaging further with the issue of causation of impairment and is prepared to accept the left ankle impairment could be resulting from a significant soft tissue injury sustained in the accident.

3. In accordance with Table 42 at page 78 of AMA 4 Guides, the claimant’s left ankle motion impairment is 0%. Mrs Genovese’s left hindfoot motion impairment is assessed in accordance with Table 43 at page 78 of AMA 4 Guides at 1% due the mild impairment to eversion.

Right knee

Causation of right knee injury

1. The ambulance personnel and staff at Concord Hospital recorded complaints of right knee pain. There was no imaging undertaken of the right knee at hospital.

2. The claimant’s claim form documents a right knee injury although Dr Ong does not mention it in the medical certificate attached to the claim form. The Panel cannot locate any complaint of right knee pain in the GP notes after the accident or any post-accident radiology of the right knee in the bundles of either party.

3. The Panel accepts the claimant could have and did sustain a soft tissue injury to the right knee when she fell to the ground after being knocked over by the forklift.

What is the right knee impairment?

1. The Panel notes the claimant’s right knee had been the subject of an X-ray and CT scan in May 2014. This suggests there had been complaints of right knee pain before the accident. There was however no further third-party involvement (for example there is no evidence of a referral to physiotherapy) and therefore there is no indication to the Panel of any pre-existing impairment.

2. Medical Assessor Dixon assessed the claimant’s right knee injury in accordance with the note beneath Table 62 in AMA 4 Guides which requires the following:

   (a)    direct trauma to the right knee;

   (b)    a complaint of patellofemoral pain, and

   (c)    crepitation on physical examination.

3. Medical Assessor Couch, like Dr Bodel and Medical Assessor Dixon, found evidence of right retropatellar irritability with palpable crepitus on movement. Ms Genovese has given a consistent history of falling on her right side and injuring her right knee.

4. The claimant complained to Ms Hildebrand in June 2020 and Dr Bodel in July 2020 of continued right knee pain and stiffness. Dr Shatwell (in 2021) noted no residual symptoms in the lower limbs. Medical Assessor Bodel records symptoms of pain in the right knee and on examination “mild tenderness at the lateral patellofemoral joint”. The claimant told Medical Assessor Couch she had no pain in the knees saying “no, I’m alright in the knee”.

1. On examination by Medical Assessor Couch, there was tenderness on palpation and pain could be reproduced with patellofemoral grinding and Clarke’s apprehension test was positive.[31]

   [31] Clarke’s apprehension test detects patellofemoral joint disorder. The patient is positioned lying down or sitting with the legs extended. The examiner places their hand jus above the patella and applies gentle pressure while the claimant contracts the quadriceps muscle. Pain or an inability to complete the test indicates a positive result which confirms the disorder of the joint.

2. Impairment resulting from an injury generally can be assessed without there being complaints by the injured person of pain in the injured body part. However, the footnote to table 62 requires there to be “a complaint of patellofemoral pain” in addition to evidence of trauma and the presence of crepitation before 2% WPI can be allocated. While the claimant did not volunteer right knee pain during the history taking part of the examination with Dr Couch, she did complain of tenderness during the physical examination phase and the positive Clarke’s test satisfies the Panel that there is pain in the knee.

3. The Panel is therefore satisfied that the claimant’s right knee should be assessed as having a 2% WPI.

CONCLUSION

1. The claimant’s upper extremity impairments are as follows:

   (a)    right shoulder         14% UEI (19% - 5%)

   (b)    right wrist               1% UEI

2. Figure 1 and page 15 of AMA 4 provide that the impairments for the hand, wrist, elbow and shoulder are combined using the chart at page 322 which, in this case provides a total of 15%. This is then converted using table 3 at page 20 to 9% WPI.

3. The claimant’s lower extremity impairments are as follows

   (a)    left (not right) ankle            1% WPI

   (b)    right knee  2% WPI

4. Because the impairments are to two different limbs, page 75 of AMA 4 requires the estimate to be expressed as a WPI before the impairment of each limb is then combined which is this case is 3%.

5. The upper extremity and lower extremity impairments are then combined using the chart at page 322 to obtain the final WPI figure which is 12%.

6. The Panel is satisfied that the claimant has a WPI of greater than 10% resulting from the injuries caused by the claimant’s accident at Flemington Markets on 6 October 2018.

7. While the Panel has arrived at the same result as Medical Assessor Dixon, we have found a different degree of impairment and have assessed the left ankle and not the right. For that reason, the Panel will revoke the previous certificate and issue a fresh certificate.

APPENDIX 1

Right shoulder range of motion measurements

Dr Bodel June 2020	Dr Shatwell April 2021	Medical Assessor Dixon August 2022	Panel March 2023
Flexion	100 (5%)	80 (7%)	100 (5%)	60 (8%)
Extension	30 (1%)	20 (2%)	40 (1%)	30 (1%)
Abduction	80 (5%)	70 (5%)	90 (4%)	50 (6%)
Adduction	10 (1%)	20 (1%)	30 (1%)	10 (1%)
Internal rotation	50 (2%)	70 (1%)	70 (1%)	60 (2%)
External rotation	50 (1%)	30 (1%)	50 (1%)	40 (1%)
Total	15% UEI	17% UEI	13% UEI	19% UEI

Left shoulder Range of Motion measurements

Dr Bodel June 2020	Dr Shatwell April 2021	Medical Assessor Dixon August 2022	Panel March 2023
Flexion	160 (1%)	100 (5%)	160 (1%)	180 (0%)
Extension	40 (1%)	30 (1%)	50 (0%)	40 (1%)
Abduction	160 (1%)	100 (4%)	160 (1%)	120 (3%)
Adduction	40 (1%)	30 (1%)	40 (1%)	30 (1%)
Internal rotation	70 (1%)	80 (0%)	80 (0%)	80 (0%)
External rotation	70 (0%)	40 (1%)	80 (0%)	100 (0%)
Total	5% UEI	12% UEI	3% UEI	5% UEI