QBE Insurance (Australia) Limited v Lorenzotti
[2025] NSWPICMP 67
•6 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Lorenzotti [2025] NSWPICMP 67 |
CLAIMANT: | Jelena Lorenzotti |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 6 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; wrist; tenosynovitis; cervical spine; thoracic spine; shoulders; both arms; medical review of certificate of Medical Assessor (MA) Woo; the claimant suffered injury in a motor vehicle accident on 18 December 2020; the dispute related to the assessment of WPI of cervical spine, thoracic spine, right wrist, both shoulders and both arms; MA Woo assessed 5% WPI for injury to cervical spine; 5% WPI for injury to thoracic spine; and 3% WPI for injury to right wrist; on examination injuries to both shoulders resulting from referred pain from cervical spine in accordance with Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd and assessed at 1% WPI; cervical spine assessed as DRE category 1 – 5% WPI; thoracic spine assessed as DRE category 1 – 0% WPI; de Quervain’s tenosynovitis in right wrist assessed at 3% WPI; no frank injury to the arms; Held – certificate of MA Woo revoked and certified injures caused by accident gave rise to 9% WPI. |
DETERMINATIONS MADE: | WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 13 May 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment that is not greater than 10% and is 9%: · right wrist – complex regional pain syndrome (resolved), de Quervain’s tenosynovitis; · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury, and · both shoulders – soft tissue injury secondary to the injury to the cervical spine. 2. The Panel determines the following injuries were not caused by the motor accident: · both arms – soft tissue injury. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 18 December 2020 Ms Jelena Lorenzotti (the claimant) was driving her Hyundai Elantra. As she approached the intersection of Richmond Road and Trinity Drive, Cambridge Gardens a car on her left attempted to make a right hand turn, failed to give way at a stop sign and collided with the passenger side of the claimant’s car (the accident).
Ms Lorenzotti was 37 years of age at the date of accident and is now 41 years of age.
Ms Lorenzotti has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Lorenzotti under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Alexander Woo who issued a certificate dated 13 May 2024. It is that certificate which is the subject of this review.
DOCUMENTS BEFORE THE REVIEW PANEL
On 9 October 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 263 (insurer’s documents).
On 28 October 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 22 (claimant’s documents).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(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.
CERTIFICATE UNDER REVIEW - CERTIFICATE OF MEDICAL ASSESSOR WOO
The following injuries were referred to Medical Assessor Woo for assessment:
· right wrist – regional pain syndrome and ligament tear;
· cervical spine – soft tissue injury and whiplash associated disorder;
· thoracic spine – soft tissue injury;
· both shoulders – soft tissue injury, and
· both arms – soft tissue injury.[3]
[3] Insurer’s bundle p 16.
In a certificate dated 13 May 2024 Medical Assessor Woo certified the claimant had sustained a whole person impairment (WPI) of 13% arising out of the following injuries caused by the accident:
· right wrist – (complex regional pain syndrome resolved), de Quervain’s tenosynovitis;
· cervical spine – soft tissue injury with non-verifiable radicular complaints;
· thoracic spine – soft tissue injury with non-verifiable radicular complaints;
· both shoulders – soft tissue injury, and
· both arms – soft tissue injury.[4]
[4] Insurer’s bundle p 16.
On examination Medical Assessor Woo found that the clinical signs of complex regional pain syndrome had resolved. He found the claimant had persistent symptoms and signs of de Quervain’s tenosynovitis with mild inconsistent symptoms. He assessed 20% impairment of the right thumb under AMA Guides 4, Table 29 which converted to 3% WPI.
Medical Assessor Woo found Ms Lorenzotti had a history of injury to the cervical spine with non-verifiable radicular complaints. He assessed a cervical spine DRE category II or 5% WPI.
Medical Assessor Woo found Ms Lorenzotti had a history of injury to the thoracic spine with non-verifiable radicular complaints. He assessed a thoracic spine DRE category II or 5% WPI.
Medical Assessor Woo found a normal range of motion of both shoulders with no assessable impairment and assessed a 0% WPI.
REVIEW PROCEDURE
On 12 August 2022 the insurer sought a review of the medical assessment of Medical Assessor Woo.
On 17 September 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6] The review is by way of a new assessment of all matters with which the medical assessment is concerned.
[6] Rule 128 of the PIC Rules.
On 21 November 2024 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE REVIEW PANEL
Pre-accident treating medical evidence
Clinical notes of First Care Medical Centre
It is noted the clinical notes of First Care Medical Centre disclose the following pre-accident attendances:[7]
[7] Insurer’s bundle p 93.
· 26 October 2017 – feeling fatigued, joint and muscle pains, osteoarthritis of right knee;
· 6 February 2019 – hit head and feeling nauseous, concussion;
· 8 February 2019 – pain in neck, blurred vision, light-headedness;
· 11 February 2019 –recent bump to head and mild concussion, on exam cervical vertebrae palpation makes her extremely dizzy, in past injured the cervical vertebra and wore a neck brace for a while. Radiculopathy on left side prominent. Referral for MRI cervical spine. CT scan brain normal. Trauma in past injured cervical vertebra and wore neck brace for a while;
· 27 August 2019 – foot pain;
· 5 January 2020 – hit right hand hard on shelf resulting in tenderness on the MTP and proximal phalanx;
· 6 January 2020 – X-ray – possible fracture right middle finger;
· 7 January 2020 – has volar plate fracture involving the right 3rd middle phalanx base. Treated with splint;
· 21 January 2020 - finger improving;
· 23 June 2020 – left lower limb feeling heavy, pain in the gluteal region and groin area, and
· 8 July 2020 – hip pain, possible trochanteric bursitis.
Clinical notes from the Healthy Body Company, physiotherapists demonstrate the following:
· Attendances on 7 January 2020, 21 January 2020, 11 February 2020,
18 February 2020, 27 February 2020, 8 March 2020, 10 March 2020 and
24 March 2020 relate to the finger fracture;· 7 April 2020 – right hand and finger pain, index and thumb most noticeable;
· 23 April 2020 – neck and upper back pain;
· 10 May 2020 – neck stiff and sore;
· 22 May 2020 – neck and upper back improved;
· 12 June 2020 – neck and upper back improved;
· 19 June 2020 – lower back feeling stiff;
· 3 July 2020 – left hip and lower back pain;
· 10 August 2020 – left hip and lower back pain;
· 28 August 2020 - left hip and lower back pain;
· 21 September 2020 – feeling better in upper back and neck;
· 1 October 2020 – feeling better in upper back and neck;
· 12 November 2020 – a bit tight in upper traps;
· 16 November 2020 – left hip and lower back pain, and
· 5 December 2020 – tight through upper and lower back.[8]
[8] Insurer’s bundle pp 193 – 223.
Police report
The accident was reported on 11 January 2021. It was described as a minor crash and the narrative details record:
“The accident occurred on the 18/12/2020, where details were exchanged and both parties did not require medical attention. The DRIVER2 in the incident then began to experience pain some muscle pain in her neck and right hand approximately 48 hours after the incident. The DRIVER2 didn’t seek medical attention until 10/01/2021, where she was recommended to report the matter.”[9]
[9] Insurer’s bundle p 33.
Application for personal injury benefits
In the Application for personal injury benefits dated 14 January 2021 the claimant listed the following injuries:
“I have stiffness and aching pain through my neck, shoulders, arms and upper back. I get dizziness and nausea with certain movements of my neck, head and arms. The aches and pains also affect my ability to sleep. I have a sharp pain that shoots in my right wrist, along with tingling and deep throbbing in my fingers and up the arm, caused by impact on the steering wheel, this injury is currently being investigated with various scans through my GP and Physiotherapist.”[10]
[10] Claimant’s bundle p 4.
Ms Lorenzotti described the accident as follows:
“… as I approached the Trinity Drive intersection I noticed the Kia Soul car quickly approach the intersection to my left, …. I applied my brakes because it appeared they hadn’t seen my car at all, the driver kept accelerating to cross …. In these quick seconds before the collision, I tried to veer as much as I could to my right in order to avoid as much direct impact to the left side of my car as possible … my car was knocked across the road and stopped ….”
Post accident treating medical evidence
Neither police nor ambulance officers attended the scene of the accident on
18 December 2020. On returning home the claimant’s husband took her to Nepean Hospital where she had scans of her neck and abdomen.On 21 December 2020 Mr Lorenzotti consulted Dr Mohammad Al Faruque general practitioner (GP) who reported the recent accident when she was T-boned.[11] He recorded pain in both right and left shoulder and back pain with possible whiplash and recommended physiotherapy.
[11] Insurer’s bundle p 99.
On 6 January 2021 Dr Al Faruque certified Ms Lorenzotti not fit to work post-accident.
On 11 January 2021 Taylor Sims physiotherapist of The Healthy Body Company reported the accident on 18 December 2020 with pain in the neck and shoulders. She reported
Ms Lorenzotti was getting numbness down the left arm intermittently and ongoing pain in the right wrist.[12][12] Insurer’s bundle p 193.
On 12 January 2021 Dr Al Faruque reported two sessions of physio had taken place and noted concern was raised about the right wrist joint.
On 15 January 2021 Dr Al Faruque reported a CT scan of the right wrist gave rise to a suspected TFCC (triangular fibrocartilage complex) injury.
On 19 January 2021 Ken Truong physiotherapist of The Healthy Body Company diagnosed whiplash associated disorder with secondary spasm and neurological irritation and a TFCC tear with wrist strain from force during hypertension. He applied a short arm cast to be worn for six weeks.[13]
[13] Insurer’s bundle p 191.
On 7 April 2021 Ms Sims reported Ms Lorenzotti had recently commenced light hand physiotherapy.[14] She reported minimal lateral pain but significant base of first metacarpal pain. She reported the claimant remained stiff into wrist flexion and extension and was tender on supination. Ms Sims reported movement of the claimant’s thumb was significantly pain limited.
[14] Insurer’s bundle p 262.
In a report dated 13 May 2021 Ms Sims reported the claimant was attending physiotherapy for management of her cervical spine pain following a whiplash injury.[15] She reported the claimant was under the care of a hand specialist for management of her right wrist chronic regional pain syndrome which developed following the accident. She reported Ms Lorenzotti completed her domestic duties with minimal aggravation from her cervical spine and she had a full cervical range of motion.
[15] Insurer’s bundle p 261.
On 8 April 2021 Dr Michael Dowd hand surgeon reported:
“She noticed quite severe wrist pain 48 hours after her accident affecting the ulnar aspect of that right wrist. Soon she developed pain over the entire wrist and she feels she may have been sent very forcefully into the door near her right hand as she was the driver. … She gets some tingling and pain in her palm and very often the whole right hand feels very cold. She gets some shooting pains radial aspect of the wrist as well. She has noticed abnormal hair growth over the forearm.”[16]
[16] Claimant’s bundle p 20.
On examination Dr Dowd noted clearly abnormal hair growth over the forearm and increased swelling. He reported colour changes in the right hand of a motley red and blue colour. He reported she was tender globally over the wrist particularly the radial ulnar aspect. He reported a positive Finkelstein’s test. He also noted she was tender over the bare area near the TFCC and over the ECU tendon. Tinels test over the carpal tunnel did not produce paraesthesia but it caused pain.
Dr Down reported the MRI, CT and ultrasound scans were essentially normal. He concluded Ms Lorenzotti had a severe and classical complex regional pain syndrome noting she fulfilled the Budapest criteria for complex regional pain syndrome.
Dr Dowd recommended hand therapy and the instigation of a complex regional pain syndrome protocol.
Ms Lorenzotti saw Dr Sushama Deshpande, pain specialist on 19 August 2021 when she presented with ongoing cervical spinal pain, headaches and right arm pain. Dr Deshpande noticed features suggestive of right hand complex regional pain syndrome (Budapest criteria), left occipital neuralgia and cervical axial pain. The pain disorder resulted in limitations to physical function and distress and low mood and may require interventional pain procedures.[17]
[17] Insurer’s bundle p 51.
On 17 June 2021 Dr Dowd stated the claimant still had complex regional pain syndrome and it was definitely related to the car accident. In relation to causation, he stated:
“Jelena had this car accident and had immediate pain and swelling and this has now become CRPS. Jelena meets the criteria for CRPS. She has severe pain. She has colour changes in affected area. Her pain is beyond the expectations of the trauma which gave rise to the pain. She has abnormal hair growth. She has oedema and stiffness.”[18]
[18] Claimant’s bundle p 2.
On 18 November 2021 Dr Deshpande reported the “right hand arm neuropathic pain and CRPS is better now”.
In an Allied health recovery request dated 18 November 2021 Carrie Kwok, physiotherapist noted the claimant had “near full wrist ARM [and] full digital AROM”.[19] Her strength had improved, her CRPS parasympathetic symptoms were improving, her skin tone had evened out, there was reduced thickness of hair growth and reduced sweating. She had pain at the radial side of the wrist and the base of her left thumb and was favouring her right hand in completing tasks.
[19] Insurer’s bundle p 58.
On 14 April 2022 following a telephone consult Dr Deshpande reported Ms Lorenzotti was complaining of headaches, and dizziness with lateral rotation of the cervical spine with right arm radiculopathy.[20]
Imaging
[20] Insurer’s bundle p 56.
MRI right wrist on 9 March 2021
The report concluded:
“Intact TFCC. The wrist ligaments and tendons are intact. There is no evidence of fracture. Small amount of bone marrow oedema in the distal pole of the scaphoid, which may be related to bony contusion previous injury.”[21]
[21] Insurer’s bundle p 48.
MRI cervical spine on 9 July 2021
The report concluded:
“Shallow disc bulging at C2/3, C3/4 and C5/6 without resulting in significant spinal canal stenosis or foraminal stenosis.
No vertebral fracture, bone marrow oedema or ligament injury seen.”
Ultrasound right shoulder on 15 May 2023
The report concluded:
“Findings:
Ultrasound of the right shoulder shows normal location of the long head of biceps tendon with no fluid seen within the biceps tendon sheath.
Subscapularis and infraspinatus tendons are normal.
There is mild tendinotic change involving the anterior-to-mid supraspinatus tendon with no tear.
There is moderate reactive subacromial bursitis with fluid in subacromial bursa.
Tendinotic change involving the supraspinatus with reactive subacromial bursa.
Conclusion:
Tendinotic change involving the supraspinatus with reactive subacromial bursitis.
The patient may benefit from trial of steroid injection into the subacromial bursa.
No fluid is seen in the AC joint or glenohumeral joint to suggest significant synovitis.”
Ultrasound left shoulder on 17 May 2023
The report concluded:
“The supraspinatus tendon appears tendinotic. No tears seen. The remaining rotator cuff and biceps tendons are intact.
Subacromial bursitis with bursal bunching.”
Ultrasound right wrist on 29 May 2023
The comment reads:
“Evidence of median nerve neuritis as clinically suspected.”[22]
[22] Insurer’s bundle p 49.
MRI Thoracic spine on 5 June 2023
The report concluded:
“Tiny posterocentral disc protrusion at T7/T8, this exerts minimal mass effect on thecal sac, with no cord myelopathy at this level or elsewhere, rest of MR assessment normal.”
The Panel notes the following imaging reports were referenced in the medical reports, but the Panel has not sighted either the report or the imaging. In a message dated
6 January 2025 the claimant advised he did not have copies of these images or reports. Whilst the Panel has not reviewed the reports or the imaging the Panel notes the comments made by other medical practitioners on those images.
CT right wrist on 13 January 2021
There was no evidence of fracture.
Ultrasound right wrist on 13 January 2021
The ultrasound demonstrated a possible injury to the triangular fibrocartilage.
Ultrasound right wrist on 21 June 2021
The report concluded:
“There is de Quervain’s tenosynovitis. There is tenderness at the ulnocarpal/TFCC region, without a sonographic abnormality.”
Medico-legal evidence
Dr Raymond Wallace, orthopaedic surgeon
The claimant saw Dr Wallace at the request of the insurer and provided a report dated
12 December 2022.[23][23] Insurer’s bundle p 45.
He reported no previous history of injury at her spine or right upper limb.
Dr Wallace reported complaints of a constant aching pain at the cervical spine from C2 to C7 spinous processes radiating to the skull behind her ears, the scapular spine bilaterally, the interscapular region of the thoracic spine and the posterior aspect of the right arm to the elbow. Ms Lorenzotti reported intermittent paraesthesia at the posterior aspect of the right arm to the hand, involving the right index finger. She reported weakness at her right arm and often dropped objects. Dr Wallace reported a constant aching pain at the base of the right thumb, intermittent swelling at the right hand, and weakness of grip at the right hand. He also reported intermittent aching pain at the L5 spinous process radiating to the right buttock and paraesthesia at the posterior aspect of the right leg to the level of the calf.
Dr Wallace diagnosed the following injury caused by the accident:
· musculoligamentous strain cervical spine;
· ligamentous strain right wrist;
· ligamentous strain carpometacarpal joint right thumb, and
· musculoligamentous strain lumbar spine.
Dr Wallace assessed a 5% WPI for the injury to the cervical spine, 0% WPI for the right wrist, 0% WPI for the lumbar spine and no WPI at the right thumb as she had a full range of movement of the metacarpal joint.
In a supplementary report dated 23 January 2024 Dr Wallace referred to the clinical notes of the Healthy Body Physiotherapist for the period 23 April 2020 through to December 2020 and concluded that whilst the claimant’s injuries were sustained in the motor vehicle accident of 18 December 2020 a proportion was due to the pre-existing symptomatic cervical spine condition.
Dr James Bodel, orthopaedic surgeon
Dr Bodel assessed the claimant and provided a report dated 24 January 2024.[24] He reported following the accident Ms Lorenzotti developed increasing head and neck and shoulder girdle pain, left wrist and hand pain, lower back pain and interscapular pain and abdominal pain.
Dr Bodel reported Ms Lorenzotti had an ache in all injured areas and at times the pain in the wrist could be a sharp pain. He also reported some swelling over the distal part of the radius.[24] Claimant’s bundle p 11.
In relation to previous claims Dr Bodel reported there was a fracture of the middle finger of the right hand. Other than endometriosis Ms Lorenzotti had previously been quite well.
Dr Bodel reported an MRI scan of the wrist showed evidence of TFCC tear. MRI scans of the lumbar and cervical spine showed minor degenerative change. The ultrasound of the right shoulder showed bursitis and tendonitis.
Dr Bodel reported tenderness in the trapezius muscle at the base of the neck on the right side and guarding with a restricted range of neck flexion, extension and rotation in all directions.
He reported a slight symmetrical restriction of lateral bending and rotation of the thoracic spine.
He found no impairment of straight-leg-raising or neurological abnormality in the lower limbs.
Dr Bodel noted impingement of the right shoulder but no instability.
On examination of the shoulder, he reported active range of movement as follows:
Shoulder Movement
Right
Left
Normal
Flexion
140º
180º
180º
Extension
40º
50º
50º
Adduction
20º
50º
50º
Abduction
120º
180º
180º
Internal rotation
60º
90º
90º
External rotation
60º
90º
90º
Dr Bodel reported grip strength was normal on both sides. He reported a small swelling over the distal part of the radius and tenderness with a positive Finkelstein’s test indicating the presence of de Qervain’s tenosynovitis.
Dr Bodel reported restricted active range of wrist movement on the right as per the following table:
Wrist Movement
Right
Left
Normal
Flexion
50º
60º
60º
Extension
50º
60º
60º
Radial deviation
20º
20º
20º
Ulnar deviation
25º
30º
30º
Pronation
70º
80º
80º
Supination
70º
80º
80º
Dr Bodel diagnosed soft tissue injury to the neck and back and interscapular region of the thoracic spine. He found clinical evidence of rotator cuff pathology in the region of the right shoulder and a TFCC injury to the right wrist. He reported there were no signs of pre-existing abnormality or pathology.
Dr Bodel assessed a total WPI of 18%, with 5% WPI for the cervicothoracic spine, 5% WPI for the thoracolumbar spine and 9% for the right upper limb.[25]
SUBMISSIONS
[25] Claimant’s bundle p 18.
Insurer’s submissions
The insurer provided submissions dated 12 August 2024 in support of the application for review.
The insurer submitted Medical Assessor Woo concluded the claimant “had no previous relevant injuries” and had good general health prior to the accident. The insurer refers to the following history:
(a) the claimant had pre-accident history of neck pain including an accident in 2016 which revealed past cervical vertebrae trauma with radiculopathy;
(b) the claimant made complaints of neck and upper back pain in the lead up to the accident including in September 2020 (neck) and upper back (two weeks before the accident), and
(c) in January 2020, the claimant hit her right hand hard on a shelf resulting in a volar plate fracture involving the right 3rd middle phalanx. In the month preceding the accident the claimant reported continuing pain, neural symptoms and reduced range of movement in the right wrist.
The insurer submits Medical Assessor Woo failed to engage with the issue of causation, disclose his path of reasoning and made no reference to the claimant’s pre-existing neck, upper back and right wrist injuries.
The insurer provided submissions dated 5 December 2023 in respect of the substantive application.[26]
[26] Insurer’s bundle p 8.
The insurer notes the police report described the accident as a “minor traffic crash”. Whilst the claimant reported she experienced neck and right hand pain approximately 48 hours after the accident the insurer notes the first report of hand pain was not until 12 January 2021.
The insurer submits reliance on the claimant’s reported symptoms and complaints should be treated with caution. The insurer notes that in response to question 5 of the Application for personal injury benefits the claimant indicated she had not suffered any prior injuries to the same or similar parts of the body. Dr Wallace also reported he was given a history by the claimant of no previous injuries to her spine or right hand/fingers. However, the insurer notes that the clinical notes of The Healthy Body reveal that 13 days prior to the accident the claimant reported upper and lower back pain. The insurer also notes the claimant had an extensive history of severe neck pain from an accident in 2018 and she also suffered a fracture to the right middle finger one year prior to the accident.
Right wrist
The insurer disputes causation in respect of the right wrist. The claimant sustained a fracture to her right middle finger one year prior to the accident.
The insurer notes there are no recorded complaints of pain in the right hand/wrist until
12 January 2021, nearly one month after the accident.The MRI of the right wrist dated 11 March 2021 states there was an “intact TFCC”, the wrist ligaments and tendons were intact and there was no fracture.
The ultrasound of the right wrist of 21 June 2021 revealed de Quervain’s tenosynovitis and mild triscaphe joint synovitis. The insurer notes de Quervain’s tenosynovitis is typically a degenerative condition resulting from overuse.
On 20 July 2021 Carrie Kwok physiotherapist reported skin tone was becoming more even, she had reduced sweating at palm, smooth active wrist movement and improved grip strength. However, on 19 August 2021 Dr Deshpande reported complaints of pain to the right hand with ongoing swelling, sensitisation, painful range of motion and colour changes to the right wrist and right hand. He provided a provisional diagnosis of CRPS. On 18 November 2021 Dr Deshpande reported the right hand arm neuropathic pain and CRPS is better now.
The insurer submits Dr Wallace did not note any evidence of CRPS and reported a normal range of motion.
Cervical spine
The insurer notes the claimant’s involvement in the 2018 accident where she was rear ended causing trauma to her cervical spine. The insurer notes this earlier injury was not disclosed to medical providers except Dr Al Faruque.
The insurer notes the initial CT on 18 December 2020 was “ok”. From 24 May 2021 the clinical notes of The Healthy Body reveals that the claimant had a full cervical spine range of motion. On 19 August 2021 Dr Deshpande confirmed the cervical spine range of motion was essentially normal.
Whilst Dr Wallace assessed a 5% WPI the insurer submits if he was aware of her previous injury he may have concluded her previous WPI was also 5% resulting in an ultimate WPI of 0%.
Thoracic spine
The insurer disputes causation of the thoracic spine injury. The insurer notes the claimant has received treatment for her lower and upper back from about April 2020 until immediately prior to the accident. In an entry of The Healthy Body dated 5 December 2020 the claimant was “stiff through upper back, tender left and right t4-t7 [and] p1 with transverse mobs t5-t7”.
The insurer submits there is no objective evidence of any thoracic spine injury caused by the accident and if there was a thoracic spine injury it has since resolved.
Both shoulders and arms
Whilst Dr Al Faruque recorded early complaints of shoulder pain there is an absence of reports of shoulder pain beyond the immediate period following the accident.
If there was any shoulder or arm injury resulting from the accident the insurer submits it has since resolved.
Claimant’s submissions
The claimant provided submissions dated 2 September 2024.[27] The claimant asserts there are no errors in the Certificate of Medical Assessor Woo who considered all relevant documents in reaching his conclusion and took a detailed history from the claimant including treatment and symptoms.
[27] Claimant’s bundle p 8.
MEDICAL EXAMINATION
Ms Lorenzotti was examined by Medical Assessor Les Barnsley at the Commission’s medical suite on 21 January 2025. A female chaperone attended all times during the assessment.
The reasons for the assessment were discussed with the claimant. The non confidential nature of the assessment was also disclosed, and it was explained that the assessor would not be involved in any treatment. The types of questions to be asked and the type of examination that would be required were also explained.
Pre-accident medical history
Ms Lorenzotti was asked about any prior medical problems and in particular any musculoskeletal difficulties before the accident. She explained she suffered from endometriosis, otherwise being fit. She was working as a forklift driver in an IKEA warehouse. She said the job was very active and physically demanding. Prior to the accident she said she had had some stiffness in her hips and had received some physiotherapy.
On specific questioning about neck or shoulder pain, Ms Lorenzotti stated she had not had any problems in these areas. Her attention was then drawn to the physiotherapy notes of November and December 2020. She explained she had occasional stiffness around the neck and upper back which she related to the type of work. She derived some useful benefit from soft tissue massage for this stiffness and was undergoing a series of exercises with the intention of strengthening up her back. Ms Lorenzotti was clear that she was not experiencing pain or paresthesia in her back or neck or upper back prior to the accident.
Ms Lorenzotti had also sustained a volar plate fracture of the right third finger at the distal inter phalangeal joint. This had occurred when she had caught her finger after dropping an item. However, she did not experience any symptoms outside that joint and denied any problems in the wrist or arm or neurological symptoms in the right hand. This problem was managed with physiotherapy, and she explained she received physiotherapy for the hand and the neck and back stiffness concurrently. This would be consistent with the notes contained in the insurer's bundle regarding her physiotherapy treatment. Ms Lorenzotti indicated immediately prior to the accident she was not experiencing any significant symptoms and indeed had felt the best she had felt for some time.
The accident
The accident took place on 18 December 2020. Ms Lorenzotti was the driver of a Hyundai Elantra. She was wearing a seat belt. Her 9-year-old daughter was in the passenger seat. She was on a 2-lane road when another vehicle entering from a road on her left collided with the rear passenger side of her car. Ms Lorenzotti said she felt quite dazed after the accident and was most concerned for the well-being of her daughter. When asked if she had any recollection of hitting anything inside the car she felt that she had struck her right shoulder on the door. She was also concerned that she had hit the right elbow on the door, but this was suspected primarily on the basis that she has had some pain in the right arm rather than a specific recollection of a particular impact.
The ambulance and police service did not attend. Her car was not drivable and was later written off. About two to three hours after the accident Ms Lorenzotti became increasingly aware of tightness and soreness across the back of the neck. She felt nauseated on turning her head. Because of these symptoms her husband took her to Nepean hospital with her daughter. She had a CT scan of the cervical spine performed which excluded fractures although there was an incidental finding of a thyroid lesion.
Ms Lorenzotti thinks she saw her local doctor a couple of days later at which time she had pain in the back, neck and around the hips. Her GP organised for her to have physiotherapy but there was difficulty getting treatment because this was over the Christmas holiday time.
Over the next week Ms Lorenzotti said that she had increasing pain in the lateral hips and low back. This then slowly eased, and she became increasingly aware of pain in the neck, more so on the right than the left, and in the mid and lower neck. She also had significant interscapular pain (pain between the shoulder blades). She also became increasingly aware of pain in the right wrist affecting the ulnar aspect and associated with some local swelling.
Her physiotherapist was concerned that she might have a tear of the triangular fibro cartilage in the wrist. Because of this she was placed in a cast for six weeks. However, once her hand was in the cast she developed increasing pain over the radial (thumb side) of the wrist around the base of the thumb and along the outside of the thumb. These were new symptoms following the application of the cast.
At the time that the cast was removed it was noted that Ms Lorenzotti had abnormal hair growth, sweating, discoloration and increased pain in the hand. A diagnosis of chronic regional pain syndrome (CRPS) was made. She was subsequently referred to a hand surgeon Dr Dowd who confirmed this diagnosis and recommended hand physiotherapy.
A subsequent MRI scan showed that the TFCC was intact and there was some mild oedema in the scaphoid bone.
Over time her hip and low back pain has settled and she now only experiences very intermittent symptoms in the back. These symptoms are not the subject of the current review.
Unfortunately, her neck pain has persisted. It is centred over the C5 to C7 spinous processes in the midline with radiation inferolaterally to the top of the scapular and into the upper part of the arm on the right. She experiences aching into the right arm. She has not noticed any separate shoulder pain, but the neck pain is increased by some arm movements particularly when working overhead. She feels that the pain into the shoulders radiates from the neck.
Ms Lorenzotti experiences pain in the mid thoracic spine between the T6 and T9 levels. The pain is primarily over the spinous processes. She does not experience any shooting pain or tingling around the chest but does get some tightness in the anterior chest.
She experiences a constant ache from the wrist with sharp shooting pain on the radial side of the wrist. She also experiences an ache along the ulnar aspect of the right arm from the elbow downwards. She experiences tingling of the right 5th and right 2nd digits. The symptoms are made worse by hand movements.
Ms Lorenzotti has difficulty using the right hand for any gripping or twisting activities such as opening a jar.
On account of the pain in the right wrist and right side of her neck Ms Lorenzotti has taken to using the left arm for an increasing number of tasks. She does not experience any regular pain in the left arm but has had some tingling from time to time. This is diffuse and affects the entire limb.
Ms Lorenzotti has not been involved in any other accidents. She has been pregnant since the accident and delivered her third child in 2022.
Physical examination
On examination Ms Lorenzotti was 163cm tall and weighed 64kg.
Cervical spine
On examination of the cervical spine flexion was 75% of what would be expected and precipitated dizziness. Extension was normal as well as right lateral flexion and left lateral flexion. Right and left rotation were both near full range, but left rotation was associated with right sided neck pain. There was marked tenderness over the lower cervical spine with some involuntary muscle guarding on palpation of the right lower articular pillars. Spurling's test was attempted. However, Ms Lorenzotti became dizzy and nauseated with the manoeuvres. No arm pain was precipitated.
Upper limb neurological examination revealed normal power including good grip strength on both sides, although wrist pain was precipitated on the right. Deep tendon reflexes were all able to be elicited and there was no asymmetry. Specifically, Ms Lorenzotti had normal brachioradialis, biceps and triceps jerks.
Upper limbs
Sensory examination of the upper limbs revealed normal sensation to light on the left side. The entire right arm felt subjectively different to the left arm and there was decreased sensation over the right 5th finger. There was also decreased sensation over the thumb and index finger on the right side.
The circumference of the upper arm and forearm were measured 10cm above and below the lateral epicondyle respectively. On the right the upper arm measured 29cm and the forearm 24cm. On the left the upper arm was 28cm and the forearm 24cm. These findings are consistent with right hand dominance and do not indicate any wasting.
Thoracic spine
On examination of the thoracic spine there was tenderness in the paravertebral muscles, but no guarding or spasm. Flexion, extension and rotation were full and symmetrical. Abdominal reflexes were normal. There were patchy changes to sensation over the posterior chest wall on both sides which did not follow a particular dermatome. She had significant tenderness over the midline around T7 to T9.
Shoulders
Shoulder and wrist examination incorporated a goniometer to assess range of movement.
On the right side flexion was 170°, extension 60°, abduction 170°, adduction 50° internal rotation 90° and external rotation 80°.
On the left side flexion was 170°, extension 60°, abduction 170°, adduction 50° internal rotation 90° and external rotation 90°.
Wrists
On examination of the wrists the left wrist was normal with no tenderness, swelling or crepitus. On the right side there was no palpable swelling or crepitus. However, there was marked tenderness over both the ulnar aspect of the right wrist and also over the course of the thumb extensor tendons either side of the wrist joint. She had a positive Finkelstein's test.
Assessing the range of movement in the wrists on the right, flexion 60°, extension 70°, ulnar deviation 30° radial deviation 20° and pronation and supination were full.
On the left side flexion 60°, extension 70°, ulnar deviation 30°, radial deviation 30°, pronation and supination were full.
The range of movement in the thumbs, fingers and elbows were normal.
CONSISTENCY
Medical Assessor Barnsley did not find any inconsistencies on examination and found no reason to doubt the history provided by Ms Lorenzotti.
Furthermore, the Panel was reassured as to the veracity of the history Ms Lorenzotti provided where she conceded that any initial complaints relating to her hip and back had resolved confirming there was no attempt to exaggerate or embellish the extent of injury sustained in the accident.
DIAGNOSIS AND CAUSATION
Whilst the police report referred to a “minor traffic crash” the Panel notes in her Application for personal injury benefits the claimant states her car was knocked across the road. Even though police and ambulance did not attend the scene Ms Lorenzotti stated her car was not driveable and was subsequently written off. The Panel is satisfied that the claimant was involved in a motor vehicle accident with significant lateral forces sufficient to cause or contribute to the injuries complained of by the claimant, namely cervical and thoracic pain as well as pain in the region of the right wrist.
In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright reminded us that the relevant legal test in relation to causation does not require scientific certainty.[28]
[28] Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372.
Cervical spine
The Panel finds the claimant has sustained a soft tissue injury to the cervical spine.
Having regard to her pre-existing complaints relating to the cervical spine, the question is whether the accident did cause or contribute to a worsening of that condition.
The insurer submits the claimant had a pre-accident history of neck pain including an earlier accident with alleged radiculopathy. She complained of neck pain in the lead up to the accident including in September 2020.
The Panel notes the clinical notes of First Care Medical Centre do not reference any complaints relating to the cervical spine subsequent to 11 February 2019 when it was reported she had injured her cervical vertebrae in the past, and even wore a neck brace for a while. It was reported on examination cervical vertebrae palpation made the claimant feel dizzy and radiculopathy was noted on the left side.
Clinical notes from the Healthy Body Company demonstrated Ms Lorenzotti underwent physiotherapy in relation to neck and upper back complaints on 23 April 2020, 10 May 2020, 22 May 2020, and 12 June 2020. On 21 September 2020 and on 1 October 2020 it was reported Ms Lorenzotti was feeling better in the neck and upper back.
Whilst Ms Lorenzotti did not disclose the earlier motor vehicle accident when questioned by Medical Assessor Barnsley she conceded she attended physiotherapy to address stiffness around the neck and upper back which she related to her physically demanding work as a forklift driver in an IKEA warehouse.
Medical Assessor Barnsley accepted the claimant as an honest historian and where there is no recorded complaint of pain to a medical practitioner between 11 February 2019 and the accident the Panel accepts the claimant’s physiotherapy attendances were to address stiffness in her neck arising out of her physically demanding work as a forklift driver.
The Panel notes Ms Lorenzotti attended Nepean Hospital following the accident and underwent a scan of her neck and consulted her GP Dr Al Faruque on
21 December 2020 when he diagnosed pain in both shoulders and back pain with a possible whiplash. Thereafter she has continued to complain of neck pain. The Panel is satisfied the accident caused the claimant to sustain a soft tissue injury to her cervical spine.
Thoracic spine
The insurer disputes causation of the thoracic spine injury having regard to the pre-accident history of treatment with the Healthy Body.
The Panel notes there is no recorded complaint of thoracic pain to a medical practitioner pre-accident and accepts the pre-accident physiotherapy treatment to the upper back was to address stiffness arising out of the claimant’s physically demanding work as a forklift driver.
The claimant referenced pain in her upper back in the Application for personal injury benefits and continues to complain of pain in the mid thoracic spine. Both Dr Wallace and Dr Bodel reported complaints of pain in the interscapular region of the thoracic spine.
Noting the relevant legal test in relation to causation does not require scientific certainty the Panel finds the accident caused the claimant to sustain a soft tissue injury to her thoracic spine.
Both shoulders
There is no pre-accident record of complaint relating to either shoulder. Shortly after the accident on 21 December 2020 Dr Al Faruque recorded pain in both the right and left shoulder.
The insurer acknowledges the early complaints of neck pain following the accident but submits having regard to the absence of any reported shoulder pain beyond the immediate period following the accident that any shoulder injury has resolved.
On examination Medical Assessor Barnsley did not find any evidence of any specific injuries to the shoulders. However, Ms Lorenzotti did experience neck pain on movements of the shoulder and has some minor restrictions of range of movement.
The Panel has determined that the claimant has developed soft tissue injury to both shoulders secondary to the soft tissue injury sustained to the cervical spine in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[29]
[29] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
Both arms
In the Application for personal injury benefits dated 14 January 2021 Ms Lorenzotti reported stiffness and aching pain through her neck, shoulders, arms and upper back. Whilst Taylor Sims physiotherapist reported numbness down the left arm intermittently on 11 January 2021 thereafter the complaints relating to the right arm seem to be related to the right wrist injury.
The Panel considers any complaints of pain relating to either arm were as a result of referred pain from the neck or were associated with the right wrist injury.
The Panel is not satisfied the claimant sustained any frank injury to either arm caused by the accident.
Right wrist
The insurer disputes causation in respect of the right wrist noting there was no recorded complaint of pain in the right wrist until 12 January 2021, nearly one month after the accident. The insurer submits that de Quervain’s tenosynovitis is typically a degenerative condition resulting from overuse.
The right wrist was initially diagnosed as a TFCC tear, but subsequent studies demonstrated this was not the case. Nevertheless, she was treated with a splint and developed right sided wrist pain and complex regional pain syndrome in the right upper limb. The sympathetic dysfunction has now resolved in the right upper limb, but she is left with significant pain, patchy sensory changes and tenderness in the wrist with some mild wrist stiffness.
Ms Lorenzotti has clinical features of de Quervain’s tenosynovitis.
Significantly, on 8 April 2021 Dr Dowd, hand surgeon reported:
“She noticed quite severe wrist pain 48 hours after he accident affecting the ulnar aspect of that wrist. Soon she developed pain over the entire wrist, and she feels she may have been sent very forcefully into the car door near her right hand as she was the driver…”
The Panel notes acute injury, such as the blunt trauma caused by the accident can damage the tendons or the area around them leading to tenosynovitis. Noting that the test of causation does not require scientific certainly the Panel finds, on the balance of probabilities, that the accident caused a soft tissue injury to the wrist with subsequent splinting leading to tenosynovitis and CRPS.
PERMANENT IMPAIRMENT
The panel were satisfied that the treatment she was receiving immediately prior to the accident was not for symptoms likely to be related to her current presentation. In any event, there is insufficient objective evidence of a pre-existing symptomatic impairment in the same region to enable a pre accident impairment rating to be established as required by cl 6.31 of the Guidelines. There is therefore no deduction to be made for any pre-existing impairment.
Cervical spine
In the cervical spine Ms Lorenzotti has complaints of pain with guarding and dysmetria. The claimant’s presentation meets the criteria for DRE Cervicothoracic Category II impairment of the cervical spine which attracts a 5% WPI. She does not have features that enable a radiculopathy to be diagnosed in the upper limbs.
Thoracic spine
In the thoracic spine Ms Lorenzotti has complaints of pain but no guarding, dysmetria or symptoms meeting the required definition of non-verifiable radicular symptoms. There are no symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, and there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes). Accordingly, Ms Lorenzotti meets the criteria for DRE category I impairment of the thoracolumbar spine which attracts a 0% WPI.
Shoulders
The Panel has determined that the claimant has developed soft tissue injury to both shoulders secondary to the soft tissue injury sustained to the neck.
The impairment of both shoulders was assessed using the range of motion method in accordance with figures 38, 41 and 44 on pages 43, 44 and 45 respectively of the AMA 4 Guides as set out in the table below:
| AMA Figure | AROM (degrees) | AROM (degrees) | |||
| Movements | RIGHT | UEI* (%) | LEFT | UEI* (%) | |
| Flexion | 38 | 170 | 1 | 170 | 1 |
| Extension | 38 | 60 | 0 | 60 | 0 |
| Adduction | 41 | 50 | 0 | 50 | 0 |
| Abduction | 41 | 170 | 0 | 170 | 0 |
| Internal rotation | 44 | 90 | 0 | 90 | 0 |
| External Rotation | 44 | 80 | 0 | 90 | 0 |
| Total | 1 | Total | 1 |
*UEI – upper extremity impairment.
The result is an upper extremity impairment of 2%, which represents a WPI of 1%.
Right wrist
Ms Lorenzotti has persisting pain in the region of the right wrist. She has clinical features consistent with de Quervain’s tenosynovitis and this is supported by prior imaging.
The panel considered the correct means of assessing this is by table 29 on page 63 of the AMA 4 Guides as a condition analogous to persistent pain from tenosynovitis. The Panel considered that the persistence of the pain and interference with function of the hand function were most analogous to mild triggering during active range of motion. This represents a 20% impairment of the digit, in this case the thumb at the carpometacarpal joint. A complete impairment of the thumb at the carpometacarpal joint would represent a 16% WPI in accordance with table 18 on page 58 of the AMA 4 Guides. 20% of 16% WPI is 3.2% WPI which is rounded to 3% WPI.
Combined impairment
The combined impairment is therefore 5% for the spine combined with 3% from the thumb and 1% from the shoulders. The total impairment is therefore 9%.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Woo dated 13 May 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI that is not greater than 10% and is 9%:
· right wrist – complex regional pain syndrome (resolved), de Quervain’s tenosynovitis;
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury, and
· both shoulders – soft tissue injury secondary to the injury to the cervical spine.
The Panel determines the following injuries were not caused by the motor accident:
· both arms – soft tissue injury.
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