QBE Insurance (Australia) Limited v Orlando
[2023] NSWPICMP 83
•13 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Orlando [2023] NSWPICMP 83 |
| CLAIMANT: | Aldo Orlando |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 13 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute and review under section 63 of Medical Assessor (MA) Woo’s assessment of 14% whole person impairment (WPI); injuries originally assessed were cervical and lumbar spine and right and left shoulder; error in recording of either findings or diagnosis related estimate (DRE) category in cervical spine; issue of assessment of right shoulder assessment and any reduction for pre-existing impairment; Held – Panel satisfied claimant sustained soft tissue injuries to his neck, lower back and both shoulders; claimant had two year history of shoulder symptoms, saw his GP, had scans and consulted an orthopaedic surgeon in the 3-4 weeks before the accident; claimant had full range of shoulder motion a year after the accident; Panel satisfied claimant’s right should injury was an aggravations of pre-existing condition and any aggravation had ceased; Certificate of MA Woo set aside and WPI of 10% found (DRE II in neck and back). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Woo dated 19 May 2022. 2. Certifies that the degree of Mr Orlando’s permanent impairment resulting from the injuries caused by the motor accident on 16 November 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Aldo Orlando was involved in a motor accident on 16 November 2017. Mr Orlando was driving his car and was stationary waiting to turn left at an intersection. The driver of a truck lost control of his vehicle and collided with the rear of Mr Orlando’s car.
Mr Orlando made a claim for damages against QBE, the third-party insurer of the truck which Mr Orlando says caused his accident.
During the course of that claim, an issue has arisen as to whether the claimant is entitled to damages for non-economic loss. An application was made to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) and on
4 July 2019, DRS Medical Assessor Home determined the claimant’s injuries did not attract a whole person impairment (WPI) of greater than 10%.
The claimant lodged an application for further assessment with the Personal Injury Commission (Commission) following the abolition of the DRS. On 19 May 2022, Medical Assessor Woo determined the claimant had a WPI of greater than 10%.
The insurer was disappointed with that decision and lodged an application for review with the Commission, and on 5 September 2022 a delegate of the President of the Commission determined that there was reasonable cause to suspect an error in the assessment. On 12 September 2022, the President of the Commission convened this Panel to conduct the review.
LEGISLATIVE FRAMEWORK
Mr Orlando’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in part 5.3 of the MAC Act. Non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
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.[2]
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments such as Medical Assessor Woo’s and the Review of medical assessments by this Panel.[3]
[3] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Cervical spine injury and radiculopathy
Assessment of the spine requires consideration of Chapter 3 of AMA 4. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
In Mr Orlando’s claim, he alleges injury to the cervicothoracic and lumbosacral regions.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see table 7). The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria; or
(c) non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
In order for the classification DRE III to be made, there must be two or more of the five signs of radiculopathy as provided for in cl 1.138:
“(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Shoulder impairment
The assessment of upper extremity impairment (UEI) caused by a frank or specific injury or flowing from an injury to the cervicothoracic spine is governed by Chapter 3 of the AMA 4 Guides.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a) flexion;
(b) extension;
(c) abduction;
(d) adduction;
(e) internal, and
(f) external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA 4.
ASSESSMENT UNDER REVIEW
Medical Assessor Woo undertook his assessment on 6 May 2022 and issued his certificate on 19 May 2022. He was asked to assess the following injuries:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) right shoulder - underlying degenerative changes, and
(d) left shoulder – underlying degenerative changes.
The claimant was assessed shortly before he turned 55. He gave Medical Assessor Woo a history of working as a labourer until the age of 25, owning a liquor business, and then working in a garage door installation and service business.
The claimant did not recall any pre-existing injuries however Medical Assessor Woo had the reasons of Medical Assessor Home before him which mentioned bilateral shoulder pain and investigation into that shoulder pain one month before the accident.
The claimant told Medical Assessor Woo about the accident noting he was the driver wearing a seatbelt. He was hit from behind and propelled forward but there was not a second collision. His airbags did not deploy, he exchanged details with the other driver and drove his car to a repairer however his car was later written off.
Police and ambulance did not attend.
The claimant reported to Medical Assessor Woo that he experienced the immediate onset of neck, back and shoulder pain. He said he went to his general practitioner (GP), had an MRI and saw a chiropractor and masseur. He is apparently still seeing his chiropractor.
The claimant reported ongoing pain and stiffness in his neck and back with bilateral shoulder pain which is more severe on the right, and the claimant says he has right arm numbness and weakness which has led him to change duties at work and at home.
On examination of the neck, Medical Assessor Woo found tenderness but no muscle spasm or guarding. He recorded the range of movement in the claimant’s neck as follows:
(a) flexion / extension
(i)flexion – three quarters of normal
(ii)extension – three quarters of normal
(b) rotation
(i)to the left – normal
(ii) to the right – half of normal
(c) lateral flexion
(i)to the left – two thirds of normal
(ii) to the right – two thirds of normal.
Despite the non-symmetrical loss of movement in rotation (to the left normal and to the right half of normal), the Medical Assessor found there was no dysmetria. The Panel suggests that either the Medical Assessor has made a mistake in his measurements which led to the finding of dysmetria, or the Medical Assessor has failed to identify the dysmetria from the measurements he has taken. This is one of the reasons why the Panel was of the view that a re-examination was required.
On examination of the thoracic spine Medical Assessor Woo found no abnormality however when Medical Assessor Woo examined the lumbar spine there was tenderness and guarding. There was also restriction of movement (but no indication whether it was symmetrical or not) although straight leg raising was reduced on the right only. There were no sensory or motor deficits identified, and reflexes were normal. While the right thigh and calf were one centimetre larger than the left, Medical Assessor Woo did not find this clinically significant and did not find evidence of any muscle atrophy.
Medical Assessor Woo observed good muscle tone in the upper arms and forearms with no muscle wasting of Mr Orlando’s dominant right upper limb.
The claimant complained of deterioration over the years in the right shoulder.
Medical Assessor Woo’s comments relating to consistency include:
(a) he says, “I agree that he may have more symptoms in his right shoulder but objective range of movement in the shoulders is not entirely accurate in the circumstances”. He noted that the range of motion in the left shoulder was normal;
(b) Medical Assessor Woo considered “the assessment of range of movement in both shoulders was unreliable with suggestion of self-limitation” and noted there had been significant variations on the range reported by various specialists, and
(c) the Medical Assessor noted “I did not notice any inconsistency”.
Medical Assessor Woo diagnosed soft tissue injuries to all four body parts with aggravation of pre-existing asymptomatic degenerative changes. He assessed WPI as follows:
(a) cervical spine DRE II = 5%
(b) lumbar spine DRE II = 5%
(c) right shoulder 13% less two thirds 9% = 4%
(d) left shoulder 0%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits that Medical Assessor Woo’s assessment of the claimant’s cervical spine should have been DRE category I (not II) on the basis there was no muscle guarding, no spasm and no dysmetria.
The insurer appears to agree with the assessment of the claimant’s lumbar spine assessment as DRE category II.
The insurer submits that Medical Assessor Woo’s assessment of pre-existing impairment in the claimant’s right shoulder was incorrect as he deducted two-thirds which is not the correct methodology set out in the Guidelines.
Finally, the insurer says the claimant’s assessment by Medical Assessor Woo of 14% WPI was inconsistent with previous assessments (Medical Assessor Home’s 2% WPI, Dr Bosanquet’s 0% and Dr Dixon’s 7%) and this inconsistency should have been brought to the claimant’s attention in accordance with cl 1.41 of the Guidelines.
Claimant’s submissions
The claimant says that Medical Assessor Woo’s record of “no dysmetria” is a typographical error bearing in mind the non-uniform loss of range of neck rotation found by the Medical Assessor. In addition, the claimant says that non-verifiable radicular complaints were also found. The Panel notes the claimant has not referred to the Guideline definition of non-verifiable radicular complaints but relies on the AMA 4 version only.
The claimant says the right shoulder was assessed correctly using cl 1.50 and then Medical Assessor Woo deducted an estimate for the pre-existing impairment in accordance with cl 1.32.
The claimant says the results of the claimant’s shoulder impairment are not inconsistent but different due to the deterioration in his condition.
Procedural matters
The Panel met on 3 November 2022 and reported to the parties soon afterwards. The Panel noted that Medical Assessor Woo did not find an accident-related injury to the claimant’s left shoulder and advised the parties that, subject to submissions, it did not intend to consider the left shoulder injury any further.
The Panel further noted that Medical Assessor Woo found all injuries were aggravations to underlying degenerative changes or previous conditions and that neither party raised any issues about that.
Finally, the Panel noted that the real issues in dispute between the parties were:
(a) whether the claimant’s neck injury should be assessed DRE I vs II, and
(b) the assessment of right shoulder impairment.
The Panel drew to the parties’ attention to issues with the documentation and directed the parties to provide certain documents.
Claimant’s final submissions
In a letter to the Panel dated 28 November 2022[5] the claimant advised he did not seek treatment for pre-existing shoulder problems other than seeing Dr Low.
[5] AD6 in the Commission’s file.
The claimant said he had intermittent discomfort and the examination three weeks before the accident was “unremarkable” according to Dr Low. The claimant says he therefore had no pre-existing impairment.
The claimant restated the submissions with regards to the cervical spine.
The claimant did not address the lumbar spine or the left shoulder injury and did not respond to the Panel’s invitation to concede the left shoulder impairment was 0%.
Insurer’s final submissions
The insurer filed a final bundle of documents but no submissions addressing any of the matters raised by the Panel.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form[6] signed and declared as true and correct and dated 20 November 2017 lists the claimant’s injuries as “whiplash” with the location of injuries as “back, shoulders and neck”. The claimant denied any other illnesses or previous conditions to the same part of his body. In section A of the form, Mr Orlando did disclose a claim made 35 years ago but did not recall any additional details.
[6] Page 25 of the claimant’s bundle AD5.
The medical certificate completed by Dr Nakhle on 14 April 2018 (based on an examination dated 20 November 2017) diagnosed “whiplash, lower back pain and shoulders”, denied any previous relevant injury or condition and the doctor advised he had referred the claimant for physiotherapy and chiropractic treatment. The pain diagram has both shoulders as well as the neck and lower back marked up.
Treating medical records and reports
The Concord Medical Centre records commence with an entry on 24 August 2007[7] in respect of the claimant’s attendance for neuralgic headache. There were only seven attendances from that date until 10 October 2017 when the claimant attended for shoulder pains and headaches and an MRI was requested. The claimant attended on 24 October 2017 to discuss the results and a referral to Dr Low was given.
[7] Page 231 of the claimant’s additional bundle AD8.
The next attendance for any complaint was on 20 November 2017 when the claimant attended four days after the accident complaining of neck and lower back pain and
Mr Orlando was prescribed Panadeine Forte.
On 4 December 2017 is the note “forms for neck and back and all OK”.
There were further attendances on 14 April 2018 (forms for recent car accident),
4 August 2018 (ear syringe) and 11 August 2018 (“post mva pains all over neck pain”).
The claimant attended Dr Nakhle on 4 October 2018 to review his August MRI scans and there is this note “discussed MRI neck has no sxs”. The Panel notes “sxs” is the medical shorthand for symptoms.
There are two entries after that on 24 October and 30 October 2018 for unrelated conditions. All other entries relate to the provision of copies of medical records to the claimant’s solicitor and the insurer.
Records from the Menai Medical Centre[8] commence on in 2009 when the claimant attended for treatment after falling through a roof and fracturing his ribs. In
October 2010 Mr Orlando attended for muscular neck pain (with slight restricted motion) and chest pain.
[8] Page 79 of the insurer’s final bundle AD8.
There were a few attendances in 2012 – 2014 and then further attendances commencing on 19 June 2019 however none of these were for any neck, back or shoulder symptoms. On 27 June 2019 the claimant complained of buttock pain when walking but by 27 December 2019 this had resolved.
On 9 January 2020 Mr Orlando attended the Menai practice for dizziness which had started two days earlier. He was given what appears to be a thorough neurological examination and his neck was recorded as displaying “full range of motion” with no rigidity and no pain and 5/5 strength. Blood tests were done, and the claimant was to return for review but there is no record after that date.
The records of the Menai Medical Centre do not mention the car accident or any neck, back or shoulder injury or symptoms.
Inner West Chiropractic (Frank Caristo) records commence 28 February 2009 and end on 10 November 2016.[9] They detail treatment to the claimant’s wrists, knees, hamstrings and so on following golf, broken ribs from a fall, soccer injuries and work issues but there are no treatments for shoulder injuries or complaints that the Panel can see.
[9] Page 55 of the claimant’s bundle AD5.
Records from Sydney Chiro[10] (David Floro) include a handwritten letter from the Chiropractor dated 20 November 2017 which acknowledges the pre-accident shoulder pain and records immediate post-accident symptoms of neck, lower back and both shoulders, right more than the left. 80 treatments were provided between
23 November 2017 and 30 April 2020.
[10] Page 62 of the claimant’s bundle AD5.
Treating specialists
Dr Nakhle referred the claimant to Dr Low on 24 October 2017 for bilateral shoulder pains.[11] The corresponding report from Dr Low notes the right shoulder is “more symptomatic that the left”. He has a history that “the right shoulder has been causing him some intermittent discomfort for 2 years” and mild discomfort in the left shoulder on a few occasions.
[11] Page 115 of the claimant’s additional bundle AD6.
He records that “examination of both shoulders were unremarkable”. Dr Low considered the shoulders were only “mildly symptomatic” and that there was “no rush to intervene” and that he would need to see the claimant again if his pain deteriorated.
Dr Low wrote to the claimant’s GP, Dr Nakhle on 21 April 2020[12] referring to the previous referral for shoulder pain to be managed conservatively. He has a history from the claimant of immediate neck, back and right shoulder pain after the accident and that in the last month “his shoulder pain has intensified” with “constant background discomfort …exacerbated by most movements”.
[12] Page 54 of the claimant’s bundle AD5.
Dr Low reviewed the radiology and notes no progress of the tears between the two MRIs of 2017 and 2020. While identifying “significant pathology” non-operative conservative treatment was again recommended.
Radiological reports
The claimant has provided his pre-accident shoulder MRIs[13] which report:
(a) right shoulder – extensive labral tear, full thickness supraspinatus tendon tear and advanced acromioclavicular joint arthrosis, and
(b) left shoulder – fatty infiltration of the teres minor muscle belly, mild tendinosis of the cuff without significant tear, mild bursal surface fraying of the subscapularis and advanced AC joint arthrosis. Superior labral tear and mild subacromial subdeltoid bursitis.
[13] Page 92 of the claimant’s bundle AD5.
The claimant had an MRI of his cervical spine on 16 August 2018[14] with a history given of “neck pain”. The finding was “multilevel degenerative changes … no significant spinal canal narrowing” but there was nerve root exit narrowing at C3/4 to C5/6 on both sides and on the left at C6/7 with scope for impingement.
[14] Page 84 of the claimant’s bundle AD5.
An MRI was also done of the claimant’s right and left shoulders, on 16 August 2018[15] with the clinical history of bilateral shoulder pain after the accident. A comparison of the right shoulder was made to the 16 October 2017 MRI (pre-accident). The radiologist concluded “stable appearances when compared to 16 October 2017”. There were no fractures seen and the supraspinatus tear was stable, there was an extensive labral tear and AC joint osteoarthrosis with no further progression of the chondral wear in the glenoid. The left shoulder MRI was also considered similar and previous findings stable.
[15] Pages 86 and 88 of the claimant’s bundle AD5.
There was also an MRI of the lumbar spine undertaken on 16 August 2018 due to “leg pain post MVA”. There was disc extrusion at L3/4, advanced degenerative change at L4/5 and L5/S1. There was no significant spinal canal narrowing but “exit foraminal narrowing is most sever on the left at L3/4 and bilaterally at L4/5 and L5/S1”.
An MRI of the claimant’s cervical spine dated 18 February 2020[16] has a history of pain in the cervical spine and right shoulder and a comparison was made with a previous MRI of 16 August 2018. The impression of the radiologist was “the appearances are similar to the prior study. There is facet joint arthrosis and endplate spurring resulting in foraminal narrowing as described.”
[16] Page 50 of the claimant’s bundle AD5.
An MRI of the right shoulder dated 18 February 2020[17] was also compared to the previous 16 August 2018 MRI and was undertaken because of “pain over right shoulder”. The radiologist’s impression is
“high-grade partial-thickness supraspinatus tendon tear which is similar to previously. There is extensive labral tear and there is full-thickness chondral loss of the glenoid with bony spurring of the intra inferior glenoid similar to previously.”
Medico-legal reports
[17] Page 52 of the claimant’s bundle AD5.
Dr Bosanquet – for the insurer
Dr Bosanquet saw the claimant for QBE on 23 November 2018, just over a year after the accident. He has a consistent history of the accident and the immediate onset of neck, back and shoulder pain.
The claimant admitted to shoulder pain present before the accident. He said he had occasional shoulder pain present before the accident caused by lifting weights at the gym. The claimant complained of pain at the back of his neck radiating to both sides. He has pain free days. In the low back there was pain which was his worst area of discomfort and has no pain free days.
On examination, Dr Bosanquet records “in his shoulders there was full flexion, extension abduction and adduction, internal and external rotation”. There was restricted motion in the neck but it was symmetrical and there was also symmetrical loss of motion in the lumbar spine.
Dr Bosanquet diagnosed accident caused soft tissue injuries to the neck, lower back and both shoulders which have aggravated degenerative changes in those areas. He assessed:
(a) cervical spine 5%
(b) lumbar spine 5%.
He noted that while the aggravation of the degenerative changes will cease, the underlying degenerative changes will continue to deteriorate.
Dr Dixon – for the claimant
Dr Dixon in a report dated 11 February 2019[18] noted the claimant’s past history of various medical conditions, a previous fall through a roof in 2013, a finger condition, ultrasound of the left wrist but “no history of neck, shoulder or back conditions”.
[18] Page 34 of the claimant’s bundle AD5.
The claimant reported pain and stiffness in the neck, both shoulders and lower back.
On examination of the neck there was tenderness and stiffness, dysmetria in two planes (lateral rotation left/right and flexion / extension) but no neurological deficits in the upper limbs. This attracted a finding of DRE II.
On examination of the lumbar spine there was stiffness and dysmetria on two planes (lateral flexion and flexion / extension). Spasm was present. Straight leg raising varied by 10 degrees between lower limbs but there were no neurological signs. This attracted a finding of DRE II.
There was tenderness in the right shoulder and stiffness in the left with restricted motion in both, the right more so than the left. The measurements are included in the appendix to these reasons, and they attracted a WPI of 7% for the right and 2% for the left.
The claimant’s total WPI was 17%.
Other assessments
Medical Assessor Home undertook an assessment of Mr Orlando on 4 July 2019 finding 7% WPI on the basis of the following:
(a) cervical spine 0%
(b) lumbar spine 5%
(c) left shoulder 1%
(d) right shoulder 1%.
Medical Assessor Home records this history from the claimant of his shoulder problems:
“… he confirms a past history of bilateral shoulder pain. He recalls the spontaneous onset of pain in both shoulders about three months before the motor vehicle accident. He confirms that he underwent MRI scan investigations of the shoulders in October 2017, one month before the motor vehicle accident. There were persisting symptoms leading up to the subject accident. He recalls an aggravation of symptoms following the accident.”
A consistent history of the accident and the onset of symptoms was given by
Mr Orlando. The claimant noted regular attendance for chiropractic treatment which gave him transient relief and he avoids medication.
The claimant complained of neck stiffness with no upper limb paraesthesia or numbness and pain in the trapezius muscles on each side.
The claimant also complained to Medical Assessor Home of low back stiffness and a constant low back ache with referred pain to the right thigh and shin but no paraesthesia or numbness.
On examination of the neck, Medical Assessor Home found no spasm, no dysmetria, no muscle guarding and no neurological signs.
In the right shoulder there was no muscle wasting but active motion was restricted due to trapezius muscle pain as was the left. Medical Assessor Home noted “clinical impingement signs are negative” and there was normal power in the rotator cuff with resisted movements.
There was no spasm in the thoracolumbar spine but dysmetria was present. There were no neurological signs.
Medical Assessor Home diagnosed:
(a) soft tissue injury to the cervical spine on the background of previously asymptomatic cervical spondylosis;
(b) soft tissue injury to the lumbar spine on the background of previously asymptomatic lumbar spondylosis;
(c) right shoulder – degenerative changes and restricted motion due to trapezius pain, and
(d) left shoulder – underlying acromioclavicular joint changes with bursitis and labrum with trapezius pain limiting shoulder elevation.
In terms of impairment, Medical Assessor Home found the claimant did not satisfy the criteria for a DRE rating of II but because there were symptoms of pain, he did satisfy the criteria for DRE I.
In terms of the left and right shoulder he found a 1% impairment for each shoulder and made no deduction for any pre-existing impairment due to the absence of evidence.
Medical Assessor Home found a DRE category II impairment on the basis of dysmetria but noted there were radicular symptoms or signs of radiculopathy.
RE-EXAMINATION FINDINGS
Mr Orlando attended the re-examination with Medical Assessor Berry on
30 January 2023 alone and confirmed that he is now 55 years of age and is right-handed.
Work history
Mr Orlando left school after completing Year 8. He started work spray painting and then moved into the construction industry. He owned a liquor store until 2003. He then worked in sales of garage doors and set up his own business of garage door installation and service which he continues to do.
Social history
Mr Orlando is a married man with three daughters. The family lives in a two-storey house and he says he is unable to do the lawns and gardens and pays someone to do this for him.
Past history
Mr Orlando has no recollection of any prior motor accidents. He did have a fall while renovating at home but as far as he can recall he did not suffer any significant injury.
He told me that there was a period some years ago when he experienced the onset of pain in both shoulders which arose spontaneously. He had a friend who had shoulder surgery. Because Mr Orlando was troubled by his own shoulder pain, he saw the same doctor. He recalls being referred for an MRI scan and subsequently his pain settled, and he was advised that no further treatment was necessary.
General health
The claimant is not aware of any serious health issues now or at the time of the accident.
History of accident
Mr Orlando was involved in a motor vehicle accident on 16 November 2017. On that occasion he was the driver of an Audi A5 sedan wearing a seatbelt. He was travelling to his property at Wilberforce. He stopped at a traffic intersection on Richmond Road at Riverstone, waiting to turn left, when a truck in the lane adjacent to him lost control and collided with the rear of his vehicle. The back of his vehicle was caved in. He was shaken and dazed but not knocked unconscious.
He was immediately aware of pain in his neck, right shoulder and low back. He contributed this to the fact that his vehicle was spun around and forced forward.
His airbags did not deploy. Police and Ambulance did not attend the accident scene. He was able to self-extricate and exchange details and he then drove his car to his Greenacre business and from there it was towed and written off.
That night, Mr Orlando felt worse in terms of his neck and right shoulder and the right side of his back was stiff. He attended his GP who subsequently referred him for scans and also referred him to a chiropractor who he still attends on a weekly basis. He finds that this helps and if he does not attend for a week or two his neck, shoulder and back get stiff.
Current situation
Mr Orlando said he is still working, however, he has had to employ a worker to do the garage doors as he cannot lift heavy doors and springs and he mainly does the office work and quoting.
He continues to suffer constant pain in his neck, especially if he turns to the right and he also continues to suffer pain in his right shoulder and at times the pain will extend down his arm to his thumb and index fingers.
Mr Orlando has no pain in his left shoulder. He recalls that he had a brief period of pain after the accident, but it resolved very quickly. His back remains painful, and he experiences occasional shooting pain down the outside of the right leg to the shin.
Current treatment
Mr Orlando attends a chiropractor on a weekly basis and avoids medications.
Physical examination
Mr Orlando was 177cm in height and 99kg in weight. Mr Orlando was co-operative and consistent throughout the examination.
Cervical spine
He was tender in the right paraspinal muscles. There was no muscle spasm and no alteration of spinal contour.
Neck range of motion:
(a) flexion was full range and extension was painful and half normal range – this is an asymmetrical loss of motion for this plane;
(b) right rotation was to half range and left rotation was to a third of the normal range – this is also asymmetrical loss of motion, and
(c) lateral flexion to the right and left was reduced by half – this is not asymmetrical loss of motion.
The claimant complained of occasional pain radiating down his right arm to his thumb and forefinger which could suggest a C6 dermatomal distribution of radicular symptoms.
There were no neurological signs in the upper limbs. Reflexes were intact. There was no specific sensory impairment and no muscle wasting or muscle weakness on testing.
Shoulders
There was no pain in the left shoulder on palpation and he had a full range of movement.
There was tenderness in the right shoulder across the top and front of the shoulder.
The following right shoulder active movements were recorded three times with a goniometer:
(a) flexion 110 degrees;
(b) extension 50 degrees (normal);
(c) abduction 110 degrees;
(d) adduction 50 degrees (normal);
(e) internal rotation 90 degrees (normal), and
(f) external rotation 90 degrees (normal).
Thoracolumbar spine
Mr Orlando was tender in the midline from L4 to S1. Examination of his range of movement demonstrated in the two planes of motion required:
(a) flexion was one third of the normal range and extension was half the normal range which is asymmetrical loss of motion, and
(b) lateral flexion both left and right was restricted to half the normal range which is symmetrical and therefore not dysmetria.
The lumbar lordosis was flattened but there was no paraspinal muscle spasm.
The lower limbs were normal in all respects and there was no loss of reflexes, no positive sciatic nerve root tension signs, muscle atrophy or weakness or reproducible sensory loss.
PANEL FINDINGS
Was the claimant inconsistent?
The Guidelines, under the heading of “consistency” say:
“[1.40] Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. 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.
[1.41] 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.”
Mr Orlando did not demonstrate to Medical Assessor Berry any greater range of movement when being informally observed to when he was formally examined. His range of motion measurements were entirely consistent within the examination and the findings of the examination are generally consistent with the findings in the clinical and other records.
Medical Assessor Woo at paragraph 19 of his reasons said there was no inconsistency yet says at paragraph 18 that the range of motion in both shoulders was “unreliable with suggestion of self limitation”. The Panel notes that, when examined by Medical Assessor Woo the claimant had a normal range of motion in the left shoulder with no limitation at all.
The insurer says Medical Assessor Woo’s assessment of WPI was inconsistent with previous assessments and that this inconsistency should have been brought to his attention for comment.
Whether this is “inconsistency” within the meaning of cls 1.40 and 1.41 was dealt with in the case of Flanagan v Allianz Australia Insurance Ltd.[19]
“[66] The decisions in Dominice and Saraceni (the other authority relied upon by the plaintiff) involved quite different circumstances, and do not lead to a different conclusion, in my view. In each case there was a specific finding of inconsistency.
[67] The point can be illustrated by reference to the decision (and the facts) in Dominice. In that case, the claimant underwent a medical assessment in order to determine whether she had suffered any permanent impairment. The medical assessor, upon examination, recorded a number of examination findings that were inconsistent. The first group of inconsistencies related to abnormal physical findings not consistent with the injuries or underlying pathology – these findings being evident upon physical examination as well as observations made by the doctor following physical examination, during the course of the medical assessment (Dominice at [28]-[29]). The second group of inconsistencies were physical restrictions in range of motion of particular body parts said to be injured, that were considerably more restricted than the results recorded by the doctor who assessed the injured party for permanent impairment purposes ten months earlier at [30]). Presented with those inconsistencies, Simpson JA held (at [61]) that the clause required the doctor ‘to investigate the discrepancies between [the claimant’s] presentation to [the first doctor] 10 months earlier and her presentation to him, as well as the inconsistencies he noted in her presentation to him’.
[68] The fact that Dr Davis [medico-legal expert for one of the parties] found mild PCL laxity does not lead to a different conclusion. Again, for a different conclusion to be reached, the plaintiff would need to demonstrate that there was inconsistency, not merely a difference. I am not prepared to infer that a difference between the clinical assessments performed by Dr Davis (on its own, or even grouped with the clinical assessment of Dr Wong), on the one hand, and the Review Panel on the other, in connection with PCL laxity, is an inconsistency so as to engage the requirements of cl. 6.41.”
[19] [2022] NSWSC 1374.
The Panel notes the claimant’s range of motion has varied over time from a completely normal range of motion in both shoulders in December 2018 (the Bosanquet examination) to May 2022 (Medical Assessor Woo) when the claimant had a normal left shoulder but a significantly impaired right shoulder. The claimant’s left shoulder was completely normal when assessed by Medical Assessor Berry and his right shoulder was normal in four of the six planes and he had improved his flexion and abduction since May 2022.
It is the Medical Assessor’s clinical judgment that the differences in range of motion in the five examinations over the last four and a half years are due to the claimant’s underlying degenerative changes in his shoulder and the effects of it being aggravated or exacerbated (or not) from time to time.
What injuries were caused by the accident?
The Panel is satisfied based on the claimant’s history and the contemporaneous post-accident documents that the claimant sustained an injury to his neck, lower back and both shoulders in the accident.
Neck and back
The Panel is of the view that the claimant sustained soft tissue injuries to his neck and lower back against a background of well-established degenerative changes in the cervical and lumbar spine that were, until the accident, symptomatic.
Left and right shoulders
The Panel notes that three to four weeks before the accident the claimant had complained to his GP, had seen an orthopaedic surgeon and had MRI scans of both his shoulders.
The Panel notes the history in Dr Low’s first report that the claimant had been experiencing intermittent right shoulder discomfort for two years and mild discomfort in the left shoulder on a few occasions.
Medical Assessor Berry asked the claimant about this, and Mr Orlando had said he had not needed treatment before or after his shoulders were investigated. The Panel notes there is nothing in the chiropractor’s notes to suggest any treatment to the shoulders in the weeks, months or years before the accident.
The radiology from October 2017 identifies significant degenerative pathology in the claimant’s shoulders and the radiology in February 2020 shows that this pathology has not progressed.
The Panel notes that when examined by Dr Bosanquet in December 2018, the claimant had a completely normal range of motion in the right shoulder as well as the left. When examined by Dr Dixon and Medical Assessor Home in February and July 2019 the claimant was demonstrating mild or minor restriction in motion.
The claimant told Dr Low in April 2020 that in the last month his shoulder pain had intensified and was now a constant discomfort exacerbated by most movements.
The Panel also considers the history given by the claimant to Medical Assessor Home is important. In July 2019, less than two years after the accident, the claimant told the Medical Assessor that he had persisting shoulder symptoms leading up to the accident and sustained an aggravation of his symptoms after the accident.
When all of the claimant’s medical records, reports and assessments are considered, the Panel is satisfied that the claimant:
(a) injured his left and right shoulder in the accident;
(b) the left shoulder injury was soft tissue in nature on a background of significant pathology and the injury has now recovered leaving no impairment;
(c) the right shoulder injury was soft tissue in nature on a background of pre-existing and symptomatic (from time to time) degenerative pathology;
(d) the right shoulder soft tissue injury caused a further aggravation or exacerbation of the pre-existing right shoulder condition, and
(e) this aggravation or exacerbation ceased by December 2018 (when the claimant was examined by Dr Bosanquet).
The Panel is also satisfied that the claimant has from time to time since the accident experienced other aggravations or exacerbations but these are of the underlying degenerative right shoulder condition. This aggravation or exacerbation of the underlying condition has caused restriction of motion and impairment which is unrelated to the motor accident.
IMPAIRMENT ASSESSMENT
Cervical spine
The claimant’s soft tissue neck injury satisfies the criteria for a DRE Category II impairment. Mr Orlando had, when examined by Medical Assessor Berry, non-uniform loss of motion (dysmetria). As a result, he has a WPI of 5% for his cervical spine injury.
The Panel also notes that Dr Bosanquet, Dr Dixon and Medical Assessor Woo all recorded findings of dysmetria and that there is evidence of non-verifiable radicular complaint (radiating pain into the arm, thumb and forefinger).
The claimant currently has no neurological symptoms in his upper limbs and therefore does not have any signs of radiculopathy within the meaning of cl 1.138 of the Guidelines. Mr Orlando does not meet the criteria for a DRE category III.
Lower back
The claimant’s back injury is a soft tissue injury which satisfied the criteria for a DRE category II. When examined by Medical Assessor Berry, Mr Orlando had non-uniform loss of motion which is dysmetria. As a result, he has a 5% WPI for his lumbar spine injury.
The Panel notes that Mr Orlando has been assessed as having a 5% WPI by all of those who have examined him. While Mr Orlando does complain of occasional shooting pain into his right leg, he does not currently meet the criteria for DRE category III because on examination by Medical Assessor Berry there were none of the signs of radiculopathy specified in cl 1.138 of the Guidelines.
Left shoulder
The Panel has found the claimant sustained a soft tissue injury to his left shoulder from which he has recovered. There is therefore no measurable impairment.
Right shoulder
The Panel has found that the claimant sustained a right shoulder soft tissue injury in the accident. This is consistent with the mechanism of injury, a rear end collision where the claimant was the driver with his seat belt going over his right shoulder.
The Panel has however found that the nature of this injury was an exacerbation or aggravation of a previously symptomatic right shoulder condition and that this aggravation or exacerbation ceased in December 2018.
While the claimant has an upper extremity impairment (UEI) to his right shoulder of 8% (5% due to the loss of flexion and 3% due to the loss of abduction)[20] which translates to a WPI of 5%,[21] the Panel is not satisfied this impairment results from the injuries caused by the accident but from the underlying pre-existing condition.
[20] See figure 38 on page 43 of AMA 4 for loss of flexion and figure 41 on page 44 for loss of abduction.
[21] Table 3 on page 20 of AMA 4.
CONCLUSION
The claimant therefore has a WPI of 10% made up of the following:
(a) Cervical spine soft tissue injury 5%
(b) Lumbar spine soft tissue injury 5%
(c) Left shoulder injury – recovered no measurable impairment
(d) Right shoulder injury – no related impairment.
As the Panel has come to a different conclusion to Medical Assessor Woo, it follows that the certificate of assessment should be revoked, and a fresh certificate issued.
APPENDIX
Left shoulder motion
| Plane of motion and normal range | Claimant Doctor Bosanquet Dec 2018 | Insurer Doctor Dixon Feb 2019 | Medical Assessor Home Jul 2019 | Medical Assessor Woo May 2022 | Medical Assessor Berry Feb 2023 |
| Flexion (180) | 180 | 150 | 160 | 60 | 110 |
| Extension (50) | 50 | 50 | 50 | 20 | 50 |
| Abduction (180) | 180 | 140 | 160 | 20 | 110 |
| Adduction (50) | 50 | 40 | 50 | 60 | 50 |
| Internal rotation (90) | 90 | 80 | 80 | 30 | 90 |
| External rotation (90) | 90 | 80 | 90 | 30 | 90 |
Right shoulder motion
| Plane of motion and normal range | Claimant Doctor Bosanquet Dec 2018 | Insurer Doctor Dixon Feb 2019 | Medical Assessor Home Jul 2019 | Medical Assessor Woo May 2022 | Medical Assessor Berry Feb 2023 |
| Flexion (180) | 180 | 130 | 160 | 180 | 180 |
| Extension (50) | 50 | 40 | 50 | 50 | 50 |
| Abduction (180) | 180 | 120 | 160 | 50 | 180 |
| Adduction (50) | 50 | 30 | 50 | 50 | 50 |
| Internal rotation (90) | 90 | 50 | 80 | 90 | 90 |
| External rotation (90) | 90 | 80 | 90 | 90 | 90 |
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