QBE Insurance (Australia) Limited v Rushton
[2023] NSWPICMP 687
•20 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Rushton [2023] NSWPICMP 687 |
| CLAIMANT: | Eloise Rushton |
| INSURER: | QBE (Insurance) Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; panel review of a single Medical Assessor (MA) certificate; dispute as to level of whole person impairment (WPI) of various physical injuries; claimant 31-year-old female who suffered injury on 24 July 2018 when the vehicle she was driving collided with a median strip and a tree after swerving to avoid an unidentified vehicle; injuries to the cervical spine, right hip, left hip, right shoulder, lumbar spine, thoracic spine, left arm, right side ribs and chest alleged; single MA found a 21% WPI; insurer sought a review on the basis that the MA was in error in failing to give sufficient reasoning for his methodology in deductions made for pre-existing injuries; noted prior injuries including a right shoulder injury at a school camp in 2009 and a motor accident in 2010; no evidence of symptomatic permanent impairment in right hip in the year or two prior to the subject accident, and therefore no basis to apply a deduction when applying the Motor Accident Guidelines; similar findings in respect of the lumbar spine and right shoulder; Held – found that the single MA applied deductions for pre-existing impairment in a manner that is contrary to the guidelines; found 37% WPI; original certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Dixon dated 23 January 2023 and issues a new certificate as follows: 1. The following injuries caused by the motor accident give rise to a permanent impairment of 37% and IS GREATER THAN 10%: · cervical spine; · right hip; · left hip; · right shoulder; · lumbar spine, and · thoracic spine. 2. The following injuries caused by the motor accident have resolved and do not result in a permanent imapairment: · left arm; · right side ribs, and · chest. |
STATEMENT OF REASONS
BACKGROUND
Ms Eloise Rushton (the claimant) is a 31-year-old female who suffered injury on 24 July 2018 when she was the driver of a motor vehicle, collided with the median strip and then a tree after swerving to avoid an unidentified vehicle that was travelling contrary to the flow of traffic.
QBE (Insurance) Australia Limited (the insurer) has been allocated management of the claim by the Nominal Defendant, upon whom the claimant lodged a claim in respect of the motor accident. The insurer has a liability to pay the claimant statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%.” This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The claimant alleges physical and psychological injuries caused by the motor accident. The alleged body parts that sustained physical injuries the subject of this dispute are:
(a) cervical spine;
(b) right hip;
(c) left hip;
(d) right shoulder;
(e) lumbar spine;
(f) thoracic spine;
(g) left arm;
(h) right side ribs, and
(i) chest.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Drew Dixon dated 23 January 2023. Medical Assessor Dixon certified the claimant as suffering a whole person impairment of 21% due to injuries caused by the accident to the: cervical spine, right hip, left hip, right shoulder, lumbar spine and thoracic spine. He certified that injuries to the left arm, right side ribs and chest were caused by the accident, however, have resolved.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
12.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 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]
[5] Section 41(2) of the PIC Act.
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
In addition, clinical records of Hornsby Mall Medical Centre and Grace Medical Centre have been submitted to the Panel.
The Panel convened via teleconference on 27 July 2023. The Panel considered that a re-examination of the claimant was required. The claimant was examined by Medical Assessor Michael Couch on 25 September 2023 over the course of two hours at the Commission medical suites.
ASSESSMENT UNDER REVIEW
Medical Assessor Dixon examined the claimant on 19 January 2023 and issued a certificate and reasons on 23 January 2023. He found a 21% whole person impairment.
He found a 10% whole person impairment of the right shoulder, and deducted one half for pre-existing impairment, arriving at a 5% whole person impairment. He found a 0% impairment of the cervical and thoracic spine.
He found a 15% whole person impairment of the right hip, however, deducted one third for pre-existing impairment, arriving at a final impairment assessment of 10%. A 2% whole person impairment of the left hip was found in addition to a 5% whole person impairment of the lumbar spine. He found injuries to the left arm, right ribs and chest were caused by the accident, however, had resolved and do not result in permanent impairment.
SUBMISSIONS
Insurer’s review submissions dated 20 February 2023
The insurer submits that the material submitted to the Medical Assessor demonstrates a significant pre-accident injury history resulting in pre-existing permanent impairment.
It is submitted that the Medical Assessor did not provide sufficient reasoning for the percentage deductions made for pre-existing injuries. The one third deduction for right hip and half for the right shoulder for pre-existing impairment have not been explained and are not appropriate in light of the claimant’s significant, documented history of injury.
The insurer notes the medical evidence has the claimant’s right shoulder pathology dating back to approximately 2009 when she injured her shoulder at a school camp. In addition, a motor vehicle accident of 2010 caused injury to the right hip and an aggravation of the right shoulder.
The insurer refers to the opinion of Dr Dryson (in a report dated 6 February 2015) who assessed the claimant after the first motor accident as suffering a 12% impairment of the right hip and a 1% impairment of the right shoulder (after a 4% deduction for pre-existing pathology).
In respect of the lumbar spine, it is noted that no deduction was made, however a L5/S1 disc protrusion was detected by the claimant’s treating doctors in 2016. Furthermore, the back injury was symptomatic in the months prior to the accident, having obtained referrals from her GP for exercise physiology to treat symptoms in February 2018 (5 months prior to the accident).
Claimant’s submissions in reply dated 1 March 2023
The claimant refutes the insurer’s assertion that Medical Assessor Dixon failed to provide sufficient reasons. The claimant submits that reading the Reasons as a whole makes it plain how the conclusions were arrived at. It is noted that a large amount of pre-accident medical evidence was before the Medical Assessor and he set out a lengthy summary of the pre-accident history.
DOCUMENTS
The Panel has considered all material provided by the parties in their bundles and have also considered all other material provided.
RE-EXAMINATION
The re-examination report of Medical Assessor Couch is set out below:
“History
Assessor Couch commenced by going through the history recorded by Assessor Dixon and confirming, correcting and expanding on this as appropriate. Ms Rushton did not point out any significant errors in the history which he had obtained. Ms Rushton, who presented as an intelligent, well-educated young woman, commented that Assessor Dixon’s examination seemed to her to have been very comprehensive and lengthy
Further pre-accident history
Ms Rushton said that she had various health problems in childhood, including apparently being told that she was ‘legally blind’ at the age of 13. In fact, her vision was improved considerably with spectacles (which she continues to wear) and she described becoming physically active. She had been a keen and accomplished dancer, including ballet and Irish dancing, in which she had competed. From the age of 13 she had taught Irish dancing to younger children, including those with a disability.
She had asthma from childhood and unfortunately this became worse rather than improving in adolescence. It appeared that the first time she had put on significant weight (later leading to a diagnosis of metabolic syndrome) had been after systemic corticosteroids for her asthma.
In 2009, whilst she was on a Year 11 camp from Asquith Girls High School, she fell off a pushbike and dislocated her right shoulder. She was subsequently referred to
Dr David Duckworth, Specialist Shoulder Surgeon, and recalled having some steroid injections. She recalled that recovery took some time but the shoulder eventually returned to normal. She definitely denied having any ongoing shoulder symptoms prior to the subject motor vehicle accident.
In 2010 she was the front seat passenger in a car being driven by her mother. Another vehicle ran through a Stop sign and t-boned their car on the passenger side, just behind her seat. She was taken by ambulance to Hornsby Hospital, where she was an inpatient for about three days. She developed pain in the right hip and was subsequently diagnosed with a torn acetabular labrum (she also recalled that about a week prior to this she had hyperextended her right hip in a dance class, with some hip discomfort). She had a related CTP claim.
In 2010 she was also diagnosed with neurocardiogenic syncope by Dr Masami Miyashita, Cardiologist, and treatment had included the salt-retaining hormone, Florinef.
Following this hip injury, Ms Rushton recalled a good initial result from an arthroscopic labral repair in 2011. She subsequently developed further pain after a fall during physiotherapy and told me that at a subsequent arthroscopy the labrum was removed. Because of persistent symptoms, she subsequently came under the care of Dr Sunny Randhawa (Orthopaedic Surgeon with a special interest in hip conditions). He eventually performed a right hip labral reconstruction with tendon autograft. Recalling this, Ms Rushton described this as ‘so successful – no further need for crutches – dancing, etc – I have not seen him since 2014.’
On further questioning, Ms Rushton said that the right hip had remained completely asymptomatic with normal full function until the subject accident in 2018.
In 2016 she developed severe low back pain after bending down to pick up a towel. She was subsequently diagnosed with an L5/S1 disc protrusion. This was treated conservatively including with physiotherapy and hydrotherapy. She did not have injections or any surgery. She also aggravated her low back condition soon afterwards in a fall down stairs. Ms Rushton described considerable difficulties following this, becoming habituated to opiate analgesics and gaining significant weight.
I have seen the patient health summary and medical records from her previous general practice (Hornsby Mall Medical Centre) from August 2013 until November 2017 (after this, she moved to the Central Coast to live with her mother for a while, and since then had been attending the Grace Medical Care in Bateau Bay). In 2013, worsening of her asthma is described with prescription of a short course of oral prednisone (it is not quite clear how long she took this). Subsequently she was recorded to have gained 25 kg over a four month period and was diagnosed with insulin resistance. In February 2014, right hip and groin pain were mentioned as well as right-sided lumbar pain. In July 2014 she was about to have further surgery to the right hip.
In June 2015, she had received an electric shock in the kitchen and had neck and right shoulder pain with recorded decreased ROM. From Dr Rahman’s notes, it appears that Ms Rushton had ongoing pain in the neck and right shoulder and probably had a WorkCover claim. Right shoulder pain and stiffness was again recorded in January 2016.
In July 2016, there is mention of an admission to Wyong Hospital for ten days with back pain, and a diagnosis of L5/S1 disc protrusion and foraminal stenosis. She subsequently consulted an orthopaedic surgeon but was treated conservatively. At this time she was taking strong opiate analgesia in the form of Oxycontin 20 mg a day and Endone up to 5 mg six hourly, as well as Lyrica.
In August 2016, Dr Rahman noted that she had disturbed sleep, was having regular physiotherapy and was walking with crutches. The diagnosis was insomnia and L5 disc prolapsed. (Presumably the crutches were because of persistent lower back pain).
In November 2016, there was a note that Ms Rushton had cancelled a GP appointment because she was in hospital after falling down stairs. She was discharged from Royal North Shore Hospital with the alternative opiate analgesic, Tapentadol (Palexia) 100 mg twice daily.
In 2017, there were various attendances with a diagnosis of chronic pain and she was subsequently referred to the Royal North Shore Hospital Pain Management and Research Centre. Ms Rushton confirmed to me that she had completed the intensive multidisciplinary ADAPT pain management program, with great benefit. She had been able to get off opiate analgesics and became more physically active.
Soon after this she had a holiday in New Zealand where she was very physically active and tolerated this well. Subsequently she had a two-month holiday in Europe, which included a lot of walking and some hill climbing. She returned from this holiday having lost considerable weight, which she attributed to increased physical activity. Subsequent records from the Grace Medical Centre in Bateau Bay confirmed weight loss – she was weighed at 120 kg on 30 November 2017 and 109 kg in February 2018 on her return from Europe.
There is no mention of right hip symptoms in the Hornsby Mall Medical Centre records, after she had recovered from the labral reconstruction by Dr Randhawa in August 2014. There is no mention of hip symptoms in the records of the Grace Medical Care from late 2017 up to the time of the subject accident. It seems clear that the reference to chronic pain in the GP records in 2017, prior to her attending the ADAPT program, referred to back pain.
On further questioning, Ms Rushton herself said that prior to the accident in 2018, she was “the best I’d ever felt, fantastic. It shows that a lot of it is mind over matter.” She was working full-time in her own business as a nanny to a family, and also doing some part-time swimming teaching in Top Ryde. She had joined a gym on her return from Europe and was going at least five times a week, including cardiovascular work, weights, yoga classes and kickboxing. She confirmed that she could kickbox with her right leg (strongly suggesting no significant right hip symptoms). She said that in the week before the accident she was able to leg press 90 kg.
In addition to her work, she was studying towards a Bachelor in Social Work at the Australian College of Applied Psychology (ACAP). She was in the second year at the time of the accident, but had not been able to complete this course since then. She said that with her past history of teaching dance since the age of 13, she had been accepted to do a Diploma in dance teaching at the Australian College of Dance.
History of accident and subsequent symptoms, treatment and progress
Ms Rushton described a very frightening high-speed crash on the Pacific Highway on 24 July 2018. It was after 8 pm and dark. She was alone, driving a Suzuki Grand Vitara at an estimated 80 km/hr in the right hand lane, preparing for a right turn towards Lake Munmorah. She recalled hearing a lot of car horns and seeing cars around her swerving, and then saw some oncoming headlights. (She understood that an intoxicated driver was driving south in the wrong direction in her lane.)
She initially swerved to the left but then ‘I panicked and wondered ‘what if they had kids’ and swerved to the right.’ She was not sure if there had been an actual impact with the offending vehicle and said that subsequently she was told that she had swerved out of control. Her vehicle had rolled approximately seven times across the wide grass median strip, across both southbound lanes, and ended up on the grass verge on the other side and hit a tree.
Ms Rushton thought that she was unconscious for a short while and came to with the car the right way up and hearing a man’s voice telling her not to move. She had to be cut out of her car by emergency services and was taken by ambulance to John Hunter Hospital. She described a delay in receiving medical attention there, stating ‘I was screaming too much – they put me in a storage cupboard – the paramedics complained and wanted to take me away and back to a hospital in Sydney.’
She was an inpatient at John Hunter Hospital for about six days. Ms Rushton confirmed the history of subsequent treatment and progress detailed on page 5 of Assessor Dixon’s certificate. Her main recollection is that she was given information about treatment for PTSD. Because she immediately developed right hip pain, the hospital had arranged a follow up appointment with her previous treating hip surgeon, Dr Randhawa – she thought that she had consulted him the following week. In October 2018, Dr Randhawa performed a PRP (protein rich plasma) injection to the right hip.
Ms Rushton recalls that because she was self-employed in her nanny job, she wanted to do some work. She said the family for whom she was providing services was very accommodating – her mother drove her to this family’s home while she was still ambulating on crutches. The children’s mother had just had another baby and was at home and Ms Rushton was mainly providing company and supervising activities for the children.
Right hip pain persisted and Dr Randhawa performed total right hip replacement (THR) in December 2018. (Ms Rushton said that the CTP insurer did not fund this – this was covered by her own private health insurance and she paid the excess.)
Ms Rushton said that she was very pleased with the THR – ‘the best thing I’ve done – fantastic.’ On questioning, she confirmed she was still using a walking stick because of low back pain and left hip pain, rather than the right hip.
Ms Rushton described other injuries/symptoms from the crash, including pain in the left hip, new, different and worse low back pain, upper thoracic back pain, pain and stiffness in the neck, pain in the shoulder, and pain in the chest wall/ribs. She told me that she had also consulted Dr Randhawa about the left hip – he apparently had recommended a labral repair and thought that she would eventually need THR on that side as well. She also had successful gastric sleeve surgery in February 2022, and had lost weight to her current 76 kg.
Activities since the subject accident
Ms Rushton said that apart from a brief return to limited duties as a nanny with the same family, while she was still on crutches, and prior to THR, she had not managed to sustainably work in any capacity since the accident. She said that she had tried two jobs, first working from home as a fundraiser, and then working from home doing recruitment work for a nanny agency. She said that both employers were generally pleased with her, but she was not able to continue because she had times when she was in more pain and was not able to be reliable. She said that she eventually ‘listened to my doctor who said I was not fit to work.’
Ms Rushton also confirmed that she had not sustained any further injuries or been involved in other accidents subsequent to the 2018 crash. She does now have a 3-year-old daughter, delivered by caesarean section (because of precautions following right THR and her new left hip symptoms). Her daughter is healthy but Ms Rushton is quite limited in what she can do with her.
Current symptoms
Ms Rushton said that currently her left hip was bothering her most, followed by the right shoulder, both her upper and low back and that she was generally pleased with her right hip following the THR in 2018. She described these symptoms in more detail as follows:1. Left hip
Ms Rushton described pain in the left groin. This is constant and has become worse over the last two years or so. Pain is aggravated by weightbearing, and she does not have any pain-free days or periods of time.
2. Right shoulder
She described restricted range of movement and ‘clunking’. She said that she had consulted Dr Duckworth, who was not sure what the problem was and did not want to operate further (in discussion it seems that this was partly because of her various other problems). She cannot sleep on her right side and if she rolls on her right side in her sleep she is woken with tingling in the arm.
3. Thoracic back pain
Ms Rushton described burning between the upper parts of the scapulae. This is intermittent and worse when the right shoulder is painful. This pain is worse if she elevates her arms or if she lifts anything heavy.
4. Low back pain
At this stage of the interview, I asked Ms Rushton to stand up and point to the painful areas of her back. Afterwards she lowered herself slowly and carefully back into the chair. She described pain in the whole lumbosacral area, bilaterally. She described pain as constant and very sharp. She cannot sit still for any length of time – when she was working from home, she estimated her sitting tolerance at a computer as less than 20 minutes. I asked her if she had tried working lying on the bed – she said that her employers at the time did not allow her to do this when using a video link, because of appearances.
Low back pain radiates all the way down the left lower limb and to a lesser extent the right thigh. The whole left lower limb also goes numb and weak and she said that ‘sometimes someone has to help me move it’. This occurs every day.
On further discussion of these episodes, it seems that she first experiences numbness in the left lower limb and said that she can actually not feel touch during this time. This is followed by severe pain. She said she had been referred to either a neurosurgeon or neurologist, but could not afford to go. (She said that the insurer had not responded to correspondence from her solicitors about this.)5. Right hip
Ms Rushton in fact described her right hip as ‘fantastic’. At this stage of the interview I completed the symptom part of Table 65 from Page 87 of AMA4, used for rating hip replacement results. Under pain, she described a ‘weird sensation and aching in cold weather’ in the region of the right hip, and I rated pain this as ‘slight’. Returning to function, she said that she has a slight limp at times.
She sometimes uses a stick in her right hand for additional support of the right hip, if on uneven ground. She estimated her tolerable walking distance without a break as 500 metres. Following THR she continues to avoid flexion of the right hip beyond 90 degrees – because of this she has some difficulty reaching shoes and socks and cannot sit on low chairs/seats. As to stair-climbing, they only have two steps in the home, but she would probably use a hand rail if she needed to negotiate more steps.
Present Activities
Ms Rushton said that she, her partner and 3-year-old daughter live in her father-in-law’s house (he is currently living with his own partner). She said that she does not manage to do any significant housework and the house is very messy. Her partner does some. She cannot pick up her 3-year-old daughter-she has to either ask her to go to her father or she will sometimes climb up on Ms Rushton’s lap when she is sitting. She pays a cleaner when they can afford it. (Apparently the insurer had not paid for domestic assistance.) She said that the only meal cooking she does is using a slow cooker and she cannot stand in the kitchen for any length of time to prepare food. She has been able to change nappies as long as she uses a table at the right level.
Present treatment
Ms Rushton said she is currently taking about four Panadol Osteo per day and occasional Panadeine Forte if pain flares up. If pain gets particularly severe she will take Endone – perhaps every two weeks. She also takes the SSRI Sertraline 100 mg daily for PTSD and Valium as needed. She is currently not taking Florinef – she stopped this with her previous pregnancy and said they were considering having another baby.
Lifestyle factors
Ms Rushton does not smoke cigarettes and drinks minimal alcohol. She said she was sometimes using alcohol for pain relief prior to the ADAPT program but not recently.
Physical examination
(I needed to leave the consulting room briefly prior to the physical examination – when I returned, I found Ms Rushton leaning forward on the desk for support – she said this was because of low back pain.)
Ms Rushton attended alone (she explained that her partner had driven her to the appointment and was parked and looking after their 3-year-old daughter). She was wearing a loose dress and the top could be unbuttoned for proper examination of her neck and shoulders. She had flat shoes, wore spectacles, her hair was up and she wore no makeup. She walked in using an aluminium stick with a wide rubber/plastic foot – on questioning she said that she uses this most of the time, including around the home.
She appeared to be intelligent and well-educated, was cooperative throughout and gave a clear specific history and direct answers to my questions. She did show definite pain behaviours at times, including crying out and grimacing, and became very tearful when describing the frightening accident.
There was no evidence of deliberate self-limitation and I considered that her behaviour was consistent with a history of previous presumed central pain sensitisation, PTSD and considerable difficulties experienced since the accident. She was able to sit during the interview, but moved around in the chair and appeared to be in some discomfort at times. She moved slowly and carefully when climbing on and off the examination couch, and appeared to be in pain when doing this.
Cervical spine
Posture of the head and neck was within normal limits. On palpation she described moderate tenderness over the mid-cervical spine. Both trapezius muscles were soft to palpation but the right was moderately tender. There was quite marked but symmetrical restriction of active range of movement (AROM) of all cervical spine movements. Flexion and extension were both a third of normal, although extension appeared to be more painful, accompanied by crying out. Lateral flexion was half of normal bilaterally and rotation a third to half of normal bilaterally. (Thus there was no evidence of dysmetria, muscle guarding or spasm.) Ms Rushton was not describing non-verifiable radicular complaints in the upper limbs. As can be see below under ‘Upper extremities’, there were no objective signs of cervical radiculopathy.
Thoracic spine
Posture of the thoracic spine was within normal limits. On palpation she reported moderate tenderness over the proximal thoracic spine, but not distally. Spinal rotation (which mainly occurs in the thoracic spine) was tested with Ms Rushton seated on a chair to stabilise the pelvis. Rotation was full to the left but only two-thirds of normal to the right, accompanied by upper thoracic spine pain (thus there was observable dysmetria in the thoracic spine).
Lumbosacral spine
She described marked tenderness on palpation over the whole length of the lumbosacral spine. There was marked painful restriction of AROM of all lumbosacral spine movements. Flexion and lateral flexion bilaterally were reduced to a third of normal. Extension was rather more restricted to a quarter of normal. All movements appeared to be painful. There was no evidence of true lumbar paraspinal muscle spasm – palpation of these muscles while she walked slowly showed that the muscles on the weight-bearing side relaxed normally with each step. (Thus, there was evidence of dysmetria of the lumbar spine.) Ms Rushton was also describing left lower limb symptoms, consistent with non-verifiable radicular complaints.
Upper extremities
Palms of the hands were warm and moist (she said this had been the case since the accident – consistent with anxiety) and very soft, without any callouses. Both upper arms measured equally in girth at 32 cm and both forearms equally at 27.5
(Ms Rushton said that she was naturally left-handed – for example for sport, but had been taught to write with her right hand).
Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Power was normal and symmetrical in both upper limbs, including grip strength and hand intrinsic muscles. Light touch sensation was preserved bilaterally (thus there was no evidence of cervical radiculopathy).
The left shoulder was entirely normal with a very full AROM, as tabulated below.
(Ms Rushton said that she had always tended to be hypermobile). In contrast,
Ms Rushton described moderate tenderness to palpation over the right shoulder, particularly anteriorly over the glenohumeral joint. There was marked and reproducible restriction of AROM in the right shoulder, as measured with a goniometer.
Right Left Flexion 50° 180° Extension 20° 70° Abduction 50° 180° Adduction 10° 50° External Rotation 60° 100° Internal Rotation 60° 100° (Rotations in the right shoulder were tested at approximately 40 degrees of abduction.) I considered the right shoulder to be too irritable to use the usual impingement tests. (I consider the measured AROM above to be reliable and to be an acceptable basis for WPI assessment.)
At this stage of the assessment, I asked Ms Rushton how her right shoulder affected self-care. She described difficulty dressing and relies on loose and stretchy clothing. She said that in fact she does not shower – she put this down to her PTSD – she said that she finds the sound of a shower or even of rain terrifying, and also finds the sensation of a shower on her skin very unpleasant. She will occasionally have a bath at her mother’s home (there is no bath in their home). She mainly relies on using baby wipes for hygiene.
Lower extremities
Ten centimetres proximal to the patella, the right thigh measured approximately 1.5 cm bigger than the left. The right calf measured 38 cm and the left 39.
Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was normal and symmetrical. Light touch sensation was preserved in both lower limbs, although she described sensation as more marked on the right lower limb.
There was a well-healed scar from right THR. AROM of the hips was measured with a goniometer, as tabulated.
Right Left Flexion 80° 80° Extension 0° 0° Abduction 40° 30° Adduction 30° 10° Internal Rotation 40° 10° External Rotation 60° 60°
Movements of the right hip were essentially pain-free. In the left hip, Ms Rushton described some pain at the limits of flexion and adduction, and internal rotation was apparently very painful, accompanied by crying out.
Normally I would test walking on tiptoes and heels and squatting – this was not appropriate in this case, because Ms Rushton appeared to be in marked pain with some distress after this quite simple examination (in which all movements were performed voluntarily and actively). I did ask her to try walking on the carpeted floor of the office without her stick – she could take a few steps but felt insecure. She was slightly unsteady on Romberg’s test (standing to attention with eyes closed). She was apparently unable to perform a tandem walk (walking in a straight line, heel to toe).
Assessor’s impression after this examinationThis is a complex and difficult case. Ms Rushton appears to have been physically active as a child and in particular enjoyed dancing, despite various reported health problems.
She had a difficult time in her twenties following a right hip injury in the 2010 motor vehicle accident, but eventually describes a very good result from labral reconstruction by Dr Randhawa in 2014.
She again had a very difficult period following a low back injury in 2016, became opiate dependent and put on a great deal of weight. Fortunately, she eventually did very well with the well-respected ADAPT program at the Royal North Shore Pain Clinic in 2017, and gradually became much more physically active. She ceased all regular analgesics, and there is no mention of low back pain in her GP records from her completion of the ADAPT program until the subject accident.After an active holiday in New Zealand and two months in Europe, she managed to lose weight and eventually got back to a good level of fitness activity, including regular gym work. She described dong regular kickboxing (including with the right leg) prior to the subject accident. Ms Rushton was clear that she was very happy with the right hip at the time and there had been no suggestion of her needing early total hip replacement (THR).
She gives a clear description of a very severe and frightening high speed crash in 2018 (which could easily have been fatal). She described multiple injuries, with the early onset of right hip pain and also developed PTSD (from her history, her progress may have also been affected by difficulties with the insurer).
In the subject accident, she sustained further injury to the right hip which resulted in the requirement for total hip replacement. Using the standard scoring system in Table 65 Page 87 of AMA4, she scored 72 points, which gives a ‘fair result’, resulting in a 20% WPI.
As the insurer notes, Dr Evan Dryson (for her solicitor in relation to the 2010 motor vehicle accident) described some ongoing symptoms in the right hip, with moderate restriction of AROM, and assessed 12% WPI by ROM. However, Dr Dryson seems to have mis-applied Table 40 of AMA 4, by adding separate impairments for loss of AROM in each plane. Only the single worst impairment must be used-in this case ‘moderate’ giving 10% LEI or 4% WPI for either 60 degrees flexion or 0 degrees external rotation.
I also note that Dr Dryson examined the claimant only 5 months after the labral reconstruction by Dr Rhandawa- he commented on red (ie recent) surgical scars. From Ms Rushton’s history to me, it seems very likely that her right hip improved further after Dr Dryson’s examination-noting that 5 months post-surgery is unusually early to assess permanent impairment.
I have seen no evidence of restricted AROM, or symptomatic permanent impairment, in the right hip in the year or two prior to the subject accident, and consider that there is no basis for making a deduction. (Even if a 4% WPI deduction were made, based on
Dr Dryson’s examination findings, it would have little effect on the Panel’s overall impairment assessment). Also, a fractional or percentage deduction for possible pre-existing WPI (Assessor Dixon applied one-third) cannot be used under the Guidelines.Other injuries sustained in the accident were:
· ‘Cervical spine – soft tissue injury – this is now rated as DRE I, giving 0% WPI;
· Soft tissue injury thoracic spine.
Although Assessor Dixon in January 2023 assessed this as DRE I, I found painful asymmetric restriction of thoracic spine rotation. With dysmetria, this is classified as DRE Category II, giving 5% WPI.
· Lumbar spine.
I found dysmetria and non-verifiable radicular complaints. Like Dr Dixon, I assigned this to DRE Lumbosacral Category II, giving 5% WPI. She describes an excellent recovery from her previous low back pain after the ADAPT program in 2017. There is no mention of low back pain in GP records from then until the motor accident, and she was not being prescribed regular analgesics (she did apparently take some Mersyndol at night for headaches in April 2018). The MAG specifically state that ‘If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored’. I consider this to apply here.
· Right shoulder.
I found marked and reproducible restriction of AROM in the right shoulder with a completely full, painless range in the uninjured left shoulder. Restriction was slightly worse than found by Assessor Dixon 8 months earlier-active range of motion in a painful injured shoulder can vary from time to time, and I was confident in my findings. (Assessors are also instructed to primarily rely on their findings “on the day”).
Applying my tabulated range of movement to Figures 38, 41 and 44 of AMA4, there is 18% upper extremity impairment which converts to 11% WPI. Assessor Dixon applied a one-half deduction for supposed pre-existing WPI - this method of apportionment is not permissible. The Insurer points out that Dr Evan Dryson assessed 5%WPI by ROM for the right shoulder in 2015, although he deducted 4% WPI because of the dislocation in 2009 when she fell off a pushbike, (I have applied his recorded AROM to Figs 38,41 and 44 of AMA and confirm 9% UEI or 5% WPI).
I note that she had residual symptoms for a while, and consulted Dr David Duckworth, and received corticosteroid injections. She described an uneventful recovery - this is what would be expected in a teenager. Despite Dr Dryson’s February 2015 report, I have seen no mention of shoulder pain in the GP records for 2016, 2017, or 2018 before the subject accident. I have also seen no other evidence of a pre-existing symptomatic condition of the right shoulder or restriction of AROM at the time of the accident, which would justify a deduction.
I therefore assess 11% WPI for the right shoulder.· Left hip
It is probable that Ms Rushton sustained an injury to the left hip from her seatbelt when her car rolled over several times at high speed. She now reports the left hip as in fact more troublesome than the right. There was painful restriction of AROM in the left hip (particularly in adduction and internal rotation). Applying my tabulated range of movement to Table 40 of AMA4, there is a ‘mild impairment’, giving 2% WPI.
Finally, the above regional assessments combine using the Combined Values Chart to give 37% whole person impairment.”
CONCLUSIONS
The Panel agrees with the examination findings and assessment of whole person impairment of Medical Assessor Couch.
We are not satisfied that there should be any deduction pursuant to cl 6.31 of the Guidelines as submitted by the insurer. Whilst there is evidence of previous impairment a number of years prior to the subject accident, the medical material before the Panel does not provide objective evidence of a pre-existing symptomatic impairment in the same regions assessed at the time of the motor accident.
The claimant had increased her activities in the year prior to the accident, as set out in the history above and her function had improved. The evidence suggests that is more likely than not that there was no symptomatic permanent impairment at the time of the subject accident.
The certificate issued by Medical Assessor Dixon on permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
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