QBE Insurance (Australia) Limited v Subocz
[2024] NSWPICMP 295
•13 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Subocz [2024] NSWPICMP 295 |
| CLAIMANT: | Emilia Subocz |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 13 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical review of certificate of Medical Assessor (MA) Bodel; the claimant suffered injury in a motor cycle accident on 9 May 2017; the dispute related to the assessment of whole person impairment (WPI) under the Motor Accidents Compensation Act 1999 of cervical spine, lumbar spine, both shoulders, right hip, both knees, left ankle, and chest-undisplaced fracture; MA Bodel assessed 21% WPI; dispute as to causation of cervical spine, lumbar spine, both shoulders, both knees and right hip; Held – straightforward presentation; causation established other than for right knee; soft tissue injury; cervical spine DRE II giving 5% WPI; lumbar spine DRE II giving 5% WPI; right shoulder 1% WPI; left shoulder resolved; right hip 3% WPI; left knee 3% WPI, left ankle 4% WPI; chest- undisplaced fracture resolved; certificate of MA Bodel revoked and certified injures caused by accident gave rise to 22% WPI. |
| DETERMINATIONS MADE: | Review Panel Certificate 1. The Review Panel revokes the certificate of Medical Assessor Bodel dated 23 October 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total is greater than 10% and which is 22%: · cervical spine – soft tissue injury; · right shoulder – soft tissue injury; · lumbar spine – soft tissue injury; · right hip – soft tissue injury, trochanteric bursitis; · left knee – soft tissue injury, and · left ankle – soft tissue injury. 2. The Panel finds the following injury caused by the accident has resolved: · chest – undisplaced fracture, and · left shoulder – soft tissue injury. 3. The Panel finds the following injury was not caused by the accident: · right knee – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
On 9 May 2017 Ms Emilia Subocz (the claimant) was riding her 250 cc motorcycle along Cleveland Street when it was struck by a garbage truck (the accident). Ms Subocz sustained injury.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Subocz under the Motor Accident Compensation Act 1999 (MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1] This dispute was referred to Medical Assessor Bodel.
DOCUMENTATION BEFORE THE REVIEW PANEL
[1] Sections 57 and 58 of the MAC Act.
On 6 November 2023 the solicitor for the insurer uploaded a bundle of documents indexed and paginated from pages 1 to 97 and labelled insurer’s bundle.
On 27 November 2023 the solicitor for the claimant uploaded a bundle of documents indexed and paginated from pages 1 to 94 and labelled claimant’s bundle.
On 7 March 2024 the Panel directed the claimant on or before 26 March 2024 to upload to the portal the following:
· the clinical notes of any general practitioner (GP) consulted by the claimant in the period three years prior to the accident to date;
· reports of any bone scans undergone by the claimant in the period three years prior to the accident to date, and
· any additional records sought to be relied upon by the claimant in one indexed and paginated bundle or to advise if no further records are to be relied upon.
On 7 March 2024 the Panel directed the insurer on or before 26 March 2024 to upload to the portal any additional records sought to be relied upon by the insurer in one indexed and paginated bundle or to advise if no further records are to be relied upon.
On 25 March 2024 the insurer uploaded to the portal additional documents paginated from pages 1 to 38.
On 8 April 2024 the claimant uploaded to the portal the clinical notes of Dr Nguyen from 2014 to date. The claimant advised she did not intend to rely on any other additional records.
RELEVANT LEGAL AUTHORITY
Permanent impairment dispute
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) . The Guidelines are effective from 1 June 2018 and relate to motor vehicle accidents that occurred between 5 October 1999 and
30 November 2017. 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 in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[3] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[4] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[4] [2016] NSWCA 229, McGiffen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[5] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[5] [2021] NSWSC 804, Kinchela.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Bodel issued a certificate dated 23 October 2023.[6] The following injuries were referred to Medical Assessor Bodel for an assessment of the degree of permanent impairment caused by the accident:
[6] Insurer’s bundle p 7.
· cervical spine – radicular symptoms, left foraminal stenosis with impingement of the left C6/7 nerve roots, asymmetry of movement and soft tissue injury;
· left shoulder – soft tissue injury;
· right shoulder – soft tissue injury;
· chest – undisplaced fractured rib;
· lumbar spine – right S1 radiculopathy, muscle atrophy, sensory loss;
· right hip – soft tissue injury;
· left knee – soft tissue injury;
· right knee – soft tissue injury, and
· left ankle – tarsal tunnel syndrome, compression of the medial plantar nerve.
At paragraph 23 of the certificate Medical Assessor Bodel provided the following opinion in respect of causation:
“The claimant has suffered a soft tissue injury to the cervical spine.
She has had aggravated degenerative disc disease in the cervical spine and also in the lumbar spine.
She has rotator cuff pathology in the region of the right shoulder with a rateable restriction of right shoulder movement, and she has suffered a direct blow to the region of the right knee in the fall from the motorbike, leaving her with some restricted range of knee movement on the right.
There is some contusion at the region of the right hip with clinical signs suggesting damage to the gluteus medius, but no rateable restriction of hip movement. There is a restricted range of left ankle and subtalar movement associated with this injury.
I am satisfied that there is a causal relationship between the motor vehicle accident and her ongoing complaints.”
Medical Assessor Bodel certified the following injuries were caused by the accident:
· cervical spine - radicular symptoms, left foraminal stenosis with impingement of the left C6/7 nerve roots, asymmetry of movement and soft tissue injury;
· right shoulder – soft tissue injury;
· lumbar spine – right S1 radiculopathy, muscle atrophy, sensory loss;
· right hip – soft tissue injury;
· right knee – soft tissue injury, and
· left ankle- tarsal tunnel syndrome, compression of the medial plantar nerve.
Medical Assessor Bodel certified the following injuries caused by the accident have resolved:
· chest - undisplaced fractured rib;
· left knee – soft tissue injury, and
· left shoulder – soft tissue injury.
Medical Assessor Bodel assessed the cervical spine as meeting the DRE Cervicothoracic Category II resulting in a whole person impairment (WPI) of 5%. He assessed the lumbar spine as meeting the DRE Lumbosacral Category II resulting in a WPI of 5%. He assessed a 6% WPI of the right upper extremity arising out of injury to the right shoulder, 4% WPI of the right lower extremity arising out of injury to the right hip and the right knee and a 4% WPI of the left lower extremity arising out of injury to the left ankle. This resulted in a total WPI of 21%.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Bodel pursuant to
s 63 of the MAC Act was lodged by the insurer on 6 November 2023 within 28 days of the date on which the certificate of Medical Assessor Bodel was made available to the parties.[7]
[7] Section 63(7) of the MAC Act.
On 30 November 2023 the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[8]
[8] Section 63(2B) of the MAC Act.
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. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10]
EVIDENCE BEFORE THE REVIEW PANEL
Pre-accident treating medical evidence
[10] Section 63(3A) of the MAC Act.
The claimant saw Dr Noel Dan, neurosurgeon on 17 July 2008.[11] He noted she had not proceeded with a block because she had an accident. Dr Dan reported she was pulling against another woman on a beach when she fell onto the right buttock. The right side became painful and she developed pins and needles in the right leg and calf muscles. The following day she developed pins and needles radiating down the right upper limb to the hand. She had acupuncture. Symptoms improved. She had a stiff neck and also developed pain at the left elbow. Dr Dan recommended an MRI scan.
[11] Insurer’s bundle p 83.
Dr Lea-Anne May, rheumatologist
On 9 May 2011 the claimant saw Dr Lea-Anne May, rheumatologist. She reported the following history:
· spinal injuries at age 15 when concrete pipes collapsed crushing her head and spine, possibly causing an L5 fracture and ongoing back pain;
· the claimant saw a neurosurgeon in 2007. He noted some weakness of her right hand and left leg and foot and suggested the possibility of future surgical intervention, and
· a further injury when she was participating in a tug of war on sand and fell onto her right buttock developing immediate pain in her right buttock, back, and later the mid back and neck area following by pins and needs in the right leg, right hand and down her left side.[12]
[12] Insurer’s bundle p 91.
Dr May reported she had pain and numbness of her right hand at night particularly affecting the palm and back of her hand. Her fingers felt stiff and tight to use with possible dystonia but no clear cramping. She reported restless, fidgety legs. She described pain around the shoulder, but the worst pain was at the low back and into the right buttock. She noted chronic pain dating back over 15 years as a result of the L5 vertebra crush fracture but without obvious neurological compromise.
In a report dated 20 June 2011 Dr May clarified the claimant’s main concern as pain throughout the day affecting her function at work, particularly at the right buttock and low back when sitting.[13] At night she described sensory symptoms in her right hand including numbness, tingling, burning and shooting pains.
[13] Insurer’s additional documents p 4.
On 16 August 2011 Dr May reported the MRI scan showed evidence of previous compression fracture at L4 and L5 and facet joint irritation at L4/5 and L5/S1 levels.[14] There was no nerve root impingement at L4, L5 or S1 levels and no evidence of cord involvement. She noted effusion at the facet joints.
[14] Insurer’s additional documents p 5.
On 29 January 2013 Dr May reported new symptoms at the right calf which felt tight and swollen and intermittent numbness and tingling of the foot. There was tightness in the right shoulder region. She concluded the problems were essentially biomechanical in nature.[15]
[15] Insurer’s additional documents p 7.
Justine Trethewey, physiotherapist
In a report dated 1 March 2013 Ms Trethewey stated she had treated the claimant for low back pain, right buttock, right calf/lateral leg pain and right shoulder pain.[16] On 29 July 2013 Ms Trethewey suggested the possibility of an underlying SLAP lesion of the right shoulder.
[16] Insurer’s additional documents p 9.
On 24 July 2015 Ms Trethewey provided treatment for left scapula region pain which commenced one and a half years earlier when putting her baby into a car seat. She thought the effect of the original vertebral or rib joint injury was continuing due to poor spinal and scapula biomechanics.[17]
[17] Insurer bundle p 74.
Dr Vincent Nguyen, general practitioner
Ms Subocz saw Dr Nguyen on 1 August 2015 in respect of back muscle pain. He prescribed Feldene Capsule.
On 8 August 2015 Dr Nguyen reported pain in the left scapula. Her referred the claimant for an ultrasound.
On 8 February 2017 Dr Nguyen reported upper back muscle pain after exercise on the weekend.[18]
Post accident treating medical evidence
[18] Dr Nguyen records p 9.
Ambulance report
The Ambulance report relating to the accident on 9 May 2017 states:
“O/A 39 yo F sitting on footpath. Pt states she was on her motorbike driving down the road at approx. 30km/hr when a truck went to turn left and hit her on her left side making her fall on the right side. … Pt c/o centralised chest pain with slight redness at sternum, denies any provocations and radiation. Pain to her left ankle, tibia, fibula and whilst enroute, developed lower back pain on right lumbar region. Pt able to ambulate and bear weight with slight limp. Ankle tender and painful on palpation…”[19]
[19] Insurer’s bundle p 66.
Royal Prince Alfred Hospital (RPAH)
The ED Discharge referral states:
“Motorcyclist
Large Kawasaki
Wearing helmet and leathers
Approx. 30 kph
Rubbish truck turning a corner approx 10kph
Collided with her
Fell off to right but hit her left leg mobilised at scene
No LOC”[20]
[20] Claimant’s bundle p 56.
A chest X-ray and a sternal X-ray was normal, she was moving her arms and legs, she had a bruise above the lateral malleolus of the left ankle, and an abrasion of the left ankle, full range of motion and could walk on it. The claimant was discharge to the care of her GP and advised to take analgesia.
Dr Vincent Nguyen, general practitioner
The claimant saw Dr Nguyen on 22 May 2017.[21] He reported a history of the motorbike accident two weeks earlier and reported the claimant was tender and mildly swollen on the lateral malleolus.
[21] Dr Nguyen records p 10.
On 30 May 2017 Dr Nguyen reported an X-ray of the left knee showed no fracture or dislocation and mild irregularity of the lateral intercondylar. The left ankle X-ray and ultrasound showed no fracture or dislocation and he queried a “sprain”. Dr Nguyen reported three weeks ago the claimant was tender on the right lower back with the pain worse on flexion and extension. He referred the claimant for a CT scan of the lumbosacral spine.
On 5 June 2017 Dr Nguyen reported stiffness in the neck and shoulders. He reported the lumbosacral CT scan demonstrated L5 compression and mild disc changes. He noted the lumbar fracture at 15 years of age.[22]
[22] Dr Nguyen records p 10.
On 26 June 2017 Dr Nguyen reported the chest CT scan was normal, the right shoulder X-ray and ultrasound demonstrated bursitis but no major degenerative changes, the left shoulder X-ray did not demonstrate any fracture and the X-ray of the cervical spine demonstrated minimal anterolisthesis of C7 on T1.[23]
[23] Dr Nguyen records p 11.
On 13 December 2017 Dr Nguyen reported the claimant was still having right shoulder pain. On 22 January 2018 Dr Nguyen reported the MRI of the right shoulder demonstrated a posterior labral tear.[24]
[24] Dr Nguyen records p 14.
On 7 February 2018 Dr Nguyen reported the claimant still had left shoulder pain. The claimant had an ultrasound guided left subdeltoid bursa injection on 9 February 2018.[25]
[25] Claimant’s bundle p 63.
The claimant had a left subacromial bursal injection on referral from Dr Nguyen on
14 March 2018.[26]
[26] Claimant’s bundle p 66.
Dr Nguyen provided a report dated 11 January 2019.[27] He saw the claimant on 22 May 2017 when he recorded left ankle pain, left knee pain, back pain, shoulders stiff and pain, and neck stiffness. He noted her lumbar L5 compression years earlier but stated the accident aggravated her back symptoms. He reported the claimant had chronic ongoing pain.
[27] Claimant’s bundle p 54.
On 14 January 2021 following a phone consult Dr Nguyen reported the claimant twisted her left knee a few days earlier. On 18 January 2021 Dr Nguyen reported on examination the left knee was tender and swollen on the medial/lateral site. Extension and flexion was painful.[28]
[28] Dr Nguyen records p 31.
On 1 March 2022 Dr Nguyen noted a few months of neck stiffness and pain with the pain radiating to the right arm.[29]
[29] Dr Nguyen notes p 35.
On 9 March 022 Dr Nguyen reported the MRI of the cervical spine showed C6 and C7 impingement. He also reported panic attacks.
On 22 November 2022 Dr Nguyen reported the claimant had been referred to see Dr Mark Hardy, a cannabis pain doctor.
Justine Trethewey, Macquarie Street Physiotherapy
Ms Trethewey provided a report dated 31 August 2017.[30] She saw Ms Subocz on
29 July 2017 when she reported ongoing right shoulder, scapula, and neck pain and right lower back pain. The left ankle pain was resolving. She noted a history of lower back and right shoulder pain as well as left thoracic pain in 2015 which resolved quickly.
[30] Insurer’s bundle p 84.
Ms Trethewey reported at the time of her first appointment as follows:
“Emilia attended for her first appointment with me on 29/7/17, reporting ongoing right shoulder, scapula and neck pain, and right lower back pain. Left ankle pain was resolving. She felt a cortisone injection into the right L5/S1 joint 2 weeks prior had helped reduce her back pain. She had started working from home 1-2 days/week in order to be able to move about. She was having difficulty due to pain when sitting, playing with her son, bushwalking and carrying her photography equipment. She had not returned to swimming and yoga.”
Ms Trethewey recommended rehabilitation of trunk, scapula and glenohumeral stabilising muscles following the accident. She noted little improvement after four physiotherapy sessions.
In an Allied health recovery request (AHRR) number 2 dated 18 December 2017 the diagnosis was recorded as:
· right LBP – L5/S1 facet joint inflammation;
· right thoracic and neck burning pain, and
· right shoulder joint pain.[31]
[31] Claimant’s bundle p 30.
Dr Lea-Anne May, rheumatologist
On 5 July 2017 Dr May saw the claimant for the motorbike accident on 9 May 2017.[32] She reported “Although she has a history of back and pelvic pain these have been causing her little problem and she has been able to maintain a regular exercise program without difficulty”. Dr May was concerned the claimant may have sustained a cervico-thoracic injury, at the C7 and T1 levels.
[32] Insurer’s additional documents p 12.
Dr May provided a report dated 17 July 2017.[33] She reported an impact to the right shoulder, pelvis and leg. She had grazing of the left leg and some sort of ankle sprain which was improving. She identified some neurological symptoms possibly related to tarsal tunnel syndrome secondary to swelling at the ankle. She considered she had suffered a whiplash injury to her neck when she fell and possibly a head injury.
[33] Insurer’s bundle p 90.
On 14 July 2917 the claimant underwent a CT guided facet joint injection.[34]
[34] Claimant’s bundle p 51.
Dr May provided a corticosteroid injection to her right shoulder where an ultrasound had identified bursitis. She had also undergone an L5/S1 facet joint injection a week earlier.
On 6 October 2017 Dr May diagnosed a chronic pain disorder and referred the claimant to a pain clinic.[35]
[35] Insurer’s additional documents p 14.
Dr Paul Ferris, pain specialist of Sydney Spine and Pain
Dr Ferris reported on 7 March 2018.[36] He reported she dated the onset of symptoms to the accident. She reported pain in the right mid-cervical region, a burning sensation over the scapular, a stiff sensation in her neck and dull lower back pain with sharp pulses. He diagnosed chronic mechanical cervical, thoracic and lumbar pain associated with facet joint arthropathy on a background of catastrophising thoughts, fear avoidance behaviour and post-traumatic stress symptoms. He recommended she attend the Regain multi-disciplinary pain management program.
Investigations
[36] Claimant’s bundle p 30.
X-ray lumbar spine, 14 May 2008 – the findings were reported as follows:
“The lordosis is straightened. There is reduction of height of the L5 vertebral body by 50% with intact endplates and maintained discs. The AP dimensions is a little increased. This appears to be longstanding either compression or developmental anomaly. A mild scoliosis is seen convex to the left at the l4/5. The pedicles and transvers processes and sacroiliac joints are normal.” [37]
[37] Insurer’s bundle p 96.
MRI lumbar spine, 14 May 2008 - the report concludes:
“Disc protrusions are seen both at L4/5 and L5/S1 more marked at the L5/S1 with annular tear to the left side mildly displacing the S1 nerve root. The foramen is clear on both sides. The L5 vertebral body shows an old fracture probably dating back many years. The L4/5 protrusion only caused mild indentation of the sac with annular tear.”[38]
[38] Insurer’s bundle p 96.
X-Ray sternum dated 9 May 2017 – the report reads:
“No sternal fracture is seen. There is no opacity in the retrosternal space to suggest a haematoma.”
X-Ray chest dated 9 May 2017- the report reads:
“PA and lateral chest radiographs.
Comparison: Nil available.
A rounded opacity projected in the region of the left hilum is not correlated on the
lateral projection and may reflect an [illegible] or vessel rather than a pulmonary
nodule. The lungs are otherwise clear. No pleural effusion or pneumothorax.
No displaced rib fractures are identified.”X-Ray chest, left knee, left ankle and ultrasound left ankle dated 24 May 2017 – the report reads:[39]
[39] Insurer’s bundle p 81.
“X-Ray Chest
Previous films unavailable for comparison. No major collapse or consolidation is seen. No pleural effusion or pneumothorax is seen. Just superior to the left hilum there is a 7mm rounded opacity that was seen on films performed in 2011, ?vessel end on ?granuloma.
X-Ray Left Knee
No fracture or dislocation is seen. Mild irregularity of the
lateral intercondylar spine noted. No loose intra-articular bodies. No chondral calcinosis is seen.
X-Ray Left Ankle
No fracture or dislocation is seen. The ankle mortise is intact.
Ultrasound Left Ankle
No ligamentous rupture. A small amount of fluid inferior to the talofibular ligament and the deltoid ?sprain.”CT lumbar spine dated 31 May 2017 – the report reads:[40]
“Global compression of L5 as described, probably longstanding.
Mild disc changes throughout. No central stenosis. Advanced facet arthrosis, left side L4/5 and right side L5/S1.”[40] Insurer’s bundle p 96.
X-Ray and Ultrasound right shoulder, X-ray cervical spine dated 21 June 2017 – the report reads:[41]
[41] Insurer’s bundle p 75.
“Overall Comment: No acute bone injury. No major degenerative change. No cuff
tear. Bursitis with impingement. Trial of ultrasound guided injection recommended.
X-Ray Left Shoulder
Glenohumeral alignment normal. There is no degenerative change.
No periarticular fracture seen.
No cuff calcification identified. Type 2 acromion process with a smooth
undersurface. There is no spur.
Normal AC Joint alignment without arthritis.
X-Ray Cervical Spine
Minimal anterolisthesis of C7 on T1 is present, associated with facet joint arthrosis at this level.
Vertebral body height maintained with no fracture.
Disc space height preserved.
The atlanto-axial joint is unremarkable.
No cervical rib seen.”MRI Cervical and Thoracic Spine dated 11 July 2017 – the report concludes:[42]
“No evidence for neural impingement in the cervical or thoracic spine.
Mild multilevel degenerative spondylosis. No canal or significant foraminal stenosis.
Advanced right facet arthrosis at the cervicothoracic junction.Normal appearance of the cervical cord. No subluxation. No evidence for ligament injury or recent bony injury.”[42] Insurer’s bundle p 77.
MRI right shoulder, 8 January 2018 – the report concludes:
“Mid posterior labrum shows a shallow longitudinal tear from 6 to 10 o’clock without displacement. Mild inferior capsular thickening is seen. Peritendon oedema is seen both in the supra and infraspinatus tendon in the subdeltoid location.”[43]
[43] Claimant’s bundle p 60.
X-ray and ultrasound left shoulder, 2 February 2018 – overall comment:
“No bony injury.
Mild bursitis and some features of biceps tenosynovitis.”[44]
[44] Claimant’s bundle p 62.
MRI lumbar spine, 23 February 2022 – the report reads:
“Findings:
There is mild scoliosis convex to the left side.
I do not see an acute fracture. There is global volume loss at L5 which has been documented back to a CT in 2017 Some chronic degenerative endplate marrow changes are noted particularly to the left side at this level. No other focal bone marrow signal abnormality seen.
L1/2 – L2/3: Disc height and signal preserved. Normal posterior disc contour. No canal or foraminal narrowing.
L3/4: Disc desiccation with mild narrowing. Trivial disc bulge. No disc protrusion. Canal and foramen are adequate. Moderate hypertrophic facet arthritis present.
L4/5” Disc desiccation, Disc height preserved. Central and left posterolateral annulus tears with associated disc bulge. No focal disc protrusion. There is fairly advanced hypertrophic facet disease here with facet joint effusion. Spinal canal dimensions are however adequate. There is no foraminal nerve root compression.
L5/S1: Disc desiccation. Broad-based disc bulge. No disc protrusion. Central canal dimensions are adequate. There is a little left foraminal narrowing. No central stenosis. Facet disease most marked on the right side at this level.
Conus terminates at T12/L1.
No paravertebral lesion is seen.
Comment:
Chronic L5 compression.
Lower two level degenerative disc and facet changes as described. Mild left foraminal narrowing L5/S1 with some potential L5 irritation with other convincing evidence of nerve compression.”[45]
[45] Claimant’s bundle p 41.
MRI cervical spine, 8 March 2002 – the findings were interpreted as follows:
“Mild spondylotic changes, slightly more pronounced at C5/6, where there is a mild to moderate left foraminal narrowing with potential for impingement of the exiting C6 and C7 nerve roots.”[46]
Medico-legal reports
[46] Claimant’s bundle p 37.
Dr Machart, orthopaedic surgeon
Dr Machart assessed the claimant and provided a report dated 17 July 2018.[47] He reported the claimant sustained a compression fracture at age 15 but was asymptomatic subsequently and healthy and active at the time of the accident.
[47] Insurer’s bundle p 47.
Dr Machart reported pain in the cervical spine, the mid-thoracic spine, the lumbar spine, both shoulders, the left knee, intermittently and rarely and in the left ankle also intermittently and rarely.
Dr Machart provided the following opinion as to diagnosis:
· left knee pain – no evidence of structural injury, lateral pain, not particularly serious or disabling;
· back pain – evidence of previous L5 fracture, no additional injury, degenerative changes noted, soft tissue sprain;
· thoracic spine – no evidence of structural injury. Soft tissue sprain on the background of multilevel age-related degenerative changes;
· shoulder stiffness – right shoulder – probable bursitis. No structural derangement, and
· left ankle – evidence of lateral ankle sprain without bony injury.
Dr Machart assessed the cervical spine as DRE I category or 0% WPI, the thoracic spine as DRE I category or 0% WPI, the lumbar spine as DRE I category in respect of the accident and excluding the pre-existing compression fracture of 0% WPI.
He assessed 0% WPI for the left knee and left ankle.
Dr Machart assessed both shoulders using the range of movement (ROM) method. He assessed upper extremity impairment (UEI) as follows:
Movement
ROM R shoulder
ROM L shoulder
UEI R shoulder
%
UEI L shoulder
%
Flexion
150 °
170 °
2
1
Extension
30 °
40 °
1
1
Abduction
150 °
170 °
1
0
Adduction
50 °
50 °
0
0
External rotation
90 °
90 °
0
0
Internal rotation
70 °
80 °
1
0
The UEI of the right shoulder is 2+1+1+1=5, converts to 3% WPI.
The UEI of the left shoulder is 1+1=2, converts to 1% WPI.
Under the combined tables 3+1=4% WPI.
Dr Machart reviewed the claimant and provided a report dated 2 November 2022.[48]
[48] Insurer’s bundle p 40.
Dr Machart diagnosed soft tissue injuries, stating: “I did not see evidence of structural derangement other than the rib fractures, now healed. Ongoing pain was reported in all areas reported to be injured.”
On examination of the cervical spine, he found no spasm, no deformity, no muscle guarding. There was tenderness over the right paraspinal muscles and he found diminished movement by a third from expected normal. There was no asymmetry and reflexes were intact.
Dr Machart found the thoracic spine was not the focus of pain and noted symmetrical ROM, flexion, extension, lateral flexion and rotation.
He reported tenderness in the lumbosacral junction and symmetrically diminished movement by half from expected normal in flexion, extension, lateral flexion and rotation. Tension signs were negative. Reflexes were present and symmetrical and sensory loss in the lower limbs was not evident.
Dr Machart reported limited movement of the shoulders in all directions, due to pain in the periscapular region.
Dr Machart reported the left knee was tender in the lateral femoral condyle. There was full movement and no crepitus on active extension.
Dr Machart reported full movement of the left ankle with no ligament laxity. He noted tenderness to the lateral border of the ankle.
Dr Machart’s assessment of permanent impairment was unchanged from his earlier assessment.
Dr Mohammed Assem, rehabilitation specialist
Dr Assem assessed the claimant and provided a report dated 18 February 2022.[49]
[49] Insurer’s bundle p 55.
Dr Assem reported a concrete pipe collapsed onto Ms Subocz’s back when she was 15. She immigrated to Australia in 2000 and subsequently consulted Professor Dan. He reported a plain X-ray of her lumbar spine on 14 May 2008 showed reduction of L5 vertebra by approximately 50%. An MRI scan showed disc protrusions at L4/5 and L5/S1, with an annular tear to the left side displacing the S1 nerve root.
He reported a further aggravation in July 2008 after a fall causing right-sided pain with paraesthesia in her right leg. An MRI scan of the piriformis musculature on 16 July 2008 was reported to be normal.
He also noted a previous injury to the right shoulder that she had difficulty recollecting. Justine Trethewey physiotherapist on 29 July 2013 reported she was complaining of ongoing clicking of her shoulder and was suspected of having an underlying SLAP lesion.
Dr Assem reported continued neck pain and stiffness, pain in both shoulders, severe pain across the lower back and pain in the right hip and left foot.
On examination Dr Assem found tenderness on palpating the spinous process of the cervical vertebrae and paravertebral muscles. He found no muscle guarding or spasm. He noted slight asymmetry in movement. Neurological examination of the upper extremities was normal.
Dr Assem assessed active range of motion of both shoulders as follows:
Movement
ROM R shoulder
ROM L shoulder
Flexion
140 °
170 °
Extension
30 °
30 °
Abduction
110 °
120 °
Adduction
30 °
0 °
External rotation
80 °
80 °
Internal rotation
70 °
70 °
He found tenderness on palpation of the lumbar spine extension was slightly reduced. Lateral flexion and rotation were normal. Active straight leg raising in the supine position was 70º bilaterally. Neural tension signs were negative. Knee jerk reflexes were brisk and symmetrical. There was possible slight reduction of right ankle jerk reflex compared to the left. There was more than 1cm atrophy of the right calf compared to the left and sensory loss at the posterior aspect of the right calf. He did not identify any significant weakness.
Dr Assem diagnosed the following injuries caused by the accident:
· soft tissue injury to the cervical spine and an aggravation of pre-existing arthrosis at the C7/T1 level;
· right shoulder – soft tissue injury causing subacromial bursitis with impingement;
· left shoulder – soft tissue injury;
· chest – undisplaced fractured rib;
· lumbar spine – soft tissue injury causing mechanical low back pain with right S1 radiculopathy;
· right hip – soft tissue injury;
· both knees – soft tissue injury;
· left ankle – soft tissue injury/tarsal tunnel syndrome, and
· psychological – post-traumatic stress disorder.
Dr Assem assessed a DRE cervicothoracic category II or 5% WPI of the cervical spine, 2% WPI of the right shoulder; DRE lumbar category III or 10% WPI of the lumbar spine; and 1% WPI for 50% compression of the medical plantar nerve. He assessed a total 22% WPI.
Dr Assem provided a supplementary report dated 4 May 2022.[50] He reported the radiological imaging of the cervical spine on 8 March 2022 showed mild to moderate left foraminal stenosis with potential impingement of the left C6/7 nerve roots which he considered consistent with the symptoms reported.
[50] Claimant’s bundle p 20.
He also reported an MRI scan of the lumbar spine showed L4/5 posterolateral annual tears associated with a disc bulge and advanced hypertrophic disease with facet joint effusion indicative of acute trauma. He also stated whilst it did not correspond with the radicular symptoms in her right leg it is not unusual to have radiculopathy at the contralateral side. Attached to his report is an article titled “Radiculopathy Contralateral of the Side of Disc Herniation – Microendoscopic observation” published 27 April 2018.
Natala Cogger, occupational therapist
Ms Cogger provided a report dated 11 November 2022.[51] She reported constant pain at the neck, and into the left and right trapezius, lower back and referred into the right hip and left knee. She had reduced shoulder active range of motion and reported headaches when her neck pain was exacerbated.
SUBMISSIONS
[51] Insurer’s additional documents p 15.
Insurer’s submissions
The insurer provided submissions in support of the permanent impairment dispute dated
20 December 2022.[52]
[52] Insurer’s bundle p 25.
The insurer relies upon the opinion of Dr Machart. In his report dated 2 November 2022
Dr Machart stated that the claimant sustained “soft tissue injuries, fairly minimal … and confined to the feet”. He further noted that “for there to be ongoing substantial symptoms … there would have to be demonstrable structural injury responsible for the long-term symptoms and disability. This is not the case”.
Dr Machart commented that Dr Assem did not provide any reasons for symptoms five years after the accident and “did not correlate the diagnostic features with contemporaneous evidence”.
In relation to the cervical spine the insurer notes there was no mention of pain or injury in the Ambulance report or in the Discharge referral of RPAH. An X-ray of the cervical spine dated 21 June 2017 revealed no fracture and the disc space was preserved. There was minimal anterolisthesis of C7 on T1, associated with facet joint arthrosis. An MRI of the cervical spine of 11 July 2017 found no evidence for neural impingement nor any evidence for a ligament injury or recent bony injury. There was mild multilevel degenerative spondylosis and advanced right facet arthrosis at the cervicothoracic region. The insurer submits these findings were pre-existing at the time of the accident. The insurer notes having regard to the findings of Dr Machart there was no impairment of the cervical spine.
In relation to the left shoulder the insurer notes there was no mention of the left shoulder in the Ambulance report or the Discharge referral of RPAH. Further the insurer notes two years before the accident Justine Trethewey, physiotherapist reported left scapula pain ongoing for 1.5 years. The insurer relies on the assessment of 1% WPI of Dr Machart due to limited movement.
In relation to the right shoulder the insurer notes in a referral dated 29 September 2010
Dr Nguyen referred to right shoulder pain. In a report dated 29 July 2013 Justine Trethewey confirmed longstanding right shoulder pain. There was also no mention of pain or injury to the right shoulder in the Ambulance report or the Discharge referral of RPAH. The insurer relies upon the report of Dr Machart who assessed a 3% WPI due to soft tissue injury.
The insurer notes whilst the Ambulance report referred to centralised chest pain with slight redness at the sternum a chest X-ray of 24 May 2017 found no major collapse, consolidation, pleural effusion or pneumothorax and does not identify any displaced rib fractures. Further, whilst Dr Assem notes the claimant sustained an undisplaced rib fracture in the accident it has not resulted in any permanent impairment.
In relation to the right hip the insurer notes the history of injury to the right hip evidenced in the report of Dr Dan dated 17 July 2008 and the MRI piriformis and pelvis report dated
18 July 2008. The insurer also notes there was no mention of pain or injury to the hip in the Discharge referral of RPAH dated 9 May 2017 and in her report of 31 August 2017 Justine Trethewey reported the claimant landed on her right shoulder and hip in the accident but with no indication of injury as a result. The insurer also notes that Dr Assem did not find any assessable permanent impairment relating to the right hip.
In relation to both knees the insurer notes no acute injury was found on X-ray and neither
Dr Assem nor Dr Machart found any assessable permanent impairment.
In relation to the left ankle the Discharge summary noted a “bruise above lat malleolus left ankle” and an “abrasion left med ankle” but noted the ankle had full range of movement and the claimant could walk on it. An X-ray of the ankle found no fracture or dislocation and the ankle mortise was intact. Dr May, rheumatologist reported the claimant likely suffered “some sort of ankle sprain, which is improving”. Whilst Dr Assem diagnosed tarsal tunnel syndrome he stated it required assessment by an orthopaedic surgeon. However, Dr Machart, orthopaedic surgeon did not diagnose tarsal tunnel syndrome and found no permanent impairment of the left ankle.
In relation to the lumbar spine the insurer notes the extensive history of injury and pain to the lower back confirmed by the MRI report of 14 May 2008 which concluded “the L5 vertebral body shows an old fracture probably dating back many years”. The insurer relies upon the opinion of Dr Machart who found no permanent impairment of the lumbar spine.
The insurer provided submissions dated 6 November 2023 in support of the application for review.[53] The insurer submits Medical Assessor Bodel failed to adequately address the question of causation in respect of the injuries in the cervical spine, the left shoulder, the right shoulder, the right hip and the right knee.
[53] Insurer’s bundle p 1.
The insurer notes there was no complaint of symptoms in the cervical spine, right shoulder, left shoulder, right hip and right knee in the NSW Ambulance report or the discharge referral of RPAH. The first recorded complaint of pain in the cervical spine, left shoulder and right shoulder was made by the claimant’s general practitioner on 5 June 2017, nearly four weeks after the accident. The insurer submits Medical Assessor Bodel did not address the significant delay in the reporting of these symptoms when forming his opinion on causation.
Further, the insurer submits Medical Assessor Bodel determined the claimant had a direct blow to the right knee and resultant restriction of movement but fails to acknowledge there was no mention of right knee pain or injury in the Ambulance report and nor does he note that the discharge summary of RPAH states “fell off to the right but hit her left leg”. Further, the insurer notes there was no mention of right knee pain or symptoms in the discharge summary of RPAH and the first radiology scan of the right knee was not until June 2020, over three years post-accident.
Claimant’s submissions
The claimant provided submissions dated 27 September 2023 addressing the question to be determined by the delegate, that is whether the assessment of Medical Assessor Bodel was incorrect in a material respect. [54]
[54] Claimant’s bundle p 1.
MEDICAL EXAMINATION
Ms Subocz was examined by Medical Assessor Dixon at the medical suites at the Personal Injury Commission on 19 April 2024.
Accident details
This 56-year-old claimant was riding her Kawasaki 250 cc motorcycle wearing PPE including a full face helmet. When travelling along Cleveland Street she was struck by a garbage truck which came out of a side street on the left. She was hit on the left side and knocked to the ground falling on her right hip. She had injury to her helmeted head on the right with neck strain injury and injuries to her shoulders, back and chest, both knees and left ankle. She may have passed out momentarily but there was no amnesia for the accident details.
She was transported to RPAH by ambulance and was noted to have an abrasion and contusion to her left ankle. She also had pain in the chest wall and imaging studies revealed a fractured right rib but no other bony injuries. She was observed overnight and discharged the following day and then referred to the care of her local doctor, Dr Vincent Nguyen.
When asked about her lack of complaints at the time of the accident, she reported she was aching all over and was quite rattled after the accident and in the time she was at the Emergency department of RPAH, she was unable to ventilate all her concerns.
She had one week off work and then returned to work on line from home for RBC Investor Services Management, Risk and Investment.
It was noted that on 29 July 2013, almost four years before the accident, the claimant was treated for shoulder pain in the left scapula region. When asked Ms Subocz felt that her left shoulder condition had settled prior to the accident.
Ms Subocz said she was functioning reasonably well in the years before the accident. While she had a compression fracture at L5 when she was 15 years of age when a concrete pipe fell on her it was not initially diagnosed. She spent her later teenage years and early adult life being very active, for example, she used to swim 120 laps of a pool and did a lot of outdoor activity such as hiking.
Treatment
She was prescribed analgesia and anti-inflammatories and underwent physiotherapy treatment. An MRI of her cervical and thoracic spine showed degenerative changes but no focal disc protrusions, spinal cord nor nerve root compression.
Ms Subocz subsequently had an X-ray and ultrasound of the right shoulder which showed subacromial bursitis and degenerative change at the AC joint and an X-ray of the left shoulder which showed no bone or joint abnormality. She had plain X-rays of her cervical spine which showed minor degenerative change on 5 June 2017.
A chest X-ray on 24 May 2017 showed no significant abnormality of the chest wall.
X-rays of the left knee and left ankle on 24 May 2017 showed no abnormality but the ultrasound of the left ankle showed some mild changes in the deltoid ligament but no apparent tear.
An X-ray and ultrasound of the right ankle on 24 May 2017 showed mild olecranon bursitis.
On 17 July 2017 Ms Subocz saw Dr Lea-Anne May, rheumatologist who concluded she suffered a whiplash injury to the neck with a possible head injury without significant loss of consciousness.
A CT scan of the cervical and thoracic spine on 11 July 2017 showed no bony injury or any neurosurgical compression.
The claimant had right sided low back pain and had a right L5/S1 facet block with cortisone injection.
Symptoms
On review by Medical Assessor Dixon Ms Subocz complained of continuing pain mainly at the right side of her neck with right shoulder brachalgia and trapezial muscle pain extending through to the deltoid insertion. She reported occipital migraine like headaches. She reported her neck pain disturbed her sleep. Her neck pain and stiffness made it difficult for her drive, reverse park, change lanes and check the blind spots.
She had pain and stiffness in her right shoulder and had difficulty elevating the arm above shoulder height, difficulty reaching objects on high shelves and difficulty with overhead work at home. She had difficulty with heavy lifting and carrying due to shoulder pain and low back pain. She reported pain in her left shoulder had settled.
She reported no pain in either elbow, wrist or hands and no paraesthesia in the upper extremities.
Ms Subocz reported pain in her lower back with right paralumbar pain with radiation to the right buttock. She reported no paraesthesia in her lower limbs and there appeared to be no symptoms suggestive of tarsal tunnel syndrome. She did report some burning pain on the lateral part of the left foot radiating from her ankle.
She reported anterolateral pain at her right knee and reported no locking or instability of that knee.
In the left knee Ms Subocz reported some mild instability and no locking. She had difficulty kneeling on that knee, squatting was difficult and she had difficulty using stairs and steps.
She reported pain in her lateral hip in the region of the trochanteric bursa and the gluteus medius.
She reported pain in her left ankle with mild stiffness but no swelling.
Examination
Ms Subocz was 167cm tall and weighed 60kg. She presented in a straight forward manner without embellishment.
Cervical spine
There was stiffness of her cervical spine with flexion decreased by one quarter. She had pain on neck extension which was decreased by one third and lateral rotation to the right was decreased by one half and to the left by one quarter. Lateral flexion to the right was decreased by one third and to the left by one quarter. There was tenderness of the right trapezius muscle which showed spasm today and there was tenderness of the right supraclavicular brachial plexus. The brachial plexus stretch test was positive as was her foraminal compression test. There was mild tenderness of the left trapezius muscle.
There was no neurological deficit in either upper extremity and no wasting.
Shoulders
Active range of motion of the shoulders was measured with several repetitions with a goniometer.
She had mild stiffness of her right shoulder with active abduction of 150 degrees, forward flexion of 160 degrees, extension of 40 degrees, adduction of 40 degrees, external rotation of 80 degrees and internal rotation of 70 degrees. Shoulder girdle power on the right was grade 4 plus out of 5.
The range of motion of the left shoulder showed forward flexion of 160 degrees, active abduction of 160 degrees, extension of 40 degrees, adduction of 40 degrees, external rotation of 80 degrees and internal rotation of 80 degrees. Shoulder girdle power was grade 4 out of 5 on the left (she is right handed).
There was a full range of motion of both elbows without tenderness and without olecranon bursitis of the left elbow. Ms Subocz reports her left elbow injury had settled.
There was a full range of motion of both wrists and hands and her thenar power, intrinsic power and grip strength were grade 5 out of 5. There were no objective sensory losses in the upper extremity.
Lumbar spine
There was stiffness of the lumbar segment with flexion decreased by one third with slow and jerky recovery with right sided erector spinae muscle spasm with pain on back extension which was decreased by one half and lateral flexion to the right decreased by one third and that to the left by one quarter.
Ms Subocz had tenderness at the L4/5 level in the mid line and the adjacent lumbosacral facet joint. Her straight leg raise on the right was 60 degrees and associated with low back pain and buttock sciatica. Her straight leg raise on the left was 60 degrees. There was no neurological deficit in either lower extremity. Her reflexes were symmetrical. There were no objective sensory losses and her power was grade 5 out of 5. Her Babinski signs were negative. There was no wasting above or below the knee.
Right hip
There was tenderness at the trochanteric region of her right hip.
Knees
There was tenderness at the anterolateral joint line of her right knee and the McMurray’s test appeared positive. Her right knee was stable.
Her left knee showed patellofemoral subluxation with lateral impingement and a positive apprehension test sign. There was an effusion in the left knee and popliteal fullness. The range of motion of the left knee was 0 degrees through to 120 degrees and was otherwise stable. She was able to reproduce recurvatum on standing of both knees, better on the right, where flexion was 130 degrees.
Left ankle
There was stiffness of her left ankle with dorsi flexion of 10 degrees, plantar flexion of 25 degrees, stiffness of eversion of 10 degrees and inversion of 25 degrees at the subtalar joint. There was tenderness at the lateral ligament below the lateral malleolus.
Percussion of the area induced some burning pain down the lateral aspect of the foot in the distribution of the sural nerve. There was no objective sensory change. The range of motion of the right ankle and subtalar joint was full.
Her normal gait was satisfactory but she had a limp on the right due to thigh pain and toe walking and heel walking was satisfactory. Her squat test was associated with audible crepitus in the left knee.
PANEL FINDINGS
Diagnosis and causation
Ms Subocz presented in a straight forward manner. Medical Assessor Dixon considered she had sustained significant injuries in the accident. While she has been able to work from home four days a week, she requires anti-inflammatories, Voltaren twice a day and for analgesia, CBD oil without THC and Panadol. She has finished physiotherapy and does her own exercises at home.
The Panel refers to the report of Ms Trethewey dated 31 August 2017 where she outlines the impact the injuries had upon her daily activities including playing with her son, bushwalking, carrying her photography equipment, swimming and yoga.
In Briggs v IAG Limited t/a NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[55] His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
Cervical spine
[55] Briggs [2022] NSWSC 372.
Ms Subocz was involved in a severe motor vehicle accident with a helmeted head injury without significant loss of consciousness and no amnesia.
The Panel notes there was no complaint of pain or injury to the cervical spine in the Ambulance report or in the records of RPAH and the first reported complaint was made by
Dr Nguyen on 5 June 2017, some four weeks post-accident when he noted there was stiffness of the neck and shoulders.
On 5 July 2017 Dr May was concerned Ms Subocz may have sustained a cervicothoracic injury and on 29 July 2017 Ms Trethewey, physiotherapist reported neck pain. On
7 March 2018 Dr Ferris reported pain in the right mid-cervical region. On 17 July 2018 and again on 2 November 2022 Dr Machart reported pain in the cervical spine and on
18 February 2022 Dr Assem reported continued neck pain and stiffness and diagnosed a soft tissue injury to the cervical spine. In her report dated 11 November 2022 Ms Cogger reported constant pain at the neck associated with headaches.
An MRI of the cervical and thoracic spine on 11 July 2017 showed advanced facet arthrosis at the cervicothoracic function and a normal cervical cord. An MRI of the cervical spine on
8 March 2022 showed mild spondylitic change most pronounced at C5/6 with mild to left foraminal narrowing with potential for impingement on the exiting C6 and C7 nerve roots.
Notwithstanding the delay in complaint and keeping in mind causation does not require scientific certainty the Panel is satisfied the accident was associated with a whiplash injury to the claimant’s neck where she had no pre-existing history of neck pain and noting the consistency of complaint to date.
The Panel finds Ms Subocz sustained a helmeted head injury on the right with neck strain injury, but without significant loss of consciousness and no amnesia with residual occipital migraine headaches. She continues to suffer from post-traumatic stiffness of the cervical spine with dysmetria with facet arthralgia clinically and shoulder brachalgia with trapezial muscle pain and spasm and positive cervical foraminal compression test without radiculopathy in either upper extremity.
Right shoulder
There is a pre-accident history of right shoulder pain. The insurer notes Dr Nguyen referred to right shoulder pain in a referral dated 29 September 2010. Dr May reported tightness in the right shoulder on 29 January 2013 and 29 July 2013 and Ms Trethewey confirmed longstanding right shoulder pain and suggested the presence of an underlying SLAP lesion. However, where there is no record of complaint between 2013 and the accident on 9 May 2017 the Panel accepts the evidence of the claimant that her pre-existing condition had settled prior to the accident.
In respect of causation the insurer submits following the accident there was no complaint of symptoms in the right shoulder reported in the Ambulance report or in the records of RPAH. Whilst it is correct that the first recorded complaint of shoulder pain was on 5 June 2017 when Dr Nguyen reported stiffness in the neck and shoulders thereafter there has been consistency of complaint.
An X-ray and ultrasound of the right shoulder on 21 June 2017 demonstrated bursitis, no degenerative change, and no acute bony injury. On 29 July 2017 Ms Trethewey reported right shoulder pain.
On 13 December 2017 Dr Nguyen reported the claimant was still having pain in the right shoulder and on 8 January 2018 Ms Subocz underwent an MRI of the right shoulder which disclosed a superior longitudinal tear of the posterior labrum.
Dr Assem diagnosed a soft tissue injury causing subacromial bursitis with impingement and Dr Machart also found there was probably bursitis in the right shoulder.
On examination Ms Subocz continues to have post-traumatic stiffness in her right shoulder with impingement.
Noting the legal test of causation does not require scientific certainty and in the absence of any intervening event the Panel is satisfied the accident materially contributed to injury to the right shoulder where the claimant fell on the right side even though no record of complaint was made until 5 June 2021. The Panel also notes the consistency of complaint thereafter and the findings of the MRI scan of 8 January 2018.
The Panel finds the claimant sustained a soft tissue injury to her right shoulder with mild post-traumatic pain and stiffness and impingement on abduction with a labral tear.
Left shoulder
In relation to causation of the left shoulder the insurer submits that two years before the accident Ms Trethewey reported left scapula pain which had been ongoing for 1.5 years.
Whilst the first complaint of symptoms in the left shoulder was recorded by Dr Nguyen on
5 June 2017 the Panel notes the claimant underwent an X-ray of the left shoulder on 21 June 2017. The Panel is satisfied the accident materially contributed to injury to the left shoulder where the claimant was hit on the left side.
However, on examination by Medical Assessor Dixon the biceps groove was non tender and Medical Assessor Dixon was satisfied any soft tissue injury to the left shoulder caused by the accident had resolved. Whilst Medical Assessor Dixon found some restriction of movement on examination he concluded it was not caused by the accident but was pre-existing.
Lumbar spine
The Panel finds the claimant sustained an injury to the lumbar spine given she reported lower back pain on the right to the Ambulance officers and were Dr Nguyen reported pain and tenderness on the right lower back on 30 May 2017. Ms Trethewey reported right lower back pain on 29 July 2017 and reported the claimant had undergone a cortisone injection into the right L5/S1 joint 2 weeks prior. On 7 March 2018 Dr Ferris reported a dull lower back pain with sharp pulses.
It was noted that the CT of the lumbar spine on 31 May 2017 showed the old compression fracture of L5 and advanced facet arthrosis of the left L4/5 and the right L5/S1 and it is probable she has aggravated these in the accident and clinically she still has facet arthralgia in this area on the right.
An MRI of the lumbar spine on 23 February 2022 showed central and left posterolateral annular tears with advanced hypertrophic facet disease and at L5/S1 there was a disc protrusion but a little left foraminal narrowing with facet disease most marked on the right. The overall comment was of lower level degenerative disc and facet changes with foraminal narrowing with some potential L5 irritation.
Dr Assem diagnosed a soft tissue injury causing mechanical low back pain with right S1 radiculopathy whilst Dr Machart noting the evidence of a previous L5 fracture diagnosed a soft tissue sprain.
On examination there was no sign of sensory impairment in the lower limbs and no clinical signs of radiculopathy.
The Panel finds as a result of the accident the claimant sustained a low back strain injury with post-traumatic lumbar stiffness with dysmetria with an L4/5 disc lesion and right sided L5/S1 facet arthralgia with radicular complaint with right buttock sciatica without radiculopathy.
Right hip
The insurer notes the history of injury to the right hip evidenced in the report of Dr Dan dated 17 July 2008 and the MRI piriformis and pelvis report dated 18 July 2008. The Panel is not concerned about that history when there has been no complaint for a period of nine years pre accident.
The insurer also notes there was no mention of pain or injury to the hip in the discharge referral of RPAH and in her report of 31 August 2017 Justine Trethewey reported the claimant landed on her right shoulder and hip in the accident but with no indication of injury as a result.
Where the claimant fell on her left side the Panel is satisfied she sustained injury to her right hip as a result of the accident. However, Ms Subocz has not undergone any investigations of her right hip and very little treatment. Trochanteric bursitis of the right hip with a limp on toe walking.
Dr Assem diagnosed a soft tissue injury to the right hip although Dr Machart did not report any history pertaining to the hip.
The Panel finds the claimant sustained trochanteric bursitis of the right hip with a limp on toe walking as a result of the accident.
Left knee
The Ambulance report did not report left knee pain although it did report pain to the left tibia and fibula.
In his report dated 22 May 2017 Dr Nguyen reported when he saw Ms Subocz on
22 May 2017 he recorded left ankle pain. Ms Subocz underwent an X-ray of the left knee on 24 May 2017 in which no fracture or dislocation was seen although mild irregularity of the lateral intercondylar spine was noted.
On examination by Medical Assessor Dixon, he noted some mild instability but no locking and difficulty kneeling, squatting and using stairs. He also noticed a satisfactory range of motion of her knee.
The Panel finds as a result of the accident the claimant sustained a contusion to her left knee causing patellofemoral subluxation with lateral impingement of her knee.
Right knee
Although the claimant fell on her right side there is no evidence of injury to the right knee. No complaint was made in respect of the right knee and no investigations were undertaken.
The Panel finds the claimant did not sustain injury to the right knee.
Left ankle
The Ambulance report noted the left ankle was tender and painful on palpation.
When she saw Dr Nguyen on 22 May 2017 she reported the accident two weeks earlier and had mild swelling on the lateral malleolus. On 30 May 2017, Dr Nguyen reported no fracture or dislocation and he queried a “sprain”.
It is noted that an X-ray and ultrasound of the left ankle on 24 May 2017 showed no fracture or dislocation and the ankle joint mortise was intact but there was a small amount of fluid inferior of the talofibular ligament and the deltoid queried sprain.
On examination Ms Subocz still has some tenderness in the lateral ligament of the left ankle with some burning pain in the distribution of the sural nerve without objective sensory loss.
There was no evidence of tarsal tunnel syndrome in the left ankle. There was no tenderness of the deltoid ligament and no sensory changes in the distribution of the median plantar nerve.
The Panel finds as a result of the accident the claimant sustained an abrasion and contusion to her left ankle with residual tenderness of the lateral ligament and some burning pain radiating from this area in the distribution of the sural nerve and the lateral foot.
Chest – undisplaced fractured rib
The Ambulance report recorded complaints of centralised chest pain with slight redness at the sternum.
An X-ray of the chest was performed on 9 May 2017. It did not identify any displaced rib fractures.
The Panel finds as a result of the accident the claimant sustained an undisplaced fractured rib. That fracture has settled and Ms Subocz no longer reports any shortness of breath or pleuritic pain or sternal pain on deep inspiration.
ASSESSMENT OF PERMANENT IMPAIRMENT
Cervical spine
In assessing injury to the spine the Panel notes DRE category II requires:
(a) Pain with guarding or
(b) Non-uniform range of motion – dysmetria or
(c) Non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(i)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.
On examination Medical Assessor Dixon reported pain, stiffness and non-uniform range of motion. There was no neurological deficit.
In accordance with Chapter 3, pages 102 to 105 of the AMA 4 Guides and Table 7 of the Guidelines the Panel finds the injury to the cervical spine is consistent with a DRE category II or 5% WPI.
Right shoulder
Right UEI was calculated with reference to Chapter 3, pages 41 to 45, Figures 38, 41 and 44 of the AMA 4 Guides.
On examination Medical Assessor Dixon found restriction of movement of the right shoulder. Abduction of 150º gives 1% UEI, flexion of 160º gives 1% UEI, extension 40º gives 1% UEI, adduction of 40º gives 0% UEI, external rotation of 80º gives 0% UEI and internal rotation of 70º gives UEI of 1%. This gives 4% UEI.
Whilst the Panel determined the left shoulder had recovered from any soft tissue injury caused by the accident Medical Assessor Dixon found it had less than average mobility and in accordance with cl 6.51 of the Guidelines the assessed impairment value of the left shoulder must be subtracted from the impairment value of the right shoulder where, in all likelihood, the injured right shoulder would have had similar findings to the left shoulder before the accident.
Left UEI was calculated with reference to chapter 3, pages 41 to 45, Figures 38, 41 and 44 of the AMA 4 Guides.Abduction of 160º gives 1% UEI, flexion of 160º gives 1% UEI, extension 40º gives 1% UEI, adduction of 40º gives 0% UEI, external rotation of 80º gives 0% UEI and internal rotation of 80º gives UEI of 0%. This gives 3% UEI.
Deducting the impairment value of the left shoulder of 3% UEI from the impairment value of the right shoulder gives 1% UEI which converts to 1% WPI using table 3 on page 20 of the AMA 4 Guides for the right shoulder.
Lumbar spine
On examination of the lumbar spine Medical Assessor Dixon reported pain, stiffness and non-uniform range of motion.
In accordance with Chapter 3, pages 101 to 103 of the AMA 4 Guides and Table 8 of the Guidelines the Panel finds the injury to the lumbar spine is consistent with a DRE category II or 5% WPI.
There is no deduction for the L5 compression fracture which occurred many years ago when the claimant was a teenager and which was symptomatic at the time of the accident.
Right hip
The Panel assessed the residual trochanteric bursitis of the right hip with abnormal gait under Table 64 of Chapter 3 of the AMA 4 Guides at 3% WPI.
Left knee
The Panel assessed the residual patellofemoral subluxation with impingement with a positive apprehension test of the left knee under Table 64, of Chapter 3 of the AMA 4 Guides at 3% WPI.
Right knee
The claimant did not sustained injury to the right knee caused by the accident. Accordingly, there is no assessable impairment.
Left ankle
The claimant has post-traumatic stiffness of the left ankle and hind foot. Under Table 42 on page 78 of the AMA 4 Guides the claimant was assessed as 3% WPI in respect of ankle extension and assessed as a further 1% WPI in respect of restricted eversion under Table 43 on page 78 of the AMA 4 Guides. Those impairments are added together to arrive at an assessable impairment of 4% in respect of the left ankle.
Chest – undisplaced fracture
The Panel notes the undisplaced fractured rib has settled. Uncomplicated healed rib fractures do not result in any assessable impairment in accordance with cl 6.23 of the Guidelines.
This gives a total from the Combined Values Chart of 22% WPI.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Bodel dated 23 October 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which, in total is greater than 10% and which is 22%:
· cervical spine – soft tissue injury;
· right shoulder – soft tissue injury;
· lumbar spine – soft tissue injury;
· right hip – soft tissue injury, trochanteric bursitis;
· left knee – soft tissue injury, and
· left ankle – soft tissue injury.
The Panel finds the following injury caused by the accident has resolved:
· chest – undisplaced fracture, and
· left shoulder – soft tissue injury.
The Panel finds the following injury was not caused by the accident:
· right knee – soft tissue injury.
0
6
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