QBE Insurance (Australia) Limited v Tugaga
[2025] NSWPICMP 252
•11 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Tugaga [2025] NSWPICMP 252 |
CLAIMANT: | Sene Tugaga |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Shane Maloney |
MEDICAL ASSESSOR: | Tania Rogers |
DATE OF DECISION: | 11 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of whole person impairment (WPI); alleged injuries to the cervical and lumbar spine, left leg, and both arms caused by motor accident; claimant standing in a car yard when was knocked over by a vehicle; Held – injuries to the arms found to be not caused by the motor accident; WPI arising from injuries to the cervical spine, lumbar spine and left leg assessed at 9%; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor McGrath dated 22 April 2024. 2. Certifies the following injuries caused by the motor accident gives rise to a permanent impairment of 9% and is NOT greater than 10%: · cervical spine - aggravation of pre-existing degenerative changes; · lumber spine - aggravation of pre-existing degenerative changes, and · left leg and knee – soft tissue injury. 3. Certifies the following injuries were NOT caused by the motor accident: · left arm and hand, and · right arm and hand. 4. Certifies that the injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act2017. |
STATEMENT OF REASONS
INTRODUCTION
Ms Sene Tugaga, (the claimant) is a 56-year-old female who suffered injury on
19 June 2020. The claimant was standing in a car yard when she was knocked over by a vehicle.
A claim was lodged upon QBE Insurance Australia Limited (the insurer) who is the insurer of the vehicle involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The review involves two issues of dispute. The first being whether any physical injury suffered by the claimant as a result of the accident is a threshold injury (previously known as a minor injury – any reference to ‘minor injury’ in this determination is a reference to ‘threshold injury’).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26/52 weeks and an entitlement to claim common law damages is opened.
The second 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%.”[1]
[1] Section 4.11 of the MAI Act.
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 David McGrath. He issued a certificate dated 22 April 2024. The Medical Assessor certified that injuries to the cervical spine, lumbar spine, left arm and right arm where threshold injuries, and he declined to assess whole person impairment (WPI) of such injuries. He certified that an injury to the left leg was not a threshold injury and assessed a corresponding 4% WPI.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 20 June 2024, the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
A review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[2]
[2] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 15 August 2024 requesting paginated and indexed bundles of all documents relied upon by the parties. The parties lodged bundles in compliance with those directions.
Following an initial preliminary conference, the Panel issued directions dated 15 August 2024 requiring the parties to lodge paginated and indexed bundles of all documents relied upon. The parties lodged bundles in compliance with those directions. The Panel also advised that it required the claimant to attend a re-examination with Medical Assessor Rogers on
17 October 2024. The claimant attended the examination, and details are set out below.
The Panel reconvened via teleconference on 21 November 2024 and it was decided that a videoconference be scheduled with the Panel and the claimant to occur on
19 December 2024. The Panel also directed the claimant to provide a copy of the radiological film by 9 December 2024.
LEGISLATIVE FRAMEWORK
Threshold injury
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric injury. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“…an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.6 of the Guidelines provides: “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“…radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines Permanent Impairment’.
a)Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
b)Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
c)Muscle atrophy and/or decreased limb circumference (see definitions of clinical findings in Table 6.8 in these Guidelines)
d)Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines 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.[3]
[3] Clause 6.2 of the Guidelines.
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[4] Clauses 1.6 and 1.7 provide:
“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.”
[4] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act).[5]
[5] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements;
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Examination of the cervical spine was documented as essentially normal. In respect of the lumbar spine the Medical Assessor noted minor asymmetry of movement and there were no non-verifiable radicular complaints. Examination of the upper extremities is also noted as normal.
In respect of the lower extremities the Medical Assessor states that essentially the claimant only had 90 degrees of active flexion of the left knee and passive examination was closer to 110 degrees. Tenderness over the medial joint line to direct palpation is noted.
The Medical Assessor concluded the claimant’s presentation was clinically consistent with a torn medial meniscus. He stated that whilst there was no radiological evidence that the meniscus is torn, the CT lacks resolution to detect such an injury.
With the claimant having been found to suffer a non-threshold injury in respect of the left knee (with all other injuries determined as threshold injury). The Medical Assessor erroneously, only provided an assessment of WPI in respect of the left knee/left lower extremity. He found a 4% impairment.
DOCUMENTATION
The Panel has considered all material forwarded by the parties in compliance with the Panel directions. The Panel has also considered a number of medical assessment certificates/reasons issued by the Personal Injury Commission (Commission).
Commission medical assessments
Medical Assessor Cameron dated 5 May 2023
The Medical Assessor certified that treatment and care by way of, CT scan of the cervical and lumbar spine, bone densitometry scan of the lumbar spine and a neurological specialist review related to the injury caused by the accident. The specialist review was certified as reasonable and necessary in the circumstances and the balance of treatment not being reasonable and necessary.
In respect of causation the Medical Assessor states “…Mrs Tugaga sustained soft tissue injuries to her knees and possibly her neck and back. There could have been soft tissue injuries to other body regions.”
Medical Assessor Geoffrey (Paul) Curtin dated 18 March 2024
The Medical Assessor certified that right knee scarring was a threshold injury for the purposes of the MAI Act and an injury of “face-parotid gland lesions” was not caused by the motor accident.
Submissions
Insurer’s review submissions dated 22 May 2024
The insurer notes the Medical Assessor was in error by not undertaking an assessment of WPI of all injuries caused by the accident.
It is further submitted the Medical Assessor failed to put inconsistencies to the claimant. In this regard, the insurer submits that the claimant denying previous spinal or musculoskeletal pains is inconsistent with the available medical evidence where neck pain and some pins and needles are noted by the claimant’s general practitioner (GP), in circumstances where this history was specifically noted in the insurer’s original submissions. Other inconsistencies are listed by the insurer including Medical Assessor Cameron finding paraesthesia in the left calf when Medical Assessor Gothelf found no neurological symptoms.
The insurer also notes the Medical Assessor finding a difference in examination findings of flexion of the left knee compared to informal assessment.
The insurer submits that the Medical Assessor provided an incorrect diagnosis of meniscus tear, on the basis that it was inappropriate to make the diagnosis on the basis of inconclusive clinical signs. Further, it was done in the absence of radiological evidence, and the Medical Assessor was seemingly unaware of pre-accident history of left knee complaints in the records of Mac-Field Medical Practice.
In addition, the insurer submits that the Medical Assessor failed to provide adequate reasons and engage with the evidence provided by the parties. The insurer notes that in their submissions of 9 January 2024, the claimant’s history of symptoms in the knees, shoulder, neck and back with radiculopathy was set out and yet it is unclear to what extent, if any, the Medical Assessor relied on such information.
Claimant’s review submissions in reply dated 13 June 2024
The claimant agrees with the insurer’s submissions in respect of the Medical Assessor’s failure to assess all injuries when determining WPI.
In respect of inconsistencies, the submissions suggest that the fact the claimant denied any previous spinal or musculoskeletal pains before the accident is consistent with the complaints being minor or that she had forgotten about them.
The submissions refute the suggestion the Medical Assessor was in error diagnosing a meniscal tear. The claimant notes that imaging is not required to diagnose a tear and the Medical Assessor made a number of findings on examination that support the diagnosis.
Claimant’s original submissions dated 11 May 2021 in respect of “minor injury”
It is submitted the claimant suffered a non-minor (now known as threshold), noting radiculopathy present in respect of both the neck and back injuries. Also referred to is a wedge fracture of the lumbar spine, noted in the bone densitometry scan dated
17 August 2020.
The submissions also assert the claimant suffered a meniscal injury to the left knee supported by the presence of swelling of the knee and an ultrasound of 24 November 2000 which observed bulging of the medial meniscus.
Lastly, it is submitted the claimant suffered a lesion to her parotid glands as noted in the ultrasound report of Dr Nagra dated 24 November 2020. In addition, Dr Zaman on
6 July 2020 noted smooth, non-tender mobile lumps in the parotid region – with there being no history of blunt trauma other than the subject accident.
Claimant’s submissions in respect of whole person impairment dated 18 August 2022
It is submitted the accident caused a worsening of the claimant’s neck and back pain, noting the claimant was referred for an X-ray of the neck and lumbar spine following complaints of persisting pain after the accident which she underwent on 1 July 2020. In addition to a bone densitometry scan in August 2020.
The submissions also refer to the alleged injury of meniscal tear to the left knee and the lesions to the parotid glands. It is submitted the injuries would exceed the 10% WPI threshold.
Insurer’s original submissions dated 1 June 2021
The insurer provides a chronology of pre-accident complaints that are set out in the clinical records of Mac-Field Medical Practice.
It is submitted that the accident involved a very low velocity incident where the insured vehicle was travelling at a speed of less than 10kmph in the car park.
In respect of the left knee, the insurer notes that the prior complaints were sufficient enough that the claimant was referred for an MRI.
The insurer refers to the hospital records, which include report of radiology of the left knee, which supports a finding of soft tissue injury only.
In respect of the lumbar spine, the insurer submits that the wedge fracture is more in keeping with the existing degenerative changes. The insurer disputes that the claimant suffered a lumbar spine injury due to the accident and further, there is no evidence of radiculopathy in accordance with the Guidelines.
The insurer disputes that the claimant suffered an injury to the cervical spine as a result of the accident. It is noted that there was a denial of cervical spine tenderness to ambulance personnel and a cervical spine X-ray of 1 July 2020 demonstrated no acute pathology.
The insurer disputes an injury to the right and left arms/hand given the lack of evidence of complaint by the claimant following the accident.
In respect of the right knee, the insurer submits that the claimant has a history of pain in both knees and that any abrasion of the right knee would have healed and would constitute a “non minor injury”.
Lastly, in relation to the alleged injury to the parotid glands the insurer notes that the ambulance report notes there to be no head strike and no head or facial injuries. It is also noted that the discharge referral from the Campbelltown Hospital noted that the claimant did not hit her head.
Insurer’s submissions dated 19 June 2020
The insurer essentially submits that the claimant’s application to assess a permanent impairment dispute ought to be dismissed on the basis that the application did not include any evidence that the injuries exceed the 10% WPI threshold.
Claim form
In her application for personal injury benefits (claim form) dated 14 July 2020 the claimant lists injuries as follows: left leg + knee, lower back, neck, right arm + hand, left hand.
NSW Ambulance
The report of the ambulance personnel notes the claimant was laying laterally on her left side. It notes the claimant was hit by a vehicle travelling at low speed, less than 10kmph. She is said to have landed on her left knee and her head landed on her large handbag with nil head strike, no loss of consciousness. The claimant complained of pain to the left knee. Nil pain was noted on palpation of the back. Also noted was nil hip/pelvis pain and nil upper limb injuries. An injury to the left knee is noted with swelling and no obvious deformity. A small abrasion to the right shin is noted.
Hospital
The Emergency Department (ED) discharge referral of Campbelltown Hospital dated
19 June 2020 notes the claimant suffered an injury to her left knee. On examination, the knee was noted as swollen and tender with restricted range of movement. An X-ray of the knee did not reveal a fracture. She was discharged with crutches.
The history of presenting complaint records the claimant being hit by a car travelling at 30-40 km/hr and hit the side of the left knee and grazed her right knee. A note of “no back pain” was made.
On examination, no cervical/midline tenderness and normal neck movements were noted. Upper limb tone was normal, with normal power. Tone was also noted as normal in the lower limb, but power of the left limb was difficult to elicit given the pain.
Radiology
X-ray cervical and lumbar spine, X-ray chest – 1 July 2020 – left-sided neural foraminal narrowing at C5/C6, C6/7. Surgical clips were noted presumably from previous thyroid surgery. The lumbar spine curved to the left and a mild anterior wedging of the T12 vertebral body at 10% noted. No neural foraminal narrowing and no bony lesion.
CT cervical spine 28 October 2020 – neck pain is noted as the clinical background. Degenerative issues noted at several levels and some disc bulging. At C6/7 level there was a shallow posterior bulging causing mild ventral thecal sac indentation.
CT Lumbar spine 28 October 2020 – alignment was noted as normal and no vertebral compression. A protrusion at the L3/4 is noted with some mild left foraminal narrowing with no impingement.
Ultrasound of left knee 24 November 2020 – bulging of the medial meniscus “which would be better evaluated with MRI”. A bony irregularity of the medial joint space noted, degenerative in nature, “better evaluated with X-ray.”
Left and right feet X-ray 11 February 2019 – degenerative changes were noted.
Mac-Field Medical Practice clinical file
In an insurer questionnaire dated 15 October 2020, GP Dr Zaman, states the claimant has neck and back pain with radiculopathy and pain in the left knee.
In a certificate of capacity/fitness dated 23 June 2020 the doctor notes a diagnosis of motor accident followed by neck and back pain with radiculopathy.
The clinical notes confirm the claimant attending upon Dr Zaman on 23 June 2020 after the accident. The claimant is noted to have pain in the knees and chest, neck and back with radiculopathy, together with abrasion to the right knee and a bruise to the left knee.
On 29 July 2020 the claimant is noted to have had neck pain and back pain with radiculopathy to both hands mostly in the left hand and both legs. She was also noted to have headache and no chest pain. Some pain to the left knee is noted.
A CT scan referral for the cervical and lumbar spines was provided on 19 August 2020.
Prior to the accident, a note of shoulder pain is made on 19 November 2019. Neck and back pain is noted on 3 September 2019, with pins and needles.
An MRI of both knees referral was provided on 7 January 2019, with ongoing complaints of knee pain up until 18 October 2018. On such date the claimant was noted to have had left knee pain since “cleaning her room” eight years prior. She was noted to have twisted her knees.
RE-EXAMINATION
Ms Tugaga attended the Commission’s Medical Suite on 17 October 2024. She was 25 minutes late for the appointment which was at 2.00pm. The examination finished at 3.34pm. Her daughter, Darlene Tugaga, also attended.
History of motor vehicle accident
Ms Tugaga stated that she had gone to Bob Jane T-Mart with her husband to have her car tyres repaired. While standing in front of the shop, a car hit her on the left side at low speed. She pointed to the left thigh and left lower back as the area that was struck by the car. She also said that she fell on her left side. She stayed on the ground.
Someone from Bob Jane called an ambulance. Ms Tugaga was put on a stretcher and put in an ambulance. She was taken to Campbelltown Hospital where X-rays were undertaken.
Ms Tugaga believes that the X-rays showed her spine was broken. Ms Tugaga has not had any subsequent treatment.
Current symptoms
Regarding current symptoms, Ms Tugaga reported pain when sitting or prolonged standing. She alternates sitting from standing. She had stiffness in her left knee, neck, and shoulder. She also has lower back pain and stiffness. On specific inquiry, she reported intermittent pins and needles in both hands and toes of both feet. The left knee swells intermittently, causing intermittent difficulty with weight-bearing activities;
“Comment: The description of the pins and needles in the upper and lower limbs was non dermatomal and does not meet the definition of non-verifiable radicular complaints as defined in the Motor Accident Guidelines, namely symptoms that follow the distribution of a specific nerve root. However, there are no objective clinical findings (signs) of nerve root dysfunction.”
Pre-accident medical history and relevant personal details
Ms Tugaga stated that she takes medications for hypertension, diabetes, cholesterol and a thyroid condition. On specific inquiry about pain medication, she stated that she takes occasional Panadol.
Ms Tugaga denied any pre-existing injuries to her knees or back.
Ms Tugaga resides with her four daughters and her son. She does not smoke or drink alcohol. Her children do the housework.
At the audiovisual conference with the claimant and the Panel on 19 December 2019, the claimant was reminded that she had denied any pre-existing injuries to her knees or back.
It was put to the claimant that the clinical record of Mac-Field Medical Practice documented prior complaints in the neck, back and knees and that she had been referred for an MRI of her knees. The claimant was not able to provide any explanation for such entries and maintained a denial of any previous issues to such body parts.
At the earlier re-examination, Medical Assessor Rogers pointed out to the claimant that no shoulder injury was listed on the claim form, which she could not explain. It was noted that the hospital notes did not refer to back, neck or shoulder pain, and she said that the neck pain started in the hospital. It was noted that the shoulder movement was inconsistent with previous examinations, and the claimant said that this was because the symptoms fluctuated from day to day. Medical Assessor Rogers noted the inconsistent range of movement of the left knee, which the claimant said was due to varying levels of pain. The claimant was asked what the problem was with her hands, and she stated this referred to pins and needles in both hands.
Clinical examination
Ms Tugaga consented to proceed with the examination. She was advised to move only within her comfort zone. At the first sign of pain or tenderness for a given test, the test was ceased.
Ms Tugaga was a pleasant lady of stated age. She walked with a flat footed but regular gait. She squatted to ¼ normal range. Weight was 107.6kg and height was 168cm giving a Body Mass Index of 38.
Cervical spine
There was no deformity of the cervical spine. There was no muscle guarding of the cervical spine. Power in the upper limbs was Grade 5/5 (normal). The tone in the upper limbs was normal. There was no sensory deficit to light touch in the upper limbs. The biceps, supinator and triceps reflexes were normal and symmetrical.
In regard to the cervical spine range of movement, forward flexion was 90% normal range, extension was 70% normal range, right lateral flexion was 45% normal range, left lateral flexion was 45% normal range, and rotation to the right and to the left was 75% normal range. There was mild dysmetria observed.
Upper arm circumference measured 10cm proximal to the olecranon was 38.5cm in the left and 38cm in the right. Forearm circumference as measured 10cm distal to the olecranon was 31.5cm in the right and 31cm in the left arm. The slightly increased right upper arm circumference is consistent with right arm dominance.
The findings satisfy the DRE II– which gives rise to a 5% WPI (AMA 4 page 104 the Guidelines) page 6.
Lumbar spine
There was no deformity of the lumbar spine. There was no muscle guarding.
With regards to the lumbar spine range of movement, forward flexion was 80% normal range, extension was 80% normal range, right lateral flexion was 80% normal range, left lateral flexion was 80% normal range and rotation to the right and left was 100% normal range. No dysmetria was present.
Seated straight leg raising was to 90° bilaterally and was not accompanied by complaints of pain. Knee reflexes and ankle reflexes were symmetrically decreased.
Thigh circumference was 53cm in the left and 53cm in the right thigh measured 8cm proximal to the upper border of the patella. Left calf circumference was 42.5cm and right calf circumference was 42cm measured 10cm from the tibial tubercle.
Power was grade 5/5 (normal). There was reduced sensation to light touch in a stocking distribution bilaterally.
Table 6.8 of the Guidelines states that non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (sings) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes). The reduced sensation did not follow the distribution of a specific nerve root and therefore was not consistent with non-verifiable radicular complaints. Overall, there were no signs of radiculopathy as defined in the Guidelines.
The injury to the lumbar spine gives rise to a 0% whole person impairment – ref: AMA 4 page 102 Guidelines page 6.
Left knee
Hip, knee and ankle alignment were within normal limits clinically. Skin temperature and colour in the lower limbs were normal.
With regard to the left knee there was a mild effusion, medial joint line and infrapatellar tenderness. McMurray’s test was negative. The right knee was normal to examination.
The range of motion of the knees was assessed with a goniometer and the results are as follows:
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
70° (supine) 110° (sitting)
Extension
0°
5°
The findings give rise to a WPI of 4% for the left knee. Ref: Table 41 table 78 of the AMA 4 Guides.
Right shoulder
The shoulder contour was symmetrical. The range of motion of the shoulders was assessed with a goniometer on three separate occasions and the results are as follows:
Shoulder Movement
Active ROM
RIGHT
Active ROM
LEFT
Flexion
110°
110°
Extension
50°
50°
Abduction
160°
160°
Adduction
40°
40°
Internal Rotation
80°
80°
External Rotation
80°
80°
Elbows
There was no deformity, scars, tenderness or crepitus of the elbows.
The range of motion of the elbows measured with a goniometer was as follows:
Elbow Movement
Active ROM
RIGHT
Active ROM
LEFT
Flexion
140°
140°
Extension
0°
0°
Pronation
90°
90°
Supination
90°
90°
Wrists
There was no deformity or muscle wasting of the wrists or hands. Tinel’s sign was negative bilaterally.
Range of motion of the wrists was assessed with a goniometer and was as follows:
Active ROM
RIGHT
Active ROM
LEFT
Flexion
80°
80°
Extension
70°
70°
Radial Deviation
20°
30°
Ulnar Deviation
30°
30°
Diagnosis and Causation
Cervical spine
The Panel are satisfied that the mechanism of injury could cause a cervical spine injury. The diagnosis reached is aggravation of pre-existing degenerative changes.
As to the question of whether the subject accident caused the cervical spine injury, the Panel notes the absence of recorded cervical spine complaints within the Ambulance report and hospital records. However, the claimant did complain of neck pain to her GP in the days following the accident and radiology was undertaken. The prior complaint of neck pain is noted, however, the Panel accepts the claimant suffered an aggravation of her pre-existing degenerative changes noting the emergence of complaint soon after the accident. Accordingly, the Panel is satisfied, on the balance of probabilities that the cervical spine injury was caused by the motor accident.
The examination findings as set out above do not satisfy the criteria for radiculopathy as set out in the Guidelines. The injury is a threshold injury for the purposes of the MAI Act.
Lumbar spine
The Panel are satisfied that the mechanism of injury could cause a lumbar spine injury. The diagnosis reached is aggravation of pre-existing degenerative changes.
As to the question of whether the subject accident caused the lumbar spine injury, the Panel notes the absence of recorded lumbar spine complaints within the Ambulance report and hospital records. However, the claimant did complain of back pain to her GP in the days following the accident and radiology was undertaken. The prior complaint of back pain is noted, however, the Panel accepts the claimant suffered an aggravation of her pre-existing degenerative changes noting the emergence of complaint soon after the accident. Accordingly, the Panel is satisfied, on the balance of probabilities that the cervical spine injury was caused by the motor accident.
The examination findings as set out above do not satisfy the criteria for radiculopathy as set out in the Guidelines. The wedge fracture referred to in the claimant’s submissions is a wedge fracture to the thoracic spine (T12) not the lumbar spine. In any event, had the motor accident given rise to such a fracture significant acute symptoms would have occurred, and the contemporaneous evidence (including hospital and ambulance records) do not support the fracture arising from the motor accident.
The injury to the lumbar spine is a threshold injury for the purposes of the MAI Act.
Left arm and hand
The mechanism of injury as described, including the fact the fall was onto the claimant’s left knee without any report of outstretched arms does not support a finding that the accident could have caused a left upper extremity injury. Further, the contemporaneous medical evidence does not reveal complaints related to the upper limbs.
Right arm and hand
The mechanism of injury as described, including the fact the fall was onto the claimant’s left knee without any report of outstretched arms does not support a finding that the accident could have caused a left upper extremity injury. Further, the contemporaneous medical evidence does not reveal complaints related to the upper limbs.
Left leg and left knee
Examination and medical evidence support a diagnosis of aggravation of pre-existing degenerative changes of the left knee caused by the motor accident. The record of complaint to the left knee is consistently present since the date of the accident, and the mechanism of injury is likely to have given rise to the diagnosis.
The Panel is not satisfied on the evidence available that the claimant suffered a meniscus tear as a result of the subject accident. The clinical findings by Medical Assessor Rogers on re-examination are not sufficient to diagnose such an injury, and there is a lack of radiological evidence to verify such a diagnosis.
The record of bulging in the ultrasound report is noted, however, bulging can be consistent with a number of possibilities and not necessarily consistent with a meniscal tear.
The Panel accepts that it is possible that the accident may have caused a tear, however, the evidence does not support a finding on the balance of probabilities that a tear did occur.
The evidence and examination findings are consistent with a soft tissue injury. Accordingly, the injury to the left leg/knee is a threshold injury for the purposes of the MAI Act.
CONCLUSION
The Panel finds the claimant suffered the following injuries as a result of the motor accident:
(a) cervical spine - aggravation of pre-existing degenerative changes;
(b) lumber spine - aggravation of pre-existing degenerative changes, and
(c) left leg and knee – soft tissue injury.
The above injuries are threshold injuries for the purposes of the MAI Act.
The claimant’s level of WPI arising from injuries caused by the accident is 9% (4% for the left knee combined with 5% for the cervical spine).
It follows that the Panel revokes the certificate of Medical Assessor McGrath. A new certificate is issued at the beginning of these reasons.
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