QBE Insurance (Australia) Limited v Washbourne
[2024] NSWPICMP 500
•25 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Washbourne [2024] NSWPICMP 500 |
CLAIMANT: | Daniel Washbourne |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 25 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI); determination by Medical Assessor that WPI was 21%; injuries alleged shoulders and cervical spine; claimant was delivering a side of meat to a butcher shop when he was hit by the insured vehicle on the right shoulder and fell onto the left shoulder; claimant had degenerative changes in his shoulder and cervical spine; insurer argued current impairment not caused by accident; Held – mechanism of accident could have caused injury to left and right shoulder and neck; claimant did injure his neck, left and right shoulder; no objective evidence of a pre-existing impairment and therefore no need to apportion; WPI assessed at 11%; Medical Assessment Certificate revoked; no matter of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certification by Assessor Nair of 17 November 2023 in relation to the degree of the claimant’s whole person impairment. 2. Certifies that the injuries sustained by Daniel Washbourne in the motor accident on |
STATEMENT OF REASONS
INTRODUCTION
Daniel Washbourne was involved in a motor accident on 12 December 2019. At the time of the accident, he was almost 45 years of age.
Mr Washbourne says he injured his neck and shoulders in the accident. On or about 22 January 2020 he made a claim for statutory benefits with QBE, the third-party insurer of the vehicle that hit him.
A medical dispute about the nature of the claimant’s injuries and whether any of his injuries are “threshold injuries” has arisen in connection with that claim, and Mr Washbourne referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On or about 30 July 2021, Mr Washbourne made a claim against QBE for damages. A dispute about the degree of whole person impairment resulting from the claimant’s injuries has arisen in that claim and was also referred to the Commission for assessment.
On 17 November 2023, Medical Assessor Nair determined Mr Washbourne’s injuries were not threshold injuries and that he had a WPI of 21%.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decisions. On 16 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 19 February 2024 the President’s delegate convened this Panel to conduct the Review.
The insurer has subsequently advised that there is no longer a dispute about threshold injury as the claimant has been found to have a non-threshold psychiatric injury and that the only medical dispute currently between the parties is the degree of the claimant’s WPI.
LEGISLATIVE FRAMEWORK
General provisions
Mr Washbourne’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation or damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute Resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Nair examined the claimant on 29 September 2023 and issued a single document on 17 November 2023. That document comprises:
(a) certification of the assessment of the threshold injury dispute;
(b) certification of the assessment of the WPI dispute, and
(c) reasons for both decisions.
He confirms at [2] and [3] that he was referred the following injuries for assessment:
(a) shoulders – labral tears, and
(b) cervical spine – musculoligamentous
The claimant gave Medical Assessor Nair the following histories:
(a) he had no relevant previous medical history [9];
(b) he was making a delivery to a butcher shop when he was struck by a passing truck and knocked to the ground [10];
(c) he developed pain in this neck and then shoulders (left more than right) and has been treated by orthopaedic surgeon Dr Chin and has had surgery to the right shoulder in June 2020 and left shoulder February 2021 [11], and
(d) he has also seen neurosurgeon Dr Lee for a corticosteroid injection which have not helped, and he has seen a pain specialist, Dr Mohabati [11].
Medical Assessor Nair notes that the claimant has “significant pain and stiffness in both shoulders” and “in the sub-axial and cervical spine” [13]. The claimant said he was taking analgesics and that no further treatment was planned.
On examination of the claimant’s cervical spine, Medical Assessor Nair records:
(a) a 20% global restriction in neck movements;
(b) normal and symmetrical reflexes;
(c) Hoffman’s test (a possible indicator of radiculopathy if positive), and
(d) no paraesthesia was present.
On examination of the shoulders the claimant avoided movement and had surgical scars. The range of motion was recorded as:
Normal
Right shoulder
Left Shoulder
Flexion
180
120
120
Extension
50
30
30
Abduction
180
90
90
Adduction
50
10
10
Internal rotation
90
50
50
External rotation
90
50
50
The Medical Assessor says there was dysmetria with movement of the shoulders a reduction of rotator cuff power by one fifth in both shoulders.
After reviewing the documentation and imaging he concluded that the shoulder and neck injuries were not threshold injuries and that the claimant’s WPI was 21%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer argues the Medical Assessor did not disclose his path of reasoning regarding causation for all of the claimant’s injuries and did not engage with the insurer’s arguments concerning pre-existing conditions.
The insurer points to the brevity of the decision, that the Medical Assessor says there were “no additional documents” when earlier he says additional documents were provided.
The insurer says the assessor gave only cursory consideration to the medico legal reports and four radiology reports.
The insurer noted the Medical Assessor’s diagnosis of a musculoligamentous injury which is a soft tissue injury and therefore a threshold injury. In terms of the labral tears the insurer said Medical Assessor Nair did not engage with the opinion of Associate Professor Shatwell who was of the view the labral disruption on MRI scans were longstanding and not related to the accident.
Finally, the insurer points to a calculation error and the Medical Assessor’s failure to consider apportionment of WPI for a pre-existing condition.
Claimant’s submissions
The claimant says his shoulder injuries were caused by the accident and refers to reports from Dr Chin and Dr Korber.
The claimant acknowledges the Medical Assessor did not refer to the contemporaneous documents but says he does not have to.
The claimant also appears to acknowledge he worked as a delivery driver carrying meat and his duties were heavy. However, the claimant says he had no restrictions performing his duties until after the accident. He says there is no objective evidence of a pre-existing symptomatic permanent impairment at the time of the accident.
Procedural matters
On 23 February 2024 the Panel issued directions to the parties. The claimant was to upload a bundle of documents relied upon by 15 March 2024, and the insurer was given until
22 March 2024. The claimant’s bundle of nearly 750 pages was lodged on 15 March 2024 and the insurer’s bundle of nearly 350 pages was lodged on 18 March 2024.
On 9 April 2024 the Panel met to discuss the proceedings and reported to the parties the next day.
The Panel noted there were two disputes before the Panel, a threshold injury dispute and a WPI dispute. The Panel asked:
(a) the insurer to agree the claimant was injured when he was hit by the insured vehicle and fell to the ground;
(b) the claimant whether he alleged his neck injury was not a threshold injury in which case what specific or particular neck injury he alleged;
(c) the insurer to agree that if caused, a labral tear would be a non-threshold injury; and
(d) the insurer to provide references to the evidence that support the allegation of a pre-existing symptomatic impairment.
The parties were advised of the medical re-examination and the insurer was asked to provide a fresh bundle of documents noting the poor quality of some of the documents.
Further responses
The claimant responded saying “it is not maintained the claimant’s neck injury is a non-threshold injury.” The Panel has interpreted that to mean there is no longer a dispute about whether any of the claimant’s injuries are threshold injuries.
The insurer responded saying:
(a) the insurer agrees with the mechanism of injury identified by the Panel and agrees the claimant was struck, fell to the ground and sustained some injury [6];
(b) the insurer maintains there is an issue of causation in respect of the extent of the neck and shoulder injuries [13];
(c) the insurer concedes the claimant has a non-threshold psychiatric injury and has issued a revised liability notice on 13 July 2023 [14];
(d) the insurer sets out at [20] – [25] relevant excerpts from the records and says that the claimant “had a long pre-accident history of bilateral shoulder pain, with gradually worsening symptoms’ and likely impingement”, and
(e) that the report of Dr Korber should be given little or no weight and that the claimant has not satisfied the burden of proof in establishing the left shoulder tear was causally related to the accident.”
The insurer provided a revised bundle of only 53 pages.
REVIEW OF THE EVIDENCE
General observations
The insurer’s bundle of documents reduced from 350 pages to 53. The claimant’s bundle of documents comprised nearly 750 pages. While the Panel has considered the bundles in their totality, the Panel does not intend to refer to all of the documents filed but only those documents the Panel considers relevant to the matters in dispute.
The claimant has included submissions on damages not entirely relevant to these proceedings.
The claimant also included material relevant to the factual circumstances of the accident. This was because initially there was a dispute about liability caused by the insured driver’s allegation of a different version of events. The insurer subsequently admitted that version of events was not correct and accepted the claimant’s version of events.
Finally, the claimant has alleged a psychiatric injury and there are a number of reports and records relating to that. Those records and reports will not be referred to noting the Panel is considering the claimant’s physical injuries only.
Pre-accident records
It appears the claimant has attended the MyDoctors Medical Centre at Macquarie Fields since 2007. Records from before and after the accident have been produced in two separate bundles.
Before the accident are the following entries and matters of relevance:
(a) 18 January 2010 - thrown out of truck when a crane snapped off “bruised Lt knee and shoulder”. No fracture in knee and femur awaiting results for x-ray shoulder;
(b) 20 January 2010 - unable to retrieve information re CT scan shoulder still suffering from left knee pain;
(c) 22 January 2010 - still limping with knee in a splint. There is reference to a workers compensation claim and ongoing physiotherapy at several following consultations. Knee complaints were made but it appears no further shoulder complaints. In June 2010 the claimant was prescribed Tramal and the claimant returned to work on or about 10 July 2020 but by 19 July 2010 his knee was swollen and sore;
(d) 31 August 2010 - left shoulder pain, limited range of motion and tenderness along the joint line. The left shoulder was complained of again on 13 September 2010 on 23 September 2010 he reported he could use his left shoulder which was fine;
(e) on 25 February 2011 the claimant attended with a right foot injury sustained at work;
(f) on 11 July 2011 Dr Guirguis records that the claimant was involved in a motor bike accident and bruised his right knee and was seen in accident and emergency four weeks previously. The claimant took five days off work was slightly tender but had a full range of motion. The claimant complained of right knee pain in February 2012;
(g) 3 August 2011 - the claimant had sustained a thumb injury from football;
(h) on 17 November 2011 the claimant sustained a left ankle injury “coming off a truck”;
(i) on 11 September 2012 the claimant was pulling a trolly on the back of a truck when he felt pain on the left shoulder and neck. There was a full range of motion in the neck and left shoulder with tingling down to the middle of the left arm;
(j) 15 March 2013 - there is reference to a head injury at the age of two (he attended for a hard lump on the frontal bone);
(k) 20 September 2013 - the claimant injured his hand at work;
(l) 8 May 2014 - worked on a truck and felt pain in the palm muscle and wrist. He had an x-ray and was followed up the next day with “all ok”;
(m) 9 December 2014 - the claimant attended having been “bashed, kicked in the head by guards at Penrith Leagues Club at 2 am on Sunday.”;
(n) 16 August 2016 - the claimant attended Dr Cheong complaining of a rectal bleed and “bilateral shoulder pains for years, used to lift heavy weights in the gym – gradually worsening symptoms clinically likely impingement X-ray and ultrasound to confirm may need physio and injection.” The claimant was given a referral to Dr Wilson. There are no further attendances in relation to this;
(o) 28 November 2016 - lower back pain since driving a truck due to seat issues but the claimant had a good range of movement and straight leg raising was negative;
(p) 19 April 2018 - the claimant injured his right ring finger while at work;
(q) in late December 2018 and in January 2019 the claimant attended for chest pains which could have been anxiety;
(r) 25 February 2019 - the claimant was injured after being punched, he worked the whole day made a police report and was told to see his GP. He denied any numbness or abnormal sensation or weakness in his arms or legs but there was paraspinal tenderness and swelling;
(s) 3 June 2019 - the claimant had lost a tooth during a rugby game, and
(t) 4 October 2019 – the claimant attended due to financial stress since an accident six months earlier that led to police charges and the loss of his job. The claimant said he was unable to get work and was provided with a Centrelink Medical Certificate.
Claim form and claim documents
The insurer relies on the police report noting that the claimant was a pedestrian struck deliberately by another car at 10 kms per hour. The police report indicates it was a “no injury case”.
The NSW Ambulance report records a dispute between the claimant and the driver of a tipper truck who drove forward and hit the claimant at about 5kms. The claimant was said to have been hit on the right shoulder and had fallen to the ground. He declined transport, was advised to see his GP, and did not complain of neck pain. He did complain of right shoulder pain but there were no obvious injuries and reduced movement in the right shoulder.
The claimant’s application for personal injury benefits (claim form) dated 22 January 2020 describes his injuries as “right and left shoulders mainly my right and neck pain.”
The insurer’s revised liability notice of 13 July 2023[5] accepts the determination of Medical Assessor Smith that the claimant has a non-threshold psychiatric injury. The insurer confirmed that the WPI dispute remains on foot.
[5] Provided after the Panel’s first teleconference.
The claimant provided a statement[6] noting that his duties involved unloading meat from a truck and delivering it to butcher shops. He says on a typical day he would carry about 3,000 – 5,000 kgs of meat. He says “it was heavy work” but that he did not have any problems or restrictions. He said in 2019 he was playing rugby league. The claimant says he started work with his current employer in October 2019 and before that had worked in the transport industry.
[6] Page 30 of the claimant’s bundle.
In his statement, the claimant describes the mechanism of injury as a hit on the right side (including his right shoulder) which knocked him off his feet and he fell to the left, one to two meters away.
Mr Washbourne also provided a handwritten statement setting out his disabilities and difficulties with activities of daily living[7].
[7] Page 58 of the claimant’s bundle.
The claimant’s partner and two of his friends have also provided statements which suggest the accident has had a significant impact on the claimant’s life.
Treating medical records and reports
The claimant provided records from Camden and Campbelltown Hospitals. Within those is an entry from 25 May 2008 relating to a neck injury in a game of rugby, right knee pain in June 2011 after a motor bike with “mild shoulder pain”; bleeding from the bowel in September 2018 and chest complaints in January 2019. The letter to the claimant’s GP after the 2011 motor bike accident suggests no abnormality in the left shoulder but the right shoulder was tender over the AC joint, had limited range of motion but normal strength and X-ray revealed no fracture. The Panel notes there was no corresponding GP record at around this date but that a month later, on 11 July 2011 the claimant complained of a bruised right knee from that accident and not the right shoulder.
The claimant attended on Dr El Naouchi of MyDoctors Macquarie Fields on 12 December 2019. The claimant reported being hit by a truck earlier that day and that he was hit on the right side and fell to his left side. He complained of “marked right shoulder pain” and pain at the right side of his neck. Both the right and the left shoulder had restricted movement.
There are multiple attendances thereafter for the purposes of providing work cover certificates. The claimant appears keen to return to work on suitable duties.
Dr Keriaqos referred the claimant to Dr Chin on 10 February 2020. Dr Keriaqos refers to “right shoulder pain related to motor vehicle injury on 12/12/19.”
Dr Keriaqos referred the claimant to Dr Chin on 11 June 2020 for “left shoulder pain.”
Both the claimant and the insurer rely on reports from Dr Chin, orthopaedic surgeon:
(a) the first dated 2 April 2020[8] refers to the accident and a fall onto his left side and left and right shoulder pain since then. Dr Chin has a history of no prior pain in the shoulder, and the claimant was functioning well. The claimant’s main problem was the right shoulder with pain and pins and needles radiating into the hand. The former was to be investigated with an MRI of the shoulder, the latter Dr Chin did not consider to be related to the shoulder injury;
(b) the second dated 30 April 2020.[9] Dr Chin expresses the view that “the arthritic type changes were not caused by his accident, but his labral tear is certainly the result of this accident.” He offered surgery to repair the labrum which would decrease the pain but would not change the arthritis;
(c) on 24 June 2020[10] Dr Chin wrote an operation report about the right shoulder labral tear and biceps tendinopathy with Type II acromion done at Sydney Southwest Private Hospital. A labral tear was noted, the labrum was frayed and there were longitudinal splits in the biceps;
(d) in a letter to Dr Keriaqos on 9 July 2020, Dr Chin noted it was two weeks since the surgery and physiotherapy was to begin. He now noted “ongoing pain in his left shoulder”. And an MRI report had apparently been obtained but not seen;
(e) on 6 August 2020, Dr Chin said the claimant was progressing quite well and physiotherapy was improving his range of movement. However, the claimant was concerned about his left shoulder. There were features not related to the accident but “a labral tear which again is similar to the contralateral shoulder”. He proposed the same operation;
(f) on 26 August 2020 Dr Chin responded to a letter / questionnaire from EML[11]. Dr Chin’s handwritten notes say that the claimant complained of pain in both shoulders at the first consultation and that if he fell onto his left shoulder, his left shoulder will have been injured. He identified pre-existing osteoarthritis in both shoulders. He thought the claimant would be fit 26 weeks after the operation and supported physiotherapy one to two times a week for six months;
(g) on 25 February 2021 left shoulder surgery was done. There was loose body in the glenohumeral joint which was removed and a labral tear which was repaired;
(h) on 9 March 2021 Dr Chin reported that the claimant was doing well and that he was likely to recover a reasonable range of motion but that the arthritis will prevent him from dong heavy manual work, and
(i) in the letter of 10 June 2021 Dr Chin noted the claimant was still struggling and required more physiotherapy.
[8] Page 27 of the insurer’s bundle.
[9] Pages 23 and 31of the insurer’s bundle.
[10] Page 32 of the insurer’s bundle.
[11] Page 27 of the insurer’s revised bundle.
Dr Keriaqos referred the claimant to Dr Lee. Neurosurgeon on 8 March 2021. The terms of the referral include the following:
“He has had a work cover claim regarding both shoulder injury and neck injury. He put the neck pain as a referred pain from the shoulder and that’s why he didn’t proceed with further management of neck pain. He states that he never had any neck pain prior to the incident.”
The claimant relies on the records of Dr Lee including the following letters to Dr Keriaqos:
(a) 21 April 2021 – the claimant gave a history of nearly two years of neck and shoulder pain following his accident. She has a detailed and consistent history of the accident and the claimant said that at first he should his neck pain was related to his shoulder pain. The claimant gave no history of previous neck or shoulder pain. She notes “slight reduction of cervical spine range of motion” and there was tenderness but a normal neurological examination. She formed the view on the basis of the absence of previous issues that the neck and shoulder pain was related to the accident. She requested further investigation and review;
(b) 21 June 2021 – the claimant had a bone scan and SPECT CT which revealed arthritis in the left shoulder. The claimant was complaining of neck pain in the midline spreading down his shoulders into his arms. She considered there were arthritic changes and possible impingement of the nerve root at C6/7 and C5/6. She recommended further treatment including injections and medications, and
(c) 9 September 2021 – the perineural cortisone injections had given minimal benefit and she further adjusted the claimant’s medication and suggested a left shoulder cortisone injection. Dr Lee also recommended a new bed as the claimant was having difficulty sleeping.
The claimant’s physiotherapist Mr Wu provided a short report dated 12 July 2021 requesting the claimant be provided with a new bed. He reports that the claimant had been treated by him and that his injured have led to pain and loss of function and surgery. He says, “despite these setbacks Daniel has been committed and diligent in his rehabilitation.”
The claimant was referred to Dr Wallace, pain specialist and was seen on 27 February 2024.The claimant complained of right more than left shoulder pain and neck pain worse on the left than the right. The pain was described as tight, stabbing with pain radiating down the arms to the elbows and fingers. The claimant was taking Panadeine Forte and was described after testing of having “severe depression, anxiety and distress… low self-efficacy … high levels of catastrophic thinking …” The claimant was difficult to examine having a “massively reduced” range of motion in both shoulders.
Radiology
Right shoulder
On 16 December 2019 the claimant had an ultrasound of his right shoulder due to pain[12]. This reports:
(a) mildly thickened bursa consistent with bursitis, and
(b) synovial thickening of the AC joint.
[12] Page 25 of the insurer’s bundle.
On 9 April 2020 the claimant had an X-ray of his right shoulder at the request of Dr Chin. There was osteoarthritis in the acromioclavicular joint and in the glenohumeral joint and some irregularity of the glenoid articular surface. There was also a benign enchondroma reported.
An MRI on the same day reported:
(a) mild supraspinatus and infraspinatus tendinosis but no tear;
(b) mild subscapularis and intrascapular biceps long head tendinosis but no longitudinal split tear;
(c) superior labral tear involving the biceps anchor with paralabral cysts;
(d) glenohumeral joint osteoarthritis;
(e) acromioclavicular joint osteoarthritis, and
(f) an enchondroma.
On 5 June 2020 the clamant had an MRI at the request of Dr Keriaqos due to “tingling and numbness right fingers and pain right shoulder”. There was disc degeneration at C5/6, and a minimal disc bulge at C6/7 not compressing the thecal sac. There were degenerative changes in the joints at C3/4 with mild right-side foramen stenosis.
Left shoulder
On 5 June 2020 the claimant also had an MRI of the left shoulder with this history “now started to have left shoulder pain.” The findings were:
(a) fluid in the bursa suggestive of bursitis;
(b) an intact rotator cuff, and
(c) “severe” glenohumeral osteoarthrosis with degenerative labral tearing and associated ganglion formation.
An MRI of the right shoulder on 17 August 2020 was done noting the surgery had been performed but that “after improvement started to develop pain.” The rotator cuff was intact, there was evidence of bursitis but the post-surgical changes were satisfactory.
An MRI of Mr Washbourne’s left shoulder was performed on 27 September 2021 due to “flare up of left shoulder pain.” The reported findings were:
(a) marked glenohumeral and acromioclavicular joint osteoarthritis;
(b) degenerative tear of posterior labrum;
(c) mild effusion, and
(d) ruptured long head of biceps tendon but rotator cuff otherwise intact.
Medico-legal reports
Dr Antoun, general practitioner, was asked by the insurer to provide a report on the relationship between the accident and the pathology in the claimant’s shoulders. On 12 October 2021 he expressed the view that:
“Mr Washbourne's complaints are consistent with soft tissue injuries and the reported shoulder pathology and labrum tears are degenerative, longstanding, chronic in nature and not related to the claimed event.”
The workers compensation insurer obtained a report from Associate Professor Miniter, orthopaedic surgeon, dated 21 February 2022. He considered there were “a number of non-physical features noted at today’s presentation.” He remarked that the claimant could barely move his shoulders and records only 60 degrees of abduction and 10 degrees of internal rotation.
Associate Professor Shatwell provided a report to the motor accident insurer dated 4 March 2022. He has a consistent history of the claimant being hit on the right side and falling to his left side while carrying meat over his right shoulder.
After conducting a thorough review of the medical records, Associate Professor Shatwell takes a history of the claimant’s work (which included as a brickie’s labourer) and his lengthy sporting career (in rugby league).
On examination of the neck, there was asymmetrical loss of motion in flexion and extension and significant loss of shoulder motion with pain.
Associate Professor Shatwell expressed the view that the claimant had significant osteoarthritis in the shoulders and that “the fall caused by the motor accident did not cause any major disruption of Mr Washbourne’s shoulders.” He found no WPI related to the accident.
Dr Bodel, orthopaedic surgeon, provided a report to the claimant’s solicitors dated
1 September 2022. He has a history of the claimant’s employment commencing in September or October 2019 and that it was heavy work requiring the claimant to carry sides of meat from 80 to 120 kg. Dr Bodel has a history of an injury to the neck and both shoulders.
Dr Bodel has a consistent history of the accident and the claimant’s treatment and there being no previous issues with his neck or shoulders.
On examination there was tenderness at the base of the neck and guarding was present with restriction of neck movements. The shoulders were also restricted and the measurements obtained by Medical Assessor Bodel have been included in the table annexed to these reasons.
Dr Bodel diagnosed a soft tissue injury to the neck and rotator cuff injuries and labral tears in both shoulders and post-operative scarring. He considered the partial thickness tears in the labrum in both shoulders was caused by the accident.
Dr Bodel assessed impairment in each shoulder at 8%, 5% for the neck injury and added 2% for scarring impairment giving a total of 21%.
The claimant relies on a report from Dr Korber, radiologist, dated 19 December 2022. Dr Korber was asked to review the radiology and comment on whether he thought the pathology shown after the accident was caused by the accident.
Dr Korber had a history of the claimant’s motorbike injury in 2011 and a right AC joint issue with some restricted range of motion.
Dr Korber said:
“You have asked several questions about whether certain areas were aggravated or injured. Without pre-accident imaging it is not possible to be categoric. Clearly much of what is seen in the claimant’s shoulder was present pre-accident. Clinical assessment is the gold standard for assessing whether a particular part of the anatomy is symptomatic or not. The claimants’ shoulders [were] asymptomatic pre-accident, as evidenced by lack of recent clinical presentation, as well as the ability to perform at work, as well as having the ability to play older aged sport. To that end, I note that you have searched the Medicare and PBS records for four years prior to the motor vehicle accident and no details of treatment for shoulder injuries were uncovered. I would regard this as reasonable proof.”
Dr Korber then reviewed the 9 April 2020 MRI of the right shoulder and the 5 June 2020 MRI of the left shoulder and noted the claimant’s complaints of right shoulder pain soon after the accident and that the claimant said he fell on his left shoulder. He notes no evidence of previous problems and says that the MRI done four months after the accident would not show signs of acute injury.
He considered the right “SLAP tear was partially caused by or perhaps extended as a result of the accident.” In relation to the left shoulder, he was of the view the major issue was osteoarthritis and described the shoulder as “very abnormal” and he was of the view that in some way there was an injury to a ligament tendon or cartilage and was also a non-minor injury.”
Dr Shatwell provided a supplementary report to the insurer dated 5 April 2023 dealing with issues Mr Washbourne had raised with his report[13]. Dr Shatwell declined to amend his report other than to confirm some typographical errors.
[13] Page 41 of the insurer’s bundle.
RE-EXAMINATION FINDINGS
Medical Assessor Gibson conducted the re-examination of the claimant in her rooms on 21 June 2024.
Mr Washbourne arrived at the assessment with a friend, but he was examined alone. He was co-operative in the giving of his history and gave fulsome answers to the questions that were asked. He genuinely appeared to try to remember the things put to him as raised by the insurer but was unable to recall many of them.
Past medical history
Mr Washbourne said that he had no prior history of neck or shoulder injury or pain. He added that if he had he would not have been able to manage his pre-subject accident occupation as a meat carrier, where he was carrying sides of meat weighing up to 130kg. He said prior to the accident he was "physically fit and strong." He also said that he had played football since the age of four years and had playing Masters Football (over 35 years) on a monthly basis up till the time of the accident having the occasional injury during that time but nothing significant.
He said that he was involved in a motorbike accident over 10 years ago and injured his right knee and he had undergone arthroscopy and debridement with good resolution of symptoms.
He sustained a work injury to his left knee over 15 years ago when he was thrown from a truck. He underwent arthroscopy and debridement of the knee and he had recovered.
He had right inguinal hernia repair at age 19 years.
He said there been no other injuries relating to motor vehicle accidents.
When asked about the notes of the general practitioner 4 October 2019, referring to a motor accident, he said that he had been driving a truck and had just exited a roundabout. There was a vehicle behind him which was getting impatient to take over and had then pulled in front of him and applied brakes. Mr Washbourne had pulled over. A fight had ensued. The other driver had told a different story to the police, which was accepted. Mr Washbourne was charged and placed on a two-year good behaviour bond.
I asked him about the various entries in his general practitioner’s clinical notes as raised by the insurer in the submissions. In relation to the entry of 18 January 2010 where it was noted that he had bruised his left knee and shoulder, he said he had already mentioned this incident when he referred to his left knee injury when he was thrown from a truck. However, he could not recall injuring the shoulder, but he did admit that maybe he had had some shoulder pain, if it was recorded by the doctor.
In relation to the entry on 31 August 2010 listing left shoulder pain he could not recall having this problem, nor could he recall shoulder complaints on 13 September 2010 or 23 September 2010.
He did recall the football injury to the thumb on 3 August 2011, and thought it may have been his left thumb.
He could not recall the right foot injury, or the left ankle trauma noted on 17 November 2011 or the 11 September 2012 entry where there was mention of left shoulder and neck pain.
In relation to the entry on 15 March 2013, he did agree that he had a head injury as a young child when he and his sister were playing on an abandoned truck, and he had gone to the Children's Hospital.
He had a Helicobacter infection over five years ago and this was treated and resolved.
He did not recall telling his doctor on 16 August 2016 that he had pain in both his shoulder for years and that he had lifted weights in the gym. He denied having physiotherapy or an injection or seeing a specialist at this time.
He acknowledged that he had sustained minor injuries at various times during the course of his employment.
Past occupational history
Mr Washbourne said he had worked as a paperboy from age 11, on a milk run from age 13 and then in a McDonald's restaurant from age 14.
He had completed Year 12 at school.
After leaving school, he was as a process worker with Ingham's Chicken. He worked there on a full-time basis for 18 months. He then left the job as he wanted a change.
He moved to Queensland to stay at his sister's place, but this had then burned down. He was in Queensland for six months but had not worked over that period.
He had worked as a pool builder on and off for 20 years, and this involved a lot of heavy labouring.
He had also worked as a flag boy/CSA1 with State Rail for two years. He lost the job after he was charged with assault. He explained that a customer had thrown some coins at him, which had hit him under the eye. He chased the customer and apprehended him but was then charged. He was sentenced to six months jail time which he served. He said he had no legal representation for that matter.
He qualified as a heavy rigid truck driver and then worked on a contractual basis. He was then a heavy combination vehicle driver with Scott's Refrigeration for three months. He said he left the job as did not like the type of trucks they were using. He was then in another driving job where he was carting containers, loading and unloading and side loading. He said he worked in that capacity for 10 years.
He commenced work as a meat carter in 2019 with SCF Cartage and he had been working on a full-time basis for three or four months prior to the subject accident. He said this was a salaried position. He drove a refrigerated truck and would have to cut down the meat at the store and then haul it into the truck. Some of the meat items could weigh up to 130kg. Sometimes there would be assistance with the carrying, but not always. He would generally start work around 4am, but on two days a week he would start at 3.30am so he could wash down the truck. He would finish work between 4 and 7pm, though his hours were quite variable dependent on business needs.
History of the subject accident
Mr Washbourne said he had been parked in a back alleyway. He had his hazard lights on. At the time there was no one else on the street. He had opened the doors of the store where he was making the delivery. He had then walked back and opened the back door of the truck. He then stated to pull down a ramp (the tray) from the back of the truck. He said he had to pull it out to its full extent before it could be placed on the ground. He had the ramp three-quarters of the way out of the truck when he heard a horn and a loud voice telling him to “move his f***ing truck”. He turned to look and there was a truck which was approaching and then crashed into his ramp. He said he had run from the truck to avoid being hit. Mr Washbourne became quite emotional as he described what happened next. He said he had pleaded with the other truck driver to give him a few minutes while he unloaded his truck. Mr Washbourne then climbed into the back of his truck and started unloading the meat by placing it onto the ground. The other driver had then attempted to move his vehicle past Mr Washbourne's truck. He next revved his truck and drove straight into Mr Washbourne hitting him on his right shoulder, throwing him into the air, after which he fell to the ground onto his left shoulder. Mr Washbourne said that all the meat was thrown over a wall.
He remembered lying on the ground holding his right shoulder, as it was so painful. He then described the other driver miming him "tackling his truck," in other words alleging he had been at fault.
The police report from the day of the accident had noted that Mr Washbourne had been unloading meat from his truck into a nearby butchery. Another vehicle had approached and stopped behind, an argument ensued, and he had continued to unload before the driver had driven forwards and hit him, causing him to fall over.
An ambulance arrived and Mr Washbourne was assessed but advised the hospital was full and he would be better to see his own general practitioner. The ambulance report noted the other vehicle had been driving at 5km/hr, had hit Mr Washbourne's right shoulder, after which he had fallen to the ground. The hospital notes there was no loss of consciousness, no head injury and no cervical-spine pain. He was able to get himself up and had complained of pain in the right shoulder. Shoulder movements were reduced, but he denied any other pain.
Mr Washbourne eventually managed to contact his boss and he then drove the truck around the corner to put it in a dock area, until it could be retrieved.
He had then walked to a nearby train station and caught a train to Macquarie Fields where he was picked up by a friend who had taken him to MyDoctors in Macquarie Fields where he was examined by Dr Hala El-Naouchi. In an entry on 12 December 2019 the doctor had recorded complaints of pain affecting neck and both shoulders.
Mr Washbourne said he had attempted a return to work after the accident. He thinks this was about six days later. He said he had spoken to his employer after the accident about reduced hours or lighter duties and he was told it was compulsory third party and that he "wasn't going to pay him a cent." He said he was forced to get other workers to cut down the meat for him before it was loaded and his 13-year-old son was accompanying him to help with the carrying. He was sacked from his position in March 2020.
When asked about his statement where he mentioned he was receiving workers' compensation payments, he said that in late January the CTP insurer had called him and told him it was workers' compensation matter. It was after that that he was started receiving payments from the workers' compensation insurer. These payments are ongoing.
He initially had physiotherapy with Mr Wu who worked out of the same offices as his general practitioner. The treatment was ceased by the insurer after about 18 months, but Mr Washbourne said it was not helping anyway.
He was referred to neurosurgeon, Dr Lee, who arranged for him to have some cervical nerve blocks. He said these did not help. He said his pain was 5/10 prior to the procedure, 7/10 afterwards, and then 5/10 sometime later.
He was later referred to orthopaedic surgeon, Dr Chin. On 24 June 2020, Dr Chin performed right shoulder arthroscopic debridement, labral repair and subpectoral biceps tenodesis at Sydney Southwest Private Hospital. On 25 February 2021, Dr Chin performed left shoulder arthroscopic labral repair, removal of loose body and subpectoral biceps tenodesis at Sydney Southwest Private Hospital.
He was referred to a pain physician, about 18 months ago (he could not remember the name, but it appears to be Dr Wallace). He said the doctor had reassured him that he would be back working in nine months. There was a nerve block procedure scheduled. He said the doctor had told him he would not have to lie prone for the procedure. However, when he arrived on the day he was told this was not the case, so the procedure was cancelled.
Mr Washbourne said he had later been referred to another pain service because his general practitioner could not write him a script for his Panadeine Forte. He said she had told him that her prescription pad had been stolen.
Current treatment
Mr Washbourne takes two Panadeine Forte tablets each night as prescribed by his general practitioner Dr Navin. He was commenced on Duloxetine 120mg by psychiatrist, Dr Nepal in Campbelltown about two months ago. There was no other medication.
The insurer had approved a gym pool pass for two blocks of three months each.
There was no other treatment and no other treatment planned.
Current complaints
Mr Washbourne described constant neck pain, rated at 4/10 severity. This is felt over the lower cervical spine on the right and the upper cervical spine on the left. He said his symptoms are relieved to an extent if he rests, so long as he lies on his back. He said the pain is so intense at times that he feels dizzy and nauseous.
There is pain felt all over both his arms with any activity. He has difficulty putting on his socks or wiping himself when he goes to the toilet.
There is generalised pain over both shoulders. He finds his symptoms are less severe if he holds his arms to his side, with both elbows close to his body, even when walking. He cannot run.
Activities and restrictions
Mr Washbourne is living with his ex-partner and their two children, aged 19 and 11 years, in a four-bedroom house in Macquarie Fields. She does all the cleaning and the cooking. He said he would go to the shops, but he would not carry anything heavier than 2kg, he could manage a loaf of bread or some paper towels.
He says he cannot open doors without difficulty and even struggles turning a key in the lock. He cannot open jars. He uses his legs to move items along the ground or close doors.
He is unable to do any yard work.
He said he has not attempted any driving for eight months. He retains his driving license because his 19-year-old son is learning and needs a registered driver in the car.
PHYSICAL EXAMINATION
Mr Washbourne is 183cm tall and weighed 88kg. He is right hand dominant. Throughout almost the entire assessment, apart from when formally examined, he kept both upper arms and elbows against his trunk with hands linked together over the front of his chest.
On examination of the neck, very little movement was demonstrated, apart from some increase in range of motion, when dressing and undressing and being weighed. When asked about this, he admitted he had pain in his neck and that his range of movement did vary a bit from time to time.
On formal assessment, there was:
(a) flexion and extension – one tenth of normal range;
(b) lateral flexion on both sides reduced by one tenth, and
(c) rotation on both sides reduced by one tenth.
On examination of the upper limbs, circumferential measurements were:
(a) at a point 10 cms above the elbows, 31cm on the right, 30.5cm on the left, and
(b) in the forearms, 28cm on the right, and 28.5cm on the left.
On testing, there was no abnormality of power, sensation or reflexes bilaterally, but there was some pain related giving way. There were no positive nerve root tension signs. Neurologically therefore the examination was normal.
On examination of both shoulders, there was tenderness to light touch over the trapezius and intrascapular region and over the anterior and lateral aspect of both shoulders. He had healed scars which he was aware of and somewhat bothered by. Active movements were measured three times and were inconsistent. The best measurement for each movement is recorded in the following table.
Shoulder Movements
Range of motion - RIGHT
Range of motion - LEFT
Flexion
60°
60°
Extension
30°
30°
Internal Rotation
70° with arms by the side
70° with arms by the side
External Rotation
10°
10°
Abduction
20°
20°
Adduction
20°
10°
Mr Washbourne’s explanation for the variation was that his pain and range of motion varied from time to time.
When asked about the range of movements for his shoulders as recorded by Medical Assessor Nair on 29 September 2023, Mr Washbourne responded saying that the movements may have been greater then as he was "trying to get back to normal" and he was "pushing himself" and then after further discussion, when I demonstrated the range of motion the Assessor had recorded, he said that he has "never been able to put his arm up that high since the accident."
He brought various imaging studies with him today including the bone scan of 27 May 2001, MRI scan right shoulder 17 August 2020, MRI scan and x-ray right shoulder 9 April 2020, MRI scan left shoulder 5 June 2020 and 27 September 2021, ultrasound right shoulder 16 December 2019. I have reviewed the imaging and agree with the reports. I have also noted specialist radiologist, Dr John Korber’s comments in his report dated 19 December 2022.
CONSIDERATION OF THE ISSUES
Which evidence is preferred?
No challenge was made by the insurer to the reliability and credibility of the claimant’s evidence in either the original submissions or the submissions in support of the review. Medical Assessor Gibson noted that the claimant was co-operative and answered all her questions. He gave details of his previous motorbike, work and football injuries.
When it was put to him about the motor accident on 4 October 2019, six months before the accident, this appeared to have been a road rage incident and he gave a good account of that incident.
The claimant did have trouble recalling the previous shoulder problems of 2010 and the history taken by the doctor in October 2016. The Panel notes that there is no evidence in the records of any radiological imaging before the accident or any reports from orthopaedic specialists or physiotherapists in 2010 or 2016 or at any time before the accident.
The Panel therefore accepts the claimant’s evidence as provided to Medical Assessor Gibson and as contained in the medical records and reports.
The insurer has also challenged the reports of Dr Korber and Dr Chin on the basis that the claimant had a “multitude of prior shoulder complaints” which they had not been alerted to.
The claimant’s records indicate left shoulder symptoms in several attendance during 2010. This commenced with a report of a work injury. After the first attendance in January there were multiple complaints of knee pain but no further shoulder issues until August and then September 2010. An ultrasound was requested but there is no suggestion in the remainder of the records of any ultrasound having been done and on 23 September 2010 the claimant reported the left shoulder was fine. The next report of left shoulder symptoms was on 11 September 2012 and the Panel notes the claimant’s range of motion in the neck and shoulder were said to be normal. There is no further record of attendance for shoulder symptoms until the 16 August 2016 entry of “bilateral shoulder pains for years.”
The Panel notes the GP records do not include any report of right shoulder pain at all up until that point in time and four complaints of left shoulder pain. The June 2011 hospital records do record mild right shoulder pain after a motor bike accident. This does not in the view of the Panel suggest there has been a “multitude of prior shoulder complaints.” The Panel also notes that Dr Korber had the history of the shoulder injury in 2011 and may have had the records at the time he completed his report.
Both Dr Korber and Dr Chin acknowledge the presence of degenerative changes in the claimant’s shoulders and that there is a likelihood of some pathology and some additional injury having been caused by the accident.
The Panel notes the expertise of both Dr Korber and Dr Chin and is of the view their evidence should be considered and not rejected.
What injuries were caused by the accident?
The test of causation
The dispute before the Panel concerns the degree of WPI resulting from the injuries caused by the accident. In order to assess impairment, the Panel must first decide therefore what injuries were caused by the accident.
The test of causation of impairment is set out in cl 6.6 and 6.7 of the Guidelines:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Could the accident have caused an injury to both shoulders and the neck?
The medical members of the Panel have considered the mechanics of the accident and note the claimant was hit from the right on his shoulder and fell to the left on his shoulder while he was carrying a large piece of meat on his right shoulder. While the speed of the insured vehicle was not great, the claimant was hit by that solid vehicle and landed on the hard ground. It is the Medical Assessors’ clinical judgment that the accident could have caused an injury to both the right shoulder when Mr Washbourne was hit by the car and the left shoulder when he fell to the ground.
It is the Medical Assessors’ clinical judgment that the forces involved could have led to an injury to the claimant’s neck as he was hit and as he was falling.
Did the accident cause an injury to both shoulders and the neck?
The question remains whether the accident did in fact cause and injury or contribute to the worsening of any already existing condition. The insurer submitted to Medical Assessor Nair and maintained to this Panel that any injury to the right or left shoulder caused by the accident were minor soft tissue injuries that did not cause any impairment.
The claimant was seen by ambulance officers at the scene. The claimant said to them he was hit on the right shoulder and complained of pain in the right shoulder and reduced movement in the right shoulder was noted. After securing the truck and its load and returning home, the claimant attended his GP complaining of pain in the right shoulder, right side of the neck and said that he had fallen on his left shoulder. Thereafter the GP records document mainly right shoulder symptoms as well as neck and left shoulder symptoms apparently developing later.
The insurer suggests the claimant had a long pre-accident history of pain in both shoulders. As has already been pointed out by the Panel, apart from one entry in 2016 suggesting “bilateral pain”, there is no specific entry in the GP records indicating right shoulder symptoms. The right shoulder was apparently injured in the claimant’s 2011 accident as reported in the hospital notes. In respect of the left shoulder there are three references in 2010 to left shoulder pain and one entry in September 2012 as well as the reference in October 2016. However apart from the two connected attendances in late 2010, the reports made are isolated and despite referrals and radiological requests there is no suggestion of any investigations or specialist intervention.
While the Panel accepts the claimant has had previous left shoulder problems and possibly some right shoulder problems the Panel is not satisfied that these were significant or severe problems.
The insurer also points to the delay in left shoulder complaints. The Panel notes that on the day of the accident the claimant told his GP he felt to the left and landed on his left shoulder. His left shoulder was examined and there was limited flexion and abduction movement recorded. The claim form of January 2020 mentions both shoulders and the first certificate of capacity dated 15 December 2019 refers to a soft tissue injury of both shoulders.
The Panel is satisfied on the basis of the claimant’s history and the contemporaneous documentation that the claimant did sustain an injury to his left and right shoulder and neck in the accident.
What is the nature of the injuries caused by the accident?
The medical members of the Panel have considered the records of the claimant’s GP, the specialist and other reports, the claimant’s evidence and the findings of Medical Assessor Gibson. The clinical judgment of the medical members of the Panel is that the claimant sustained:
(a) a soft tissue injury to the cervical spine causing an aggravation of pre-existing degenerative changes in the spine. The Panel notes the reference to neck injury in 2008 and neck pain on 11 September 2012 which was accompanied by a full range of neck movement on examination. These incidents appear minor and not the source of ongoing symptoms. The Panel is satisfied that the aggravation of the claimant’s neck condition caused by the accident is continuing to cause pain and restriction of movement in the neck;
(b) soft tissue injuries to the right shoulder which has aggravated pre-existing degenerative changes. The Panel notes the previous injury to the claimant’s right shoulder in June 2011 but notes there do not appear to be any ongoing complaints recorded or referred to by the claimant. The medical members of the Panel accept the aggravation caused by the accident is continuing, and
(c) soft tissue injuries to the left shoulder which has aggravated pre-existing degenerative changes. The Panel notes the previous complaints of left shoulder pain in 2010, 2012 and 2016 but notes there is no satisfactory evidence of ongoing complaints up until the time of the accident. The medical members of the Panel accept the aggravation caused by the accident is continuing.
IMPAIRMENT ASSESSMENT
Cervical spine - neck
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111 of the Guidelines).
The spine is divided (cl 6.131) into three regions the cervicothoracic, thoracolumbar, and lumbosacral spine. In Mr Washbourne’s case only the cervicothoracic or cervical spine is relevant.
There are five diagnostic related categories and a number of indicia provided (see Table 6.7) to assist medical examiners and assessors to determine which is the most appropriate category. The first is DRE category I which is selected if there are symptoms which may include pain.
A finding of DRE II requires there to be:
(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), which
(ii)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.
DRE III requires radiculopathy which is defined in cl 6.138 as “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 …”. The signs of radiculopathy are:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant complains of pain in his neck which suggests he satisfied the criteria for at least a DRE I classification.
Mr Washbourne did not have any of the signs of radiculopathy at the time of his examination by Medical Assessor Gibson, therefore he does not satisfy a DRE III classification.
While the measurements obtained by Medical Assessor Gibson suggests there was dysmetria, and therefore Mr Washbourne could be assessed as having a DRE II classification, the Panel is not satisfied there was true dysmetria as the claimant’s range of motion was greater when informally observed compared to the formal examination.
The Panel is therefore satisfied that the claimant has a neck impairment, which in the clinical judgment of the Medical Assessors should be classified as DRE I which translates to a WPI of 0%.
Right and left shoulders
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others. Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
There are several methods of upper limb assessment:
(a) amputation (part 3.1b) not relevant here;
(b) sensory loss of the digits (part 3.1c) not relevant in this case;
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k) not relevant;
(e) vascular disorders (part 3.1l) not relevant, and
(f) other disorders (part 3.1m).
The abnormal range of motion method is regularly used to assess shoulder impairment. It is explained in cl 6.50 of the Guidelines and should be done using a goniometer (cl 6.50(a)) and only active motion (not passive) is measured (6.50(b)). There are six movements to be measured (flexion, extension, abduction, adduction, internal rotation and external rotation) and UEI obtained for each (pages 41 – 45 of AMA4). The six UEI figures are added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
Clause 6.50 of the Guidelines also provides as follows:
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation …
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
The measurements obtained by Medical Assessor Gibson suggest a there is a WPI of 12% for each of the left and the right shoulders which would suggest a total WPI of 23% according to the combined values chart on page 322 of AMA 4 Guides.
The Panel is not however satisfied that the measurements recorded are a true reflection of the claimant’s accident caused impairment due to the presence of inconsistency at the examination and variation from other measurements obtained by other examiners.
Clause 6.41 of the Guidelines says that:
“a medical assessor who detects inconsistency between clinical findings and information obtained through medical records and/or observations of non-clinical activities to draw these inconsistencies to the claimant’s attention in order to provide an opportunity for explanation.”
Medical Assessor Gibson did put the inconsistencies and variations to the claimant, and he said that his pain levels and therefore range of motion varies from time to time. That evidence, directly from the claimant suggests to the Panel that the range of motion is not a valid method of impairment assessment in Mr Washbourne’s case.
Mr Washbourne also denied ever being able to move his shoulders to obtain the measurements obtained by Medical Assessor Nair. This appears to be incorrect as the Panel notes that Medical Assessor Nair found exactly the same range of motion as Dr Bodel who examined the claimant at the request of his solicitors almost a year before (see the comparative tables annexed to these reasons). Again, the evidence from the claimant suggests to the Panel that the range of motion method is not a valid method of impairment assessment for Mr Washbourne’s injuries[14].
[14] The Panel notes that if Mr Washbourne had been able to move his shoulders to the same extent when examined by Medical Assessor Gibson the Panel would have been satisfied that the claimant had a WPI of 8% for each of his shoulders.
It is the clinical judgment of the Medical Assessors that the aggravation of the pre-existing degenerative shoulder condition is continuing. It is therefore the Panel’s view that the claimant’s shoulder injuries are continuing to cause an impairment.
The Panel has therefore considered that, in the light of the difficulties using the range of motion method, the most appropriate method of assessment is section 3.1m at page 58 of AMA4, “Impairment due to other disorders of the Upper Extremity”.
The Panel is of the view that the most appropriate other disorder is “joint crepitation with motion” as joint crepitation with motion reflects the condition of cartilage degeneration and osteoarthritis. Mr Washbourne’s degenerative glenohumeral shoulder joints, having been aggravated, have resulted in symptoms of pain and restriction in motion similar to what would be expected from a condition of joint crepitation with motion. The Medical Assessors have considered the medical records and claimant’s history and in their clinical judgment are of the view that the claimant has mild symptoms in his left shoulder and moderate symptoms in his right shoulder.
The impairments resulting from the shoulder injuries are calculated as follows:
(a) the Glenohumeral joint is, according to table 18 of AMA4, valued at 36% WPI;
(b) mild impairment in the left shoulder from joint crepitation attracts a WPI of 10% of the joint impairment that is 10% of 36% which equals 3.6%;
(c) moderate impairment in the right shoulder from joint crepitation attracts a WPI of 20% of the joint impairment that is 20% of 36% which equals 7.2%, and
(d) in accordance with cl 6.39 of the Guidelines, fractional values should be rounded and therefore the left shoulder impairment is 4% and the right shoulder impairment is 7%.
Pre-existing impairment
The Guidelines provide for the evaluation of pre-existing impairment. Clause 6.31 provides as follows:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
If there is objective evidence of a pre-existing symptomatic impairment, then clause 6.32 provides further guidance as follows:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10):
'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' “
There is no dispute that Mr Washbourne had degenerative changes in both shoulders indicating a pre-accident condition, and it has been the Panel’s decision that this condition has been aggravated by the accident and that the aggravation is continuing. There is however no evidence of a pre-existing impairment resulting from that condition. There is no evidence, for example, from the claimant’s GP’s records of any restriction of movement in either the neck or the shoulders in the years before the accident. There is no evidence from the claimant’s employer that the claimant was experiencing difficulties with his duties. The evidence before the Panel is that the claimant was playing Rugby League in the years before the accident and working in a heavy job in the two months before the accident. He would be unable to do either of those things in the Medical Assessors’ view if he had a symptomatic left or right shoulder condition.
While the claimant’s GP’s records indicate complaints of left shoulder pain in 2010 and 2012 with some restriction of movement in August 2010 and some tingling in the left arm in 2012, there is no objective evidence that at any time thereafter the claimant had a symptomatic impairment. The August 2016 entry in the GP’s records which notes “bilateral shoulder pains for years” does not include any objective evidence of an impairment such as crepitation or restriction of motion. Even if the Panel was satisfied that as at the time of the accident the claimant was continuing to experience “bilateral shoulder pains”, cl 6.38 of the Guidelines appears to prevent an assessment of a current or pre-existing impairment based on pain alone.
In summary, while there is evidence of a pre-existing degenerative condition in both shoulders, there is no objective evidence of a pre-existing impairment as a result of that condition which can be assessed in accordance with the Guidelines and which could form the basis of a reduction of the claimant’s current impairment.
CONCLUSION
The Panel is satisfied that Mr Washbourne’s whole person impairment is greater than 10% on the basis of the following assessments:
(a) Cervical spine /neck DRE I = 0%
(b) Right shoulder 7% WPI
(c) Left shoulder 4% WPI
While the claimant has surgical scarring which bothers him and the insurer is on notice of the surgery, scarring was not assessed by Medical Assessor Nair. Dr Bodel did assess the claimant’s skin impairment resulting from the surgical scarring at 2%. The Panel is of the view that is a realistic assessment based on Medical Assessor Gibson’s examination and the photographs provided by the claimant, but it has not been included in the Panel’s assessment.
While the Panel has come to the same conclusion as Medical Assessor Nair, the Panel has arrived at a different percentage (11%). As Medical Assessor Nair included the percentage he found (21%) in his certificate, if follows that his certificate must be revoked.
ATTACHMENT A – COMPARATIVE SHOULDER MOTION MEASUREMENTS
| Left Shoulder | Normal | Dr Shatwell 4 Mar 22 | Dr Bodel 1 Sep 22 | Assessor 29 Sep 23 | Panel 21 Jun 24 |
| Flexion | 180 | 40 | 120 | 120 | 60 |
| Extension | 50 | 20 | 30 | 30 | 30 |
| Abduction | 180 | 30 | 90 | 90 | 20 |
| Adduction | 50 | 20 | 10 | 10 | 10 |
| Internal rotation | 90 | 30 | 50 | 50 | 70 |
| External rotation | 90 | 10 | 50 | 50 | 10 |
| Suggestive UEI / WPI | 27 / 16 | 13 / 8 | 13 / 8 | 20 / 12 | |
| Right Shoulder | Normal | Dr Shatwell 4 Mar 22 | Dr Bodel 1 Sep 22 | Assessor 29 Sep 23 | Panel 21 Jun 24 |
| Flexion | 180 | 70 | 120 | 120 | 60 |
| Extension | 50 | 20 | 30 | 30 | 30 |
| Abduction | 180 | 30 | 90 | 90 | 20 |
| Adduction | 50 | 20 | 10 | 10 | 20 |
| Internal rotation | 90 | 30 | 50 | 50 | 70 |
| External rotation | 90 | 20 | 50 | 50 | 10 |
| Suggestive UEI / WPI | 22 / 13 | 13 / 8 | 13 / 8 | 20 / 12 | |
0
0
0