Rafoka v Allianz Australia Insurance Limited
[2025] NSWPICMP 190
•21 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Rafoka v Allianz Australia Insurance Limited [2025] NSWPICMP 190 |
CLAIMANT: | Najeeba Rafoka |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Sophia Lahz |
DATE OF DECISION: | 21 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents Compensation Act 1999 (MAC Act); review of Medical Assessment Certificate (MAC); section 58 and section 60 of the MAC Act; claimant presented in an extremely disabled state; post-accident fall and coccygeal fracture; claimant suffered substantial psychological symptoms; right wrist fracture from fall before accident; rib bruising and sternal fracture; generalised non-anatomical giving way weakness; pain focused whilst perceiving herself as very disabled; chronic pain syndrome; right shoulder restriction variable and voluntary; Held – MAC revoked and new certificate issued; 7% whole person impairment (WPI) assessed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel revokes the Certificate of Medical Assessor Philip Truskett dated 5 June 2024 and issues a new certificate. 2. The following injuries were caused by the motor vehicle accident and give rise to a whole person impairment of 7% which is not greater than 10%: · cervical spine – soft tissue injury 5%, and · left shoulder – soft tissue injury 2%. |
STATEMENT OF REASONS
INTRODUCTION
Najeeba Rafoka (the claimant) is a 66 year old woman who was involved in a motor vehicle accident on 17 January 2022. Following the accident an application for personal injury benefits was lodged by the claimant and the claimant’s injuries were determined to be
non-threshold injuries. The claimant sought a concession from the insurer that her injuries exceeded 10% whole person impairment (WPI). Following a review the insurer declined to make this concession. Thereafter the claimant has lodged an application for assessment of degree of WPI. In respect to the claimant’s psychological injuries, she was examined by Medical Assessor Samson Roberts on 27 November 2024 and 15 January 2025 who issued a certificate on 26 January 2025 stating that the claimant suffered an exacerbation of persistent depressive disorder which gave rise to a WPI of 4%.
Noting then, that the claimant had a finding that, she had suffered a non-threshold injury. The claimant sought a concession from the insurer that she had sustained a WPI in excess of 10%. The insurer declined this concession and consequently the claimant sought an assessment of WPI in respect to the physical injuries she sustained. She was examined by Medical Assessor Philip Truskett on 24 May 2024 who, in a certificate dated 5 June 2024, determined that the claimant sustained injuries which gave rise to a WPI of 6% which is not greater than 10%. The claimant sought a review of this determination and, in a certificate dated 3 October 2024, the President’s delegate Kenneth Ho certified that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. Consequently, the matter was referred to this Medical Appeal Panel.
The Panel noted that there was insufficient material to consider the matter and accordingly on 10 October 2024 issued directions that the parties upload to the portal the original application and replies with all annexures thereto. This material is now before the Panel.
The Panel met on 3 December 2024 and confirmed that they had all the required material before them. The Panel notes that included in the material are, medical records relating to Wardia Korkis who has the same date of birth, address and Centrelink number as the claimant Najeeba Rafoka. The Panel obtained confirmation that all records and references to Wardia Korkis relate to Najeeba Rafoka. That is, that Wardia Korkis and Najeeba Rafoka are the same person.
After considering the medical material the Panel is of the view that there is a requirement to re-examine the claimant.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with cl 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was examined on 26 February 2025 at the Commission’s Medical Suites by Medical Assessor Sophia Lahz. She attended punctually with her daughter Ms Sonia Sakaa. An Arabic interpreter Ms Claudia El Brihi, NAATI 59150 attended for the duration of the appointment.
Pre-accident medical history
The interview was difficult and prolonged due to the claimant’s physical disability, verbosity through the interpreter and requirement for much encouragement to undertake active movements during the physical examination.
Ms Rafoka presented in an extremely disabled state, walking very slowly whilst leaning heavily on a walking stick in the right hand. She stated on enquiry that she is right-handed, and a non-smoker and non-drinker. She had difficulty sitting due to lower back and coccygeal pain tending to lean whilst sitting. She was offered alternative seating although she said it would make no difference. It was agreed that she would let me know if she needed to lie down during the interview. All of this took 5-10 minutes before we could actually start the clinical assessment.
It later came to light that there had been a fall in September-October 2024 in which she had sustained a coccygeal fracture, radiologically confirmed. There had been significant low back pain predating the latter fall although symptoms had since worsened.
At the commencement of the interview, Medical Assessor Lahz explained the purpose of the assessment (regarding injuries from a motor accident on 17 December 2021) and that she is an independent medical assessor. It was also explained that Medical Assessor Lahz had reviewed substantial medical/hospital/genera; practitioner (GP) records regarding her medical history and subject motor accident on 17 December 2021.
Ms Rafoka told me that she is aged either 65 or 66 and came to Australia in 2009, after spending three years in Lebanon. She briefly explained that she left her home country Iraq after her husband was murdered. She has four children all of whom now live in Australia.
She has suffered with substantial psychological symptoms particularly on first arriving in Australia although she said with the passage of time, she adjusted to living in Australia and her mood greatly improved. She has never done any paid work since her arrival although she said that she was slowly able to become involved with her local community and church inclusive of regular social and voluntary activities. She mentioned too regular attendance at a club the “Star” in her local area. She currently lives in Fairfield with her son who is divorced.
When asked about her previous health, she said that for the two years preceding the 2021 accident, she hardly went to a doctor. She said that she had been very well, engaged in an active social life in her community and that she had been able to complete all chores, shopping and cooking and personal care tasks prior to the December 2021 motor accident. She explained as well that she was able to walk without walking aids before the subject motor accident.
She was reticent to discuss any painful conditions preceding the motor accident although when I reminded her that I had seen the GP records, citing multiple aches and pain in various body parts since 2010 inclusive of neck, back, left shoulder, right ankle, and right knee, she conceded in particular that there had been some lower back and left shoulder pain before the accident, which however was not causing any interference with daily activity levels, whereas since the 2021 motor accident, symptoms in the abovementioned areas are so much worse. She repeated several times that she believes that she will surely be in a wheelchair very soon and that currently she is unable to perform many activities and for the last three years, she has been largely housebound aside from a few outings with her daughter to the shops or else appointments.
She did receive an injection to the left shoulder, she thought about 6-7 years pre motor accident. She said too that she has received “free” physiotherapy from time to time over the years pre-2021 for various painful body parts. With prompting, she agreed there had been bouts of neck pain before the 2021 motor although “not like now” i.e. extremely severe.
She said there had been low back pain associated with “whole” right leg pain although she associated the right lower limb symptoms more with the knee and ankle, rather than the lower back. She explained that her aches and pains were generally worse in cold, rainy weather.
She confirmed history of right wrist fracture from a fall in the garden some years before the 2021 motor accident. She said that this transiently caused pain to extend proximally from the wrist to the shoulder, involving the entire right upper limb. She also confirmed right knee pain and ankle pain some years before the 2021 motor accident although she said pain medication resolved those symptoms. She denied any falls pre motor accident aside from that causing a right wrist fracture a few years beforehand.
I discussed with her that the GP’s records indicate that she had been seeing the doctor regularly often for low back pain during 2020-21 up to the time of the motor accident. She doubted this and said that would not have been the case due to the COVID-19 pandemic keeping her away from the doctor. However, I told her that I was only relaying contents of her doctor’s records. In November 2020, she had been receiving physiotherapy for the lower back and on 17 December 2020 there is reference in GP records to low back pain with right sciatica (claimant unable to recall). She noted that if there had been any low back pain immediately preceding the motor accident, it was “nothing” like it is now. She said that before the motor accident, she only took Panadol Osteo from time to time. She said too that she had earlier (post arrival in Australia) been on antidepressants though with time, these became unnecessary.
History of the motor vehicle accident
Before the accident, she had been taking prescribed medication inclusive of Thyroxine for underactive thyroid, and other medication for high blood pressure and elevated lipids.
Ms Rafoka confirmed her involvement in the 2021 motor accident. At the time, she had been with a friend and en route to church. She was the restrained driver of a Toyota Corolla proceeding at the speed limit when a vehicle (likely Ute or else small truck) suddenly reversed from a driveway causing a T-bone collision. A neighbour had been travelling as a passenger in the front seat. Ms Rafoka said that she was screaming after the incident, the car hitting them being much larger than hers. Ms Rafoka’s Corolla was written off in the accident.
She said that her chest (sternum) struck the steering wheel, “something” happened to her neck and lower back, the left knee struck the dashboard and the left shoulder the adjacent passenger seat. Ambulance officers extracted her from the vehicle in a neck brace.
The ambulance took her to Fairfield Hospital where she remained overnight. She elected to leave hospital early because (she said) she was stripped of clothing, felt vulnerable and frightened, could not receive assistance to the bathroom and moreover the staff had sent her daughter home so she felt “unsafe”.
She explained that she was very shocked and does not have clear recollections of hospital events. However, she remembers that there was bruising at the sternum, breast, left knee and left hand (actually, she said bruising affecting the entire left upper limb). She said there were symptoms too in both the neck and lower back as well as the left shoulder. She is aware that rib bruising and sternal fracture were diagnosed on scans post motor accident.
I put to her that the left shoulder is not mentioned in the ambulance or else the early GP records although she could not account for this except to state that the medical focus was very much upon the cervical spine (with neck brace etc). The contemporaneous hospital records do refer to symptoms at the neck, back, left hand and left knee. She received painkillers (Targin) and discharged home the next day.
GP records indicate she consulted a GP on 22 December 2021 in the usual practice although her usual doctor (Sadak) was away. The records indicate symptoms in the left knee, chest and left breast again without mention of the shoulder to which she reiterated that the focus was very much on her neck (despite the lack of mention of the neck in the GP records).
The treating GP referred her for physiotherapy, and she said that Mr Berbari treated the neck, left shoulder, left knee and lower back. She initially attended weekly and then fortnightly. The insurer funded treatment until mid-2024 when following Medical Assessor Truskett’s assessment all funded treatment for injuries from the motor accident stopped. She has since been funding her own physiotherapy.
She was also referred to orthopaedic surgeon Dr Maniam whose treatment has comprised physiotherapy recommendations and pain medication such as Panadeine Forte. She is still seeing Dr Maniam, self-funding.
She has also consulted a psychiatrist and psychologist since the subject 2021 motor accident. However, she has been lost to follow up from the psychiatrist due to a miscommunication.
There have been multiple scans of the areas claimed injured inclusive of the neck, lower back, left shoulder, chest, thoracic spine and left knee although she is uncertain of the clinical findings.
Medical documentation
I summarise the dates/body regions of the scans brought to the appointment below:
(a) on 20 December 2021 there was MRI left knee showing pre patellar contusion, minimal lateral meniscal tear, focal medial femoral condylar fissure and intrasubstance tear of ACL;
(b) an MRI of the left shoulder 1 February 2022 showed no tear of the cuff although there was osteoarthritis of the AC joint and evidence of old Hill Sachs and Bankart lesions;
(c) a left breast ultrasound dated 1 February 2022 showed no traumatic findings;
(d) a plain X-ray of the lumbar spine on 10 March 2022 showed mild scoliosis towards the left, normal SI joints and significant narrowing of L5S1;
(e) a CT of the cervical spine on 10/3/22 showed left C56 mild foraminal stenosis with possible mild C6 nerve root irritation. At C67 there was right lateral paramedian disc versus right thecal space with mild right foraminal stenosis. At C45 level there was osteophytic compromise of the thecal sac without neural compression. At C34 there was osteophytic compression of the thecal sac without neural compression. C23 level was normal.;
(f) a plain X-ray of the left knee 15 June 2022 (not specified as weight bearing) was unremarkable. Joint space was preserved (my observations). There was some HO of the inferior patellar tendon;
(g) on 1 August 2022, an ultrasound of the right leg showed no thrombophlebitis;
(h) MRI of the cervical spine 9 December 2022 showed moderate left foraminal stenosis at C56 with possible compromise of the left C6 nerve root. At C23 there was thecal sac compression without neural compromise. At C34, there was slight compromise of the spinal cord without neural compression. At C45 there was thecal compression without neural compromise;
(i) on 14 June 2023, a CXR/sternal X-ray showed no residual fracture and no pectus excavatum although there was a right apical nodule for which CT was recommended as follow up;
(j) on 30 June 2023, CT chest showed evidence of past granulomatous disease;
(k) on 16 September 2024, an X-ray of the sacro coccygeal junction showed a non-displaced fracture for which CT was recommended, and
(l) on 21 November 2024, there was a plain X-ray of the thoracic spine showing minimal spondylosis.
Since the accident, she has complained of chest pain/shortness of breath, culminating in a cardiology referral. She underwent various heart investigations and her heart is reportedly “fine” although when she complained of breathing difficulties at night, she was referred to a sleep clinic and then diagnosed with obstructive sleep apnoea. A CPAP machine was recommended although she is not receiving this treatment because she cannot afford it. She blames the OSA condition on the accident, noting that she did not previously suffer from this condition.
Ms Rafoka is presently taking multiple medications inclusive of Fish Oil, Vitamin D, Panadeine Forte, Actonel, Rosuvastatin, Amitriptyline, Genteal eye drops, Pantoprazole, Panadol Osteo, Duloxetine 60 mg, Olmetec for hypertension and Thyroxine.
Current symptoms
Since the 2021, she complains of ongoing symptoms in the neck, chest, left shoulder, entire left arm inclusive of all fingers, lower back, whole left leg and knee.
She said she had originally been using a right-sided forearm crutch after the motor accident although this caused excessive elbow pain, so the doctor advised her to switch to a walking stick which she is using now (in the right hand).
She explained at length that she is having a lot of symptoms in the right leg (as well as the left) since the accident. The right leg has become more problematic recently, she believes due to excessive weight bearing through that side given the primary injuries of the left knee from the 2021 motor accident. She reported that the left leg is generally more painful during the day whereas at night, she is more troubled by the right leg due to cramping sensations. Her son yesterday rubbed a salve into the right calf and wrapped the right lower leg in a crepe bandage for symptomatic relief.
She complains of poor sleep and must sleep with her head elevated on pillows due to breathing difficulties/chest wall discomfort. She must lie on her back being unable to lie on the left shoulder due to pain.
There is burning/sharp pain at the neck base L>R 7-8/10 which tends to coalesce with the left shoulder pain mentioned below. There is persistent pain at the sternum on palpation, deep breathing and coughing. She reports too bilateral “tension” in both clavicles (collar bones).
There is pain across the mid back at the level of the inferior scapular angle worse with movement and on pressure. If she simply washes her face, there is very sharp pain in this region. It can sometimes spread to the lateral chest wall bilaterally.
She reported pain spreading from the neck base to the left trapezius, shoulder joint and the entire left upper limb (generalised). All left-sided fingers inclusive of the thumb episodically become numb and the same fingers can cramp.
She has “lots of pain” about the left shoulder convexity/joint with proximal extension to the trapezius and distal extension with shooting down the entire left arm. Pain sits around 7-8/10 rarely decreasing to 6/10.
There is “lesser” pain at the right shoulder with spread to the trapezius which she attributes to “overuse” reliance on walking stick and weight bearing more through the right upper limb to spare the left arm. The right elbow is especially sore and as noted she has ceased use of forearm crutch in favour of a stick.
There is much pain 7-8/10 intensity in the mid back region and she reported inability to straighten the body when standing. As noted much of the pain is at the level of the inferior scapular angles.
There is constant low back pain (something throbbing inside, per her description) with spread to bilateral lower limbs L>R. On the left, symptoms involve the posterior thigh and posterior calf and spread as far as the toes/whole foot. She reported intermittent numbness in the left shin and all toes.
There is some pain in the upper left lateral thigh though essentially whatever body site I enquired about regarding pain, the latter was present.
On the right, she perceives pain in the anterior right thigh reaching the ankle, with intermittent giving way of the right lower limb and grabbing sensation in the right calf. She obtains some relief from massage and Deep Heat application. I have noted above regular nocturnal cramps in the right lower limb.
There are no specific right knee symptoms, only those in the context of “whole leg” symptoms. There is “lots of” pain in the anterior left knee, throbbing character.
Current functioning
She feels very sorry for herself, very depressed with the chronic pain affecting multiple body locations. She often finds herself crying about the situation. Her son does the chores, yard work and shopping whereas her daughter helps her with personal care inclusive of two showers per week.
She sometimes has a daytime nap due to nocturnal sleep disturbance. She can drive rarely very short distances over 10-15 minutes. She has no particular hobbies or recreations. She can no longer pursue her previous community, church and voluntary activities.
Examination
She sat during the interview looking very uncomfortable and leaning towards the right in a chair. She sometimes stood for symptomatic relief during an interview taking 90 minutes. She was able to look regularly/smooth range of motion at the neck, without apparent difficulty when conversing with the interpreter. I later drew this to her attention to which she responded that even when she had been looking at the interpreter there had been significant pain all over the body.
At the outset of the physical examination, I explained that I would be asking her perform various active movements and that she would need to do her best in order for easy interpretation of the clinical findings. She indicated that she understood.
I permitted her a 15 minute break after the history/interview before the physical examination in order to recover due to high pain levels. I also gave her the option of returning on another day for the physical examination, although she elected to “finish” everything today.
There was central adiposity. She was of relatively short stature. I did not weight her, nor ask her to walk on heels or toes due to safety concerns. There was significant pain behaviour throughout the interview and examination with much encouragement of the claimant required for her to display best efforts. She walked slowly around the room leaning heavily on the right-sided walking stick. As noted heel walking and tip toeing were not assessed on safety grounds.
Neck movements were slowly performed with jerking quality. I put it to her that she had been moving the neck more smoothly and with apparent ease whilst speaking through the interpreter although she claimed to have been turning her entire body (though that was not my observation).
There was ½ normal range of flexion and 1/3 normal range of extension with 1/3 normal lateral flexion to either side and rotation to either side. There was dysmetria present in the flexion/extension plane. There was generalised tenderness along the length of the neck without muscle guarding or else spasm.
There were no upper limb non-verifiable radicular complaints given that numbness involving all fingers and generalised upper limb pain are not within the distribution of a single dermatome. Upper limb deep tendon jerks were present and symmetrical and upper limb neural tension tests negative bilaterally.
There was global reduction of sensation in the upper limbs L>R and affecting the left-sided fingers most of all although there was no sensory loss in an anatomical distribution. On the right side, the sensory loss was worse in the middle finger, consistent with non verifiable C7 pattern. Hoffman’s tests were bilaterally negative. There was no measurable wasting of the arms (33 cm) 10 cm above the elbow crease, nor the forearms 26 cm, 5 cm below the elbow crease. Strength testing at the upper limbs especially the left side was invalidated by pain. There was generalised non-anatomical giving way weakness worse on the left side. There were not the two signs present to confirm the presence of cervical radiculopathy.
There was tenderness over both shoulder joints L>R and trapezial regions L>R. There was no wasting about the shoulder girdles. Impingement tests were negative and essentially all movements of the shoulders L>R were restricted due to symptoms at the neck, trapezial regions and shoulder joints/upper limbs.
Active shoulder motion was checked with a goniometer twice bilaterally in cases where range of motion was restricted. Due to high pain levels, a third repetition would not have been contributary. Range of motion mostly declined from initial to second repetition amid complaints of worsening pain with movement. Active shoulder range of motion is shown in the following table:
Right Left
Abduction
100, 70
80, 70
Adduction
50
30,10
Flexion
100, 70
90,70
Extension
40, 50
40,50
Internal rotation
70, 70
70,70
External rotation
60,60
50,50
The decreasing range of elevation in particular with repetition was discussed with the claimant who reported increasing pain with movement provocation.
There was full range of active motion at the elbows, wrist and hands, not attracting WPI per the specific figures in AMA4.
There was tenderness over the anterior chest worse over the sternum. There were no deformities visible.
Aside from restricted motion: flexion ½, extension1/3 and rotation1/3 normal to either side, the thoracic spine examined normally. There was no muscle spasm or guarding, no dysmetria and no non-verifiable radicular symptoms at the thoracic spine. There were no signs of thoracic radiculopathy. There was generalised tenderness of the thoracic spine.
At the lumbar spine, there was reluctance to move in case of pain. There was tenderness at all lumbar spine levels without guarding or spasm. Flexion and extension were1/3 normal range and lateral flexion ½ normal range to either side. There was no dysmetria. There were no lower limb non-verifiable radicular complaints, given that numbness in the left-sided toes does not fit the pattern of a single dermatome. There was subjective reduction of sensation in both legs compared with the forehead L>R although there was no anatomical/dermatomal sensory loss. There was no measurable wasting of the thigh 48 cm 10 cm above the superior patella nor calves 36 cm at maximal mid girth.
There was generalised tenderness at the left lower limb without focal tenderness of the left trochanteric bursa. The knees moved actively with much encouragement through 0-110 degrees. There was no crepitus on either side and there was neither AP nor ML instability. There was poorly localised tenderness over the anterior knee. Hip and ankle movements with considerable encouragement were within normal limits not attracting WPI according to the figures/tables of AMA4.
Conclusions
I note there was an extensive history of pain complaints in multiple body parts before the 2021 subject motor accident, especially (2020-2021 pre-injury) affecting the lower back. In addition, there was a fall in late 2024 with worsening of lower back symptoms and onset of tailbone symptoms especially affecting sitting tolerance.
Further Ms Rafoka has been subject to substantial psychosocial adversity, rendering her less able to cope and more vulnerable to decompensation in the face of (further) trauma and stressful life events such as the motor accident with physical injuries.
Unfortunately, Ms Rafoka is very pain focused whilst perceiving herself as very disabled, helpless and unable to remain active. She conceded feelings of depression and is catastrophic in her thinking, believing that she will inevitably be confined to a wheelchair.
Ms Rafoka suffers from a chronic pain syndrome affecting multiple body parts, comprising persistent symptoms well beyond the usual time for healing, typically 12 weeks. Chronic pain symptoms have been perpetuated by neural sensitisation, a phenomenon whereby symptoms are enhanced due to neural sensitisation, (aberrant neural activity whereby neurones react in a heightened fashion to stimuli not usually causing pain, so that normal daily activities are perceived as painful and also that typically painful stimuli are perceived as worse than would otherwise be the case). Pain perception is also worsened by physical deconditioning, anxiety, depression, sleep disturbance, and fear avoidance of normal movement. Chronic pain is a complex biopsychosocial phenomenon.
Sunburn is a good example of altered neural sensitivity post injury. There is excruciating pain with non-painful stimuli such as light touch in the burnt area due to nerve injury with aberrant neural sensitization so that nerves respond abnormally to non-painful stimuli such as e.g, light touch. Stimuli which are not normally painful such as gentle stroking, are perceived as being very painful whereas stimuli which can be painful such as hot water are perceived as being unduly painful due to hyperalgesia caused by sensitised, damaged nerves subjected to thermal injury. Typically, this neural sensitisation resolves as the damaged/burnt tissues heal although the difference in chronic pain states is that symptoms persist due to chronic neural sensitisation which does not resolve.
The sternal fracture and rib contusions have long since resolved with residual chest wall symptoms due to the neural sensitisation referred to above.
Based on the contemporaneous clinical records, (ambulance, Certificate of Capacity, GP records and acute hospital records), the claimant has sustained soft tissue injuries of the neck, lower back, left hand/wrist, left shoulder, left trochanteric bursa and left knee. Symptoms and/or bruising were reported at some of the latter sites in the hospital records.
A bone scan post injury also confirmed a sternal fracture with multiple rib contusions.
An MRI of the left knee performed the following day post motor vehicle accident showed pre-patellar contusion i.e. soft tissue injury. The Personal Injury Claim Form December 2021 refers to injuries of the chest bone, left knee, left little finger, neck and right [sic] shoulder. The ambulance report of the subject accident referred to neck tenderness. The GP records on 22 December 2021 refer to left knee and chest bruising as well as left breast bruising. The Certificate of Capacity (COC) dated 20 December 2021 refers to sternal fracture, left knee soft tissue injury and exacerbation of degenerative changes in all three cervical, thoracic and lumbar spinal regions. There is also reference to left trochanteric bursitis, left shoulder, wrist and hand on the latter COC. The left knee is mentioned in GP records on 24 February 2022, the back on
9 March 2022, the left knee 10 March 2022, the neck on 18 March 2022 and the left shoulder on 2 May 2022.
Taking a benevolent approach, and considering the clinical findings the Panel notes that the clinical examination indicates cervical dysmetria in the flexion/extension plane and non-verifiable radicular complaints in right-sided C7 i.e. cervicothoracic DRE category II or else 5% WPI of the cervicothoracic spine, (Table 6.7, page 103 MAG). There is no impairment for healed sternal fracture despite ongoing symptoms/tenderness. There was no deformity or other abnormality at either clavicle, just poorly localised tenderness.
The Panel accepts the claimant sustained a soft tissue injury of the left shoulder and notes the MRI findings (2022) with osteoarthritis (AC OA) and bursitis. There was variable restriction of active shoulder motion in part due to symptoms referred from the neck as well as symptoms enveloping the shoulder girdle more generally, disproportionate to the (mild) injury sustained in the motor accident. Given the pain-related variability of shoulder movement, WPI cannot be determined using ROM. Therefore, the Panel will use of an analogy enabling small WPI rating comparable to the mild nature of the injury (per paragraph 6.24 page 88 MAG) such as 10% joint impairment for AC crepitus (Table 19, page 59, Table 18, page 58 AMA4) i.e. 10% (joint impairment) of 25% UEI (maximal UEI attributable to the AC joint) giving 3% UEI or else 2% WPI (Table 3, page 20 AMA4) for the left shoulder.
At the right shoulder, there was better range of motion than on the left although again the movement was variable due to prevailing pain intensity. The mild nature of the neck injury does not form a credible explanation for the observed restriction of right shoulder movement. There was no muscle guarding, no spasm and no neurological injury of plexus, nerve roots or peripheral nerve capable of restricting right shoulder movement. The observed right shoulder restriction was variable and voluntary due to fear of pain provocation and thus not associated with permanent impairment. The mechanism of the subject accident without impact to the right shoulder also does not provide a credible mechanism of injury nor plausible medical explanation for the observed restriction. There was no direct right shoulder injury and the observed restriction was too great to be accounted for by Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351
(Nguyen), given the relatively mild neck soft tissue injury. There is also no mention of right shoulder injury in the contemporaneous documentation aside from the COC which I think was erroneous/typographical with left intended rather than right. No WPI shall be accorded the right shoulder for either direct injury.There was a full range of motion at the elbows, wrists and hands not attracting WPI according to the specific figures/tables in AMA4.
There is no impairment for left “trochanteric bursitis”. The claimant was tender at multiple body sites, essentially wherever she was touched. There was no evidence of focal trochanteric bursitis. She also did not report any localised below to the left lateral hip that could have induced the bursitis condition.
Clinical findings at the thoracic and lumbar spine were compatible with DRE category I or else 0% WPI. There were no positive clinical findings at these spinal regions to indicate DRE exceeding DRE category I or else 0% WPI.
In summary, the claimant has 5% WPI consequent on the cervical spine injury and 2% WPI consequent on the left shoulder injury giving rise to a 7% WPI caused by the motor vehicle accident.
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