Rahman v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 277
•3 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rahman v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 277 |
| CLAIMANT: | Fahim Rahman |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 3 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury in motor accident on 8 October 2018; claimant on motor bike and struck by insured vehicle; thrown onto ground; assessment of permanent impairment; transverse fractures at three levels of lumbar spine assessed at 5%; ongoing cervical spine symptoms but not sufficient to establish DRE category II; left shoulder injury and ongoing minor restriction of movement assessed at 2%; injury to thoracic spine resolved; Held – claimant assessed at 7% permanent impairment due to physical injuries. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 5 October 2023 and certifies that the following injuries caused by the motor accident gives rise to a permanent impairment not greater than 10%: · lumbar spine – transverse fractures at L1, L2 and L3, aggravation of pars defect at L5/S1; · thoracic spine – soft tissue – resolved; · left shoulder – soft tissue, and · cervical spine – soft tissue. |
REASONS
BACKGROUND
On 8 October 2018 Mr Fahim Rahman (the claimant) was injured whilst driving his motorcycle which was stationary waiting to turn right. The insured driver collided with the rear of the bike causing the claimant to be thrown over the handle and onto the roadway suffering injuries.[1]
[1] Insurer’s bundle, p 19.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Rahman any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Rahman’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Wallace and dated 5 October 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted current symptoms included intermittent aching pain in the lower cervical spine radiating to the left trapezius muscle and the lateral deltoid region of the left shoulder. There was no paraesthesia or numbness in the upper limbs although complaints of intermittent weakness in the left arm. There was no recurrent pain in the thoracic spine.
The claimant complained of constant aching pain at the L2, L3 and L4 spinous processes radiating to the paravertebral regions bilaterally.
Neurological examination of the upper limbs could not elicit any reflexes although power and light touch sensation was intact. Neurological examination of the lower limbs was normal.
Examination of the bilateral shoulder showed no swelling or deformity similar range of motion, normal strength in abduction and external rotation and no tenderness in the left shoulder.
The Medical Assessor diagnosed a musculoligamentous strain of the cervical spine and fractures of the right transverse processes of L1, L2 and L3. The Medical Assessor found no injury to the left shoulder and thoracic spine.
The Medical Assessor assessed impairment of the cervical spine and lumbar spine as DRE category II resulting in an overall whole person impairment of 10%. There was no deduction made for any symptomatic pre-existing condition.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The clinical records of the general practitioner (GP) in June 2018 noted related health conditions with symptoms of anxiety and depression and a desire to reduce the number of subjects in one semester.[11]
[11] Insurer’s bundle, p 152.
Medical records post-accident
The ambulance record included the following history:[12]
“C/T 25 YO Male Vehicle vs Motorbike. Pt states was in the right lane with his indicator on, stationary when the car behind him didn’t see him and hit him from behind at approximately 50 km/hr. Pt fell over from a motorbike role of the road…. Abrasion to right lower back. Nil other obvious deformity, nil head strike, nil LOC. Nil C-spine tenderness …. Pt C/O pain to lumbar back and hips. Nil Motor/sensory deficit.”
[12] Insurer’s bundle, p 36.
A CT scan dated 8 October 2018 showed mildly displaced fractures through the right transverse processes at L1 and L2 and non-displaced right transverse process access fracture at L3.[13]
[13] Insurer’s bundle, p 59.
The claimant completed a claim form on 8 October 2018 when he stated that he suffered injuries to the lumbar spine, severe neck pain and “several soft tissue injuries in my left hand, back and both sides of the hip” from the motor accident.[14]
[14] Insurer’s bundle, p 19.
The clinical note of the GP dated 12 October 2018 referred to tenderness in the lower back, restricted movement in the neck, shoulder and upper back muscles.[15] A certificate of capacity dated 12 October 2018 referred to whiplash injury to neck, fracture transverse vertebrae lumbar spine at L1-3, soft tissue injury left buttock, upper back strain and anxiety.[16]
[15] Insurer’s bundle, p 152.
[16] Claimant’s bundle, p 37.
On 7 November 2018 the GP noted the back pain was getting worse after standing or walking more than one hour or bending forward and the claimant was waiting to see a spinal surgeon.[17]
[17] Claimant’s bundle, p 74.
On 26 November 2018 the claimant was reviewed by Dr Ashish Diwan, spinal surgeon who diagnosed transverse process fractures at L1, L2 and L3. The doctor recommended an MRI scan be performed to rule out any discogenic component to the back pain.[18]
[18] Claimant’s bundle, p 92.
The MRI of the thoracolumbar spine dated 10 December 2018 noted the prior CT scan which diagnosed fractures at L1, L2 and L3 and showed no evidence of evidence of the thoracic or lumbar vertebrae fracture.[19]
[19] Insurer’s bundle, p 45.
The claimant was reviewed by Dr Diwan on 9 January 2019 who noted the recent MRI scan and opined that although the claimant had fractured his transverse processes in the motor accident, there was no destabilising injury to the spinal column. Dr Diwan opined that it appeared that the motor accident significantly aggravated the pars issue which was causing ongoing symptoms.[20]
[20] Insurer’s bundle, p 65.
An Allied health recovery request (AHRR) dated 14 January 2019 requested clinical assessment of the L5/S1 spondylolisthesis for lower back pain.[21]
[21] Claimant’s bundle, p 47.
An AHRR dated 21 February 2019 noted the lower back pain and “new area – possible left shoulder rotator cuff tear/shoulder bursitis impingement”.[22]
[22] Claimant’s bundle, p 68.
On 26 February 2019, Dr Alam noted that the claimant was suffering from whiplash injury to the neck, lumbar spine injury, left shoulder pain and anxiety restricting his ability to study in that semester.[23] The clinical note referred to left shoulder pain since the motor accident with painful left shoulder abduction.[24]
[23] Insurer’s bundle, p 66.
[24] Insurer’s bundle, p 154.
An X-ray of the left shoulder dated 26 April 2019 was normal.[25]
[25] Insurer’s bundle, p 148.
A certificate of capacity dated 22 May 2020 noted whiplash injury to neck, fracture transverse vertebrae of lumbar spines, soft tissue injury of the left buttock, upper back strain and left shoulder strain.[26]
[26] Insurer’s bundle, p 62.
A report by the physiotherapist dated 7 October 2020 noted ongoing pain and stiffness at L2-4.[27]
[27] Insurer’s bundle, p 171.
Dr Alam, GP provided a report dated 25 August 2021.[28] The doctor noted that the claimant initially presented on 12 October 2018 following a motor accident on 8 October 2018 complaining of lower back, neck and upper back pain. The doctor noted that the claimant did not complain of shoulder pain on his first visit but on examination the shoulder muscle was stiff and tender.
[28] Insurer’s bundle, p 79.
Dr Alam opined that the shoulder complaints were related to the motor vehicle accident.
The MRI scan of the lumbar spine dated 11 August 2023 noted worsening pain extending into legs and noted grade 1 anterolistheses of L5 on S1 due to bilateral, chronic-appearing L5 pars defect.[29]
[29] Insurer’s bundle, p 42.
Qualified opinions
Dr Peter Conrad, surgeon, was qualified by the claimant and provided a report dated
29 March 2021.[30] That report followed on examination by video consultation.[30] Claimant’s bundle, p 18.
On examination the doctor noted mild to moderate restriction of movement in an asymmetrical fashion in the cervical spine, full movement of the right shoulder and restricted movement in the left shoulder.
Dr Conrad opined that the CT scan at St George Hospital showed transverse fractures at T11, T12, L1 and L2. The doctor assessed impairment of the neck at 5%, the back at 5% in the left shoulder by reason of loss of range of motion at 4% resulting in a combined impairment of 14%.
Dr Graeme Doig, orthopaedic surgeon, was qualified by the insurer and provided a report dated 7 July 2021.[31] The doctor noted a history of the accident including that the claimant developed bilateral shoulder pain shortly after it, initially on the non-dominant left side.
[31] Insurer’s bundle, p 23.
On examination Dr Doig noted the cervical spine exhibited no restrictions. Range of motion of both shoulders was normal with the positive impingement sign on the right side.
Dr Doig diagnosed bilateral soft tissue injuries at the shoulders which settled satisfactory with minor impingement on the dominant right side, and multiple transverse process fractures at L1, L2 and L3. Impairment was assessed at 5% for the lumbosacral spine.
SUBMISSIONS
Claimant’s submissions dated 10 November 2023[32]
[32] Claimant’s bundle, p 1.
These submissions were filed seeking a review of the medical assessment.
The claimant suggested that it was “not readily apparent” whether the Medical Assessor considered the allegations of injuries to left shoulder and thoracic spine and seemingly made contradictory findings.
The claimant also submitted that the Medical Assessor made a finding that the left shoulder symptoms were due to referred pain from the cervical spine injury and there was a failure to properly assess the whole person impairment associated with the claimant’s left shoulder.
The claimant noted that there was identical range of motion in the claimant’s left and right shoulders. He submitted that he was left to speculate whether the Medical Assessor had used the uninjured right shoulder as a baseline and otherwise had failed to correctly apply clause 6.51 of the Guidelines.
Insurer’s submissions undated[33]
[33] Insurer’s bundle, p 13.
The insurer noted that clinical records remained outstanding at that time. The injuries listed in the claim form were to the lumbar spine, neck, left hand and hip and the claimant sustained multiple fractures at L1, L2 and L3.
A left shoulder injury was first reported to the GP five (sic four) months after the motor accident on 12 October 2018. Reference is made to the second physiotherapy AHRR dated 21 February 2019 which recorded “new possible area left shoulder rotator cuff tear shoulder bursitis impingement”. Complaints were made to Dr Alam at that time to arrange for an X-ray of the left shoulder.
The insurer referred to the medical evidence and noted that it relied on the opinion of
Dr Graeme Doig dated 7 July 2021. Dr Doig diagnosed bilateral soft tissue injuries in the shoulders which had pulled down with minor impingement on the right side and that the claimant suffered transverse process fractures of L1-3. The doctor found no restriction of movement in the cervical spine.The insurer noted that the assessment undertaken by Dr Conrad was via video conference. It was noted that Dr Conrad appeared to diagnose fractures at the T11 and T12 transverse processes which was not supported by the medical imaging or contemporaneous evidence.
Insurer’s submissions dated 1 December 2023[34]
[34] Insurer’s bundle, p 4.
These submissions opposed the application to review the medical assessment.
The insurer noted that the cervical spine, left shoulder, thoracic spine and lumbar spine were referred for assessment and that the medical assessment certificate was correct.
The insurer accepted that the principles in Nguyen provide that a reduction range of motion of the shoulder secondary to a spinal injury was assessable. It submitted that the Medical Assessor found that both shoulders demonstrated an identical range of motion movement and whilst there was a slightly decreased range of motion, there was no permanent impairment by reason of cl 6.51 of the Guidelines.
The insurer otherwise submitted that any inconsistencies in the medical assessment certificate were benign.
RE-EXAMINATION
Mr Rahman was examined by Medical Assessor Kenna on 18 April 2024. The examination report is as follows:
“HISTORY
Pre-accident medical history and relevant personal details
Mr Rahman is a 31-year-old male, married with one child. His partner works part-time. They now reside in Hobart, having moved there for an IT role in 2020.
The accident occurred in NSW when he was residing in Sydney, with the accident occurring on 8 October 2018.
At the time, he had been studying in professional accounting and working part-time to earn income as an Uber delivery driver and also working in retail.
With regards to relevant past history, he states:
- has not been involved in motor vehicle accidents previously or indeed since
- no prior history of neck or back pain
- but acknowledges that he did injure his right shoulder in 2020 in the gym and still remains symptomatic in part but that this was not injured in the subject motor vehicle accident.
History of the motor accident: 8 October 2018
The accident occurred on 8 October 2018. He was riding a motorbike, wearing a helmet and jacket. It was early afternoon, and he was doing a food delivery in Bexley (Uber). He was stationary at lights waiting to turn right when his motorbike was rear-ended by a vehicle. Subsequently, he was thrown off the bike to the ground. He believes he may have sustained a brief period of loss of consciousness.
That both police and ambulance attended, and he was transported by ambulance to St George Hospital where he remained under observation for the remainder of the day, being treated initially with bed rest and analgesics, before being discharged home into the care of his treating general practitioner.
History of symptoms and treatment following the motor accident
He came under the care of his treating GP, Dr Alam of Rockdale.
Treatment initially consisted of rest and subsequently also physiotherapy. To that extent, he has undergone no injections, operations or procedures, noting that his condition has improved over time to an extent, but he still remains symptomatic in part, noting that he is now combining physiotherapy and gym. He states that the combination of both keeps him mobile, but if he stops this routine, he starts to experience associated spinal stiffness. He is no longer seeing a GP for management.
Details of any relevant injuries or conditions sustained since the motor accident
R shoulder injury, post accident, in a gym.
Current symptoms
Mild symptoms of left sided neck discomfort and central lower back pain.
But no referral of symptoms into either upper or lower limbs.
Current and proposed treatment
Nil further proposed
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of range of motion (where applicable) of each of the injuries assessed.
Mr Rahman was co-operative throughout.
Very fit looking individual who works out with weights
Moved freely, normal gait and no difficulty undressing.
Cervical spine (cervicothoracic)
No muscle guarding or muscle spasm present and no asymmetry present.
No neurological deficit evident in either upper limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement range of movement was as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
10% restriction
Extension
10% restriction
Rotation to the right
10% restriction
Rotation to the left
10% restriction
Lateral bending to the right
10% restriction
Lateral bending to the left
10% restriction
NEUROLOGICAL TESTS:
REFLEXES:
REFLEX
LEFT
RIGHT
TRICEPS JERK
Normal
Normal
BICEPS JERK
Normal
Normal
BRACHIORADIALIS
Normal
Normal
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING: nil
LEFT (cm)
RIGHT (cm)
UPPER ARM
33
33
FOREARM
29
29
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
C4
5/5
NORMAL
NORMAL
C5
5/5
NORMAL
NORMAL
C6
5/5
NORMAL
NORMAL
C7
5/5
NORMAL
NORMAL
C8
5/5
NORMAL
NORMAL
T1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
DURAL TENSION TESTS:
TEST
RIGHT
LEFT
PASSIVE NECK FLEXION
Normal
Normal
BRACHIAL PLEXUS STRETCH
Normal
Normal
Thoracic spine (thoracolumbar)
On inspection of the thoracic spine posture was normal. No tenderness on palpation of the thoracic spine and no muscle guarding or spasm. No neurological deficit evident in either upper limb.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENT
RANGE OF MOTION
Flexion
100% full
Extension
100% full
Side bending to the right
100% full
Side bending to the left
100% full
Rotation to the left
100% full
Rotation to the right
100% full
Lumbar spine (lumbosacral)
Muscle guarding and spasm present and non-uniform range of movement as follows.
No neurological deficit in either lower limb.
No evidence of non-verifiable radiculopathy as any distal symptoms did not follow a specific nerve root.
On palpation stiff and slightly tender on ballottement of the upper lumbar spine (over spinous processes L1/2 to L4) with right multifidous spasm in the paravertebral gutter.
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
10% restriction
Rotation to the right
100% full
Rotation to the left
10% restriction
Lateral bending to the right
100% full
Lateral bending to the left
100% full
NEUROLOGICAL TESTS
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
LEFT
RIGHT
Sciatic nerve stretch (straight leg raise)
Normal
Normal
Femoral nerve stretch (prone knee bending)
Normal
Normal
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
No muscle wasting of thighs or calves.
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
MUSCLE ATROPHY:
THIGH
LEFT = RIGHT
CALF
LEFT = RIGHT
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
Normal
Normal
SLUMP
Normal
Normal
Upper extremity
No rotator cuff pathology.
Right Shoulder
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal Rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Goniometer measured and repeated
Left Shoulder
On palpation, tender over the left acromioclavicular joint.
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
160°
Figure 38 (43)
180°
1
Extension
50°
Figure 38 (43)
50°
0
Adduction
30°
Figure 41 (44)
50°
1
Abduction
150°
Figure 41 (44)
180°
1
Internal Rotation
80°
Figure 44 (45)
90°
0
External Rotation
70°
Figure 44 (45)
90°
0
Total
3
Goniometer measured and repeated
3% UEI x 0.6 = 2% WPI
Comments on consistency
The claimant was consistent.
REVIEW OF DOCUMENTATION
Summary of relevant radiological and medical imaging and other investigations
8/10/2018 – St George Hospital – CT – Right-sided transverse process fractures at L1/L2/L3.
7/12/2018 – MRI – Grade 1 spondylolisthesis of L5 on S1 with bilateral pars defect. No evidence of thoracic or lumbar fractures
26/4/2019 – Left shoulder plain film – No evidence of fracture.
11/08/2023 – MRI- Lumbar spine: indicates initial fractures have since healed.
DETERMINATIONS
Diagnosis and reasons
Mr Rahman was seen some 5½ years post motor vehicle accident yet remains symptomatic in part.
Pertaining to his current clinical presentation as noted, he continues to experience symptomatology pertaining to the cervical spine, left shoulder and lumbar spine. There is no ongoing symptoms in the thoracic spine.
Clinical examination indicated good functional mobility of the cervical spine with no evidence of muscle spasm and no neurological deficit involving either upper extremity. There was no muscle wasting of either upper limb with neurological examination normal as noted.
Accompanying this, whilst it was initially considered that the left shoulder had a Nguyen component, it is evident that he is tender over the left acromioclavicular joint and demonstrated full movement of the right shoulder (uninjured and not complained of as a result of the accident), but pertaining to the left shoulder there is still some reduction in movement and I consider this is most likely associated with persistent left acromioclavicular joint irritability.
Nevertheless, it also needs to be noted that he is active in the gym and acknowledges for example he injured the right shoulder in the gym.
The left shoulder was initially listed as an injury, and it remains slightly short of end range movement with associated symptomatology but no clearly defined rotator cuff pathology.
There is no ongoing cervicogenic component impacting left shoulder range of motion.
As noted on initial x-rays (St George), it confirmed evidence of a mildly displaced transverse fractures of L1 and L2 and an undisplaced fracture of the right transverse processes at L3.
Subsequent x-rays indicate that the fractures have healed.
The clinical examination now indicates that he remains symptomatic in part. He is not particularly symptomatic daily but on palpation there is some reproduction of symptoms, but as noted only some slight end range restriction in certain parameters but absolutely no neurological deficit involving either lower extremity. He presented with a normal gait.
One notes, therefore, there was no previous history of either cervical or thoracolumbar pain or indeed left shoulder symptomatology prior to the motor vehicle accident.
He has not been treated surgically, nor has he required any other procedures, but has been a keen attendee of physiotherapy and also attends the gym on a very regular basis.
He is no longer under the care of a treating general practitioner. No further investigations are performed, and he has not seen any specialist in recent times.
That being the case, I consider the injuries occurred from the motor vehicle accident involve the cervical spine. Residual symptomatology relates to the cervical and lumbar spine and left shoulder.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· Cervical spine
· Lumbar spine
· Thoracis spine
· Left shoulder
Any initial injuries pertaining to the thoracic spine have since resolved.
Similarly, any initial cervicogenic component pertaining to the left shoulder symptomatology has also since resolved.
In view of the time that has elapsed, I would view his condition as stabilised. He is aware that he has remained symptomatic in part and as a result, over five years post-accident, he notes that if he is not receiving active treatment his symptoms partially return. Hence, he attends the gym, which he self-funds, at least once a week and also physiotherapy at least once a week, which continues to be funded by the Commission, with the physio working on his core strength and back.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Permanent impairment table
Body Part or System
AMA Guides/ The Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
Cervical Spine
DRE I
ch3, pgs102-107, AMA4
Tables 7 & 8
The Guidelines
Yes
0
0
0
Lumbar Spine
DRE II
ch3, pgs 102-107, AMA4
Tables 7 & 8
The Guidelines
Yes
5
0
5
Left shoulder
H3, pgs 43-45
Figs 38-44
AMA IV Guides
Yes
2
0
2
* 7%WPI = percentage whole person impairment
Lumbar spine (Chapter 3, page 182-AMA Guides)).
DRE Lumbosacral Category II (minor impairment).- Structural Inclusions
Posterior element fracture without dislocation. The fracture has healed and there is no loss of motion segment integrity. Furthermore, the spinous or transverse process fracture without a vertebral body fracture is a Category II impairment because it does not disrupt the spinal canal.
Cervical spine (ch 3, pge 103, AMA Guides)
DRE I. No structural inclusions. Impairment is 0% on the basis that he has no significant clinical findings, no muscular guarding, no significant loss of integrity on lateral flexion or extension on x-ray, and no indication of impairment related to injury or illness. No presence of asymmetry or muscle spasm.
Pre-existing/subsequent impairment
Nil.
Apportionment
Nil.
Effects of treatment
Nil.
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
7%
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
A finding of zero percent (0%) permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, pursuant to the relevant Guides and Guidelines, permanent impairment arising from the injury is assessed at 0%.
Summary-of clinical findings
As noted on examination, injuries resulting from the accident are as listed: cervical spine, thoracic spine, lumbar spine and left shoulder.
It is considered that the above areas were causally affected. That there were no relevant pre-existing factors. That the thoracic spine has since essentially resolved. That he remains symptomatic (but no signs pertaining to the cervical spine DRE I = 0%).
Pertaining to left shoulder symptoms and impairment, this now purely relates to local pathology as there is no ongoing cervicogenic component, i.e. Nguyen, but he has some restricted range of movement but only at end range which I consider is potentially due to the motor vehicle accident in light of the absence of any other causation.
Noting he has also previously injured his right shoulder in the gym but that has since affected a full recovery and clinical examination indicates full range of movement.
Pertaining to the lumbar spine, he has largely regained his range of movement but there is slight end range restriction in certain parameters and associated with the radiological findings of transverse process fractures, he has incurred a DRE II with 5% whole person impairment.
Whole person impairment is 7%WPI and is not greater than 10%.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[35]
[35] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
The contemporaneous history, nature of the motor accident and the initial scans show that the claimant suffered multiple transverse fractures which are assessed as DRE Category II. The claimant also has other symptoms including asymmetrical movement caused by the motor accident also resulting in an assessment of DRE Category II.
We accept that there was a soft tissue injury to the thoracic spine based on the contemporaneous complaints and the nature of the accident. The radiology reports do not report fractures in the thoracic spine. There is no basis to conclude that there were fractures in the thoracic spine, and we do not accept Dr Conrad’s unexplained opinion to the contrary.
We accept that the claimant suffered a soft tissue injury to the cervical spine caused by the motor accident evidenced by the nature of the accident and the contemporaneous complaints. The recent medical examination shows that there was minor limitation of movement which does not satisfy any description in DRE Category II. Whilst we accept there are ongoing cervical symptoms, this body part is assessed at 0%.
We accept that the claimant probably injured his left shoulder which is supported by the conclusion of Dr Alam in his report that the shoulder muscle was stiff and tender.[38] The findings by Medical Assessor Kenna show that the ongoing limitation of left shoulder movement is due to localised pathology as opposed to the Nguyen principle. That conclusion is consistent with the reduction of symptoms in the cervical spine and the absence of any referred pain.
[38] See para 35 herein.
CONCLUSION
The impairment of 7% is different from that undertaken by Medical Assessor Assem. Accordingly, the medical assessment certificate is revoked, and new medical assessment certificate is issued.
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