Ralevski v QBE Insurance (Australia) Limited
[2023] NSWPICMP 293
•30 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ralevski v QBE Insurance (Australia) Limited [2023] NSWPICMP 293 |
| CLAIMANT: | Tode Ralevski |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 30 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS –Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 26 June 2019; the dispute related to the assessment of whole person impairment (WPI); review of certificate of Medical Assessor (MA) Chan who assessed 10% WPI; dispute as to lumbar spine injury; dispute as to causation of carpal tunnel syndrome; dispute as to causation of left hip symptoms of trochanteric bursitis and gluteus medius bursitis; Held – sustained soft tissue injury to the cervical spine with exacerbation of pre-existing osteoarthritis with referred radicular symptoms of paraesthesia to the right upper limb; no evidence of any prior lumbar symptoms; delay in complaint because focused on cervical spine; found soft tissue injury to lumbar spine caused by accident; accident not cause of right carpal tunnel syndrome; neurophysiological studies not determinative of a carpal tunnel diagnosis; provocative clinical tests for carpal tunnel syndrome negative bilaterally; symptoms of paraesthesia to the right upper limb referred from the cervical spine; no clinical findings to support diagnosis of carpal tunnel syndrome in left hand; bilateral carpal tunnel syndrome not caused by accident; left hip not symptomatic; left hip normal on examination; any injury to left hip; trochanteric bursitis, gluteus medius bursitis not caused by accident; no evidence cervical radiculopathy; non-verifiable radicular complaints; assessed as diagnosis related estimate (DRE) category II; assessed at 5% WPI; lumbar spine assessed as DRE category 1; assessed at 0% WPI; Certificate of MA revoked; total 5% WPI. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Wing Chan dated · cervical spine – soft tissue injury with exacerbation of pre-existing osteoarthritis and referred symptoms to right upper extremity/hand, and · lumbar spine – soft tissue injury. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 26 June 2019 Mr Tode Ralevski (the claimant) was stationary in his vehicle waiting to enter the Hume Highway when the insured vehicle travelling on the incorrect side of the road collided with his vehicle head on (the accident).
Mr Ralevski was 68 years of age at the date of accident and is now 72 years of age.
Mr Ralevski has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Ralevski under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Ralevski as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
The dispute as to permanent impairment was referred to Medical Assessor Wing Chan. Medical Assessor Wing Chan issued a certificate dated 5 September 2022.
REVIEW PROCEDURE
[1] Section 7.20 of the MAI Act.
On 29 September 2022 Mr Ralevski sought a review of the medical assessment of Medical Assessor Chan.
On 10 November 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.
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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).[3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
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 Medical Assessor.[4]
[4] 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.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 3 April 2023 the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3. '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:
4.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
6. This, therefore, involves a medical decision and a non-medical informed judgement.
7. 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.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
8. (a) loss or asymmetry of reflexes;
9. (b) positive sciatic nerve root tension signs;
10. (c) muscle atrophy and/or decreased limb circumference;
11. (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
12. (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
CERTIFICATE OF MEDICAL ASSESSOR WING CHAN
The following injuries were referred to Medical Assessor Chan:
· cervical spine – soft tissue injury, right paracentral disc bulge, annular tear, radicular symptoms in both arms;
· lumbar spine – soft tissue injury, reduced range of motion, radicular symptoms in both legs;
· left hip – soft tissue injury, reduced range of motion, trochanteric bursitis, and
· right and left hands – carpal tunnel syndrome, soft tissue injury, reduced range of motion.
Medical Assessor Chan reported Mr Ralevski had retired from his work with Qantas in 2015. He reported Mr Ralevski had no past history of low back problems prior to the accident.
Mr Ralevski reported immediately after the accident he felt some pain in the posterior part of his neck. The following day he experienced neck pain, pins and needles sensation in his right arm and low back pain, more on the right side.
Mr Ralevski reported he now had constant pain in the neck radiating to both shoulders. He had numbness in the right thumb and right index, middle and ring ringers. His left hand has normal touch sensation. He also complained of intermittent pain in his lower back, sometimes radiating to the front of the right thigh, to the leg and toes. He made no complaint about his left hip.
On examination of both the cervical spine and the lumbar spine Dr Chan found there were no clinical findings of asymmetry of reflexes, muscle atrophy, muscle weakness and no sensory loss that is anatomically localised to an appropriate spinal nerve root distribution and therefore, no signs of cervical or lumbar radiculopathy.
Medical Assessor Chan reported there was no complaint in the shoulders and Mr Ralevski had a full range of movement in the shoulder, elbow and wrist joints of both upper limbs. He found no wasting in the thenar eminence of both hands. There was a decrease in touch sensation in the right thumb, index, middle and ring fingers. The grip strength in the right hand was less than the left but normal in the arms and forearms. Touch sensation in the thumb and fingers of the left hand was normal.
Medical Assessor Chan concluded Mr Ralevski had pre-existing osteoarthritis in his cervical, thoracic and lumbar spine. He found Mr Ralevski sustained a soft tissue injury to the cervical spine and the lumbar spine causally related to the accident.
Medical Assessor Chan found there was no mention of hip complaints in the four months after the accident, noting it was not mentioned by the general practitioner (GP), in the Allied health recovery requests (AHRR’s) dated 25 July 219 and 7 November 2019 or when he was examined by Dr van Gelder on 1 November 2019. He found that the range of motion in the different planes of motion were all in the normal range. He found there was no tenderness in the left hip.
Medical Assessor Chan noted the left hip X-ray showed degenerative changes in the left acetabulum and the ultrasound showed trochanteric bursitis and gluteus medius tendinosis. He did not find any tenderness and nor did he make a clinical finding of trochanteric bursitis at the time of the assessment. He concluded Mr Ralevski did not sustain any injury to the left hip in the accident.
Medical Assessor Chan noted there was no complaint of numbness in the right hand before the accident and the complaint of numbness was noted after the accident. He concluded the carpal tunnel syndrome was causally related to the accident.
Noting there was no mention in the clinical record of Dr Ahmed of any complaint pertaining to the left hand, no complaint was made to Dr van Gelder on 1 November 2019, and there was no mention in either AHRR Medical Assessor Chan concluded Mr Ralevski did not have median nerve dysfunction (carpal tunnel syndrome) in the left wrist causally related to the accident.
Medical Assessor Chan found the following injuries were caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· right hand – soft tissue injury – carpal tunnel syndrome.
He found the following injuries were not caused by the accident:
· left hip – trochanteric bursitis, gluteus medius tendinosis, and
· left hand – carpal tunnel syndrome.
Medical Assessor Chan assessed 5% WPI for the cervical spine, 0% WPI for the lumbar spine, and 5% WPI for the right hand. Combining all impairment values, he found a 10% WPI.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 9 February 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 64. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD2 and paginated from pages 1 to 54.
In response to a Direction issued by the Panel the claimant uploaded to the portal the clinical notes of Dutton St Medical and Dental Centre marked AD3.
Application for personal injury benefits (the application)
In the application dated 8 July 2019 the claimant described his injuries as follows:
16.“Because the impact of the accident was hard, I felt pain in my neck and head. The pain continued through the night where I couldn’t sleep, and the next day was the same.
17.I went to see a doctor on the 28th June and she gave me pain killers which are not helping so I now have to get x-rays done.”
Treating medical evidence
Clinical notes of Dutton St Medical and Dental Centre
The clinical notes commence on 22 August 2012. The records disclose a history of dyslipidaemia and chronic reflux oesophagitis.
On 27 December 2018 Dr Soe, GP reported pain and tenderness to the base of the left thumb and left hand pain and tenderness. He underwent an ultrasound guided steroid injection for tenosynovitis of the flexor pollicis on 28 December 2018. On 8 April 2019 Dr Tommalieh reported thumb tenosynovitis and on 23 May 2019 Dr Khoury referred to a left trigger finger in the thumb.
Prior to the accident the clinical notes do not contain any report of neck, back or left hip pain or of numbness or pins and needles in the right hand.
On 28 June 2019 Dr Ahmed, GP reported Mr Ralevski had been in a car accident two days ago, hit from the front, no loss of consciousness, no vomiting, no head bump, neck pain, behind ears, cannot sleep due to pain, pain at back, needles sensations.[7] On examination he reported tenderness of the cervical spine and paraspinal area and tenderness to the lumbar and paralumbar spine areas.
[7] AD1 p 35
On 5 July 2019 Dr Ahmed reported neck pain and requested a cervical spine X-ray.
On 8 July 2019 Dr Ahmed reported the X-ray of the neck showed mild spondylotic changes and on 12 July 2019 Mr Ralevski presented for referral for physiotherapy with continuing neck pain.
On 25 July 2019 Dr Beadle, GP reported neck pain since the accident. He also reported complaints of numbness into the fingers of the right hand.
On 8 August 2019 Dr Ahmed reported Mr Ralevski could not sleep because of numbness in the three middle fingers of the right hand which he had experienced for two weeks. She also reported neck pain and “weak hands”.
On 5 September 2019 Mr Beadle reported Mr Ralevski still had neck pain, pain in the hand and now pain in the lower back. He reported numbness in the fingers of the right hand had not been improving.
Certificates of capacity/certificate of fitness dated 15 September 2019 and 17 November 2019 include the diagnosis “neck pain, due to disc bulge, numbness of right hand, headache, neck stiffness”.[8]
[8] AD2 p 25
On 10 October 2019 Mr Beadle reported Mr Ralevski was complaining of the same symptoms in his neck and lower back and pins and needles in his right hand and fingers.
On 10 November 2019 Dr Ahmed reported Mr Ralevski wanted to include back pain in his MVA form. She reported tenderness on all spines especially lumbar and tenderness on paralumbar areas. Mr Ralevski was referred for an X-ray of the thoracolumbar spine.
On 17 November 2019 it was reported Mr Ralevski had attended eight sessions of physiotherapy without much improvement.
On 25 February 2020 Dr Ahmed reported the nerve studies showed bilateral carpal tunnel syndrome.
Mr Cosikan Beadle, physiotherapist
In an AHRR dated 25 July 2019 the diagnosis reads, “WAD 2 affecting Neck and slight numbness down into (R) hand, also affecting left lower back ===2 areas”.[9]
[9] AD2 p 44.
In an AHRR dared 7 November 2019 the diagnosis is unchanged but under current signs and symptoms the following additional comment appears “has lower back pain in (R) side too since 2 weeks after the MVA”.
Dr James van Gelder, neurosurgeon
Mr Ralevski saw Dr van Gelder on 30 October 2019.[10] In a report dated 1 November 2019 he reported mild central cervical tenderness, a good range of motion and normal examination of the shoulders. Other than sensory changes in the fingers of the right hand he did not find any neurological signs. He reported decreased brachioradialis reflex on both sides of uncertain significance.
[10] AD1 p 54.
Dr van Gelder reported the MRI scan showed C6/7 right disc bulging and mild right neural foraminal stenosis. He stated he thought the scan also showed C7-T1 neural foraminal stenosis on the right side which he thought might correlate with the hand symptoms.
Dr van Gelder reported the MRI scan did not show any serious injuries or any indication for surgical treatment.
Dr van Gelder reviewed Mr Ralevski on 25 August 2020. He provided a report to
Dr Ahmed dated 8 September 2020.[11] He reported Mr Ralevski complained of right sided neck pain and numbness in his fingers. He stopped physiotherapy in January. He described neck pain and headaches and difficulty sleeping. Pain radiated into his right arm and fingers. He also described low back pain radiating into the left inguinal region.[11] AD1 p 55.
Dr van Gelder found minor tenderness in the cervical spine. He was normal in the shoulders and had no neurological signs in the arms other than the sensory changes in the right hand. He reported Mr Ralevski was tender in the low back on extension and rotation and over the posterior superior iliac spine and sacroiliac area.
Dr van Gelder reported the neurophysiological studies showed carpal tunnel syndrome worse on the right side and suggested Mr Ralevski might benefit from carpal tunnel surgery.
In a report dated 20 October 2020 Dr van Gelder noted a CT scan of the cervical spine of September 2020 showed cervical spondylosis changes.[12] On the right side he reported facet joint arthritis. He reported spondylotic neural foraminal stenosis in multiple levels, particularly at C4/5 and C7/T1. On the left side he noted advanced facet arthritis in the upper cervical spine and severe neural foraminal stenosis in the upper cervical spine. He reported the ultrasound of the left hip showed trochanteric bursitis and gluteus medius tendinosis.
Dr van Gelder reported the CT scan of the lumbar spine showed facet arthritis, anterolateral bridging osteophytes and thickening of the spinous processes.
Dr van Gelder discussed surgery to decompress the nerve roots and surgery for his carpal tunnel syndrome. Mr Ralevski indicated he was not interested in surgical treatments.
Imaging
[12] AD1 p 56.
MRI of the cervical spine, 13 August 2019 – the report reads:
26. “1. There is multilevel bilateral facet joint arthropathy from C2/3 to C5/6 level. There is significant left sided facet joint arthropathy at C3/4 level.
27. 2. There is right paracentral disc bulge along with an annular tear causing compression upon right side of cervical tissue and also mild narrowing of the right neural foramina, however, no compression upon exiting nerve root detected”.[13]
[13] AD1 p 59.
Nerve Conduction Studies/EMG, 21 February 2020 disclosed bilateral median nerve dysfunction at the wrists, severe on the right, mild on the left.[14]
[14] AD1 p 58.
X-ray left hip, 15 September 2020 – the report reads:
28.“…There is acetabular sclerosis bilaterally suggesting of degeneration. Bilateral enthesophathy at the greater trochanters identified …”
Left hip ultrasound, 15 September 2020 – the report reads:
29.“The gluteus medius demonstrates distal calcific tendonosis. No tears identified. The gluteus minimus tendon is intact. The trochanteric bursa is thickened and demonstrates probe tenderness consistent with trochanteric bursitis. There is synovial hypertrophy and bony irregularity at the anterior hip joint margins suggestive of degenerative change”.[15]
[15] AD1 p 61.
CT cervical spine, 15 September 2020 – the report disclosed “significant spondylitic change with facet joint arthropathy within the cervical spine”.
CT lumbar spine and sacroiliac joints, 15 September 2020 – the report disclosed “mild lumbar spondylitic change … with no definite evidence of sacroiliitis.”
MRI scan of the cervical spine, 15 September 2020 disclosed spondylitic change, most prominent at the C6/7 level.[16]
Medico-legal evidence
Dr Evan Dryson, 29 July 2021
[16] AD1 p 63.
Dr Dryson, occupational physician assessed the claimant on 21 July 2021.
Dr Dryson reported Mr Ralevski had neck pain radiating down both arms, more marked on the right than the left as far as the fingers. He had numbness in the fingers of both hands, decreased strength in the right hand and can drop objects that he is holding.
Dr Dryson reported Mr Raleski also experiences intermittent low back pain with occasional pain into the legs and occasional numbness in the feet.
On examination Dr Dryson noted a full range of movement in the shoulders. Mr Ralevski had normal biceps, triceps and brachioradialis reflexes in both arms. He reported decreased pinprick sensation in both hands, conforming to the carpal tunnel syndrome. Tinel’s test was negative over the median nerve at both wrists. Dr Dryson noted thenar wasting in both hands. Power was satisfactory in all muscle groups in both arms, but grip strength was reduced.
In the lumbar spine Dr Dryson reported forward flexion was reduced to half, lateral flexion to the right was near normal, to the left it was reduced to half, extension was normal, and rotation was reduced to one third the normal distance in both directions.
Mr Ralevski reported decreased pinprick sensation in the right leg involving the medial foot and calf. Power was normal, straight leg raising was normal and knee and ankle reflexes were normal. He concluded radiculopathy was not confirmed.
Dr Dryson noted the radiological investigations showed Mr Ralevski had significant pre-existing cervical spondylosis and less marked lumbar spondylosis. However, there was no impairment prior to the accident so he concluded the accident significantly aggravated those conditions. He also concluded the bilateral carpal tunnel syndrome was caused by the accident noting there had been numbness in the fingers of the right hand since the accident.
Dr Dryson diagnosed:
· aggravation of lumbar spondylosis with non-verified radiculopathy, and
· bilateral carpal tunnel syndrome.
Dr Dryson assessed a 17% WPI, based on a 5% WPI for the cervical spine (assessed as DRE cervicothoracic spine impairment Category II), a 5% WPI for the lumbar spine (assessed as DRE lumbosacral spine impairment Category II), a 4% WPI for the right hand (due to the carpal tunnel syndrome) and a 4% WPI for the left hand (due to the carpal tunnel syndrome).
Dr Anthony Smith, orthopaedic surgeon
Dr Smith assessed the claimant and provided a report dated 18 November 2021. Dr Smith stated the claimant complained of neck pain, headaches, a clicking sensation in the neck and pain radiating down the right arm to the hand with numbness in the hand involving the thumb and all fingers except the little finger.
Dr Smith found Mr Ralevski sustained an aggravation to his pre-existing, previously asymptomatic, cervical degenerative disease which he considered would have recovered after six months at the most. He said he may be having episodic exacerbations from time to time.
Dr Smith was of the view the claimant was embellishing his condition. He reported weakness in the right upper limb where there is work hypertrophy of the forearm muscles in excess of those on the left and work hardening change on the thumb and index finger in excess of the left. Mr Smith found the weakness exhibited by the claimant to be unphysiological and manufactured.
Dr Smith assessed a 0% WPI.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 29 September 2022 in support of the review application.[17]
[17] AD1 p 10.
The claimant notes that on page 16 of his certificate Medical Assessor Chan stated:
35.“Mr Ralevski had intermittent pain in his lumbar spine. At this examination he had no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular symptoms and he did not have signs of lumbar spine radiculopathy consistent with ection 6.138 of the Motor accident Guidelines: Permanent Impairment (MAGPI) of Dec 2020. The examination findings in his lumbar spine were consistent (sic) the descriptors for DRE 1, 0% WPI Lumbosacral Spine, table 72, page 110 of AMA 4”.”
Notwithstanding these findings the claimant notes that Medical Assessor Chan referring to the notes of Dr Ahmed referred to “tenderness on mid lumbar spines and paralumbar areas” and the findings of Dr Van Gelder on 8 September 2020 of “tenderness in the low back on movement and in the posterior superior iliac spine and sacroiliac area”.
The claimant also submits that the lumbar spine injury should have been categorised as DRE II as there are signs of injury without radiculopathy.
The claimant also submits there were inconsistencies in relation to the injuries to the left hand and left hip.
Dr Chan notes Dr Van Gelder concluded the nerve conduction test indicated the claimant had mild median nerve impairment at the left wrist but then concluded the claimant did not have median nerve dysfunction (carpal tunnel syndrome) in his left wrist.
The claimant provided submissions dated 19 January 2022 in respect of the WPI dispute.
Insurer’s submissions
The insurer provided submissions dated 19 October 2022.[18]
[18] AD2 p 1.
The insurer submits that Medical Assessor Chan considered the findings of Dr Ahmed and Dr van Gelder as to “tenderness” but came to an alternate result.
The insurer also submits that Medical Assessor Chan did not make any error as to the DRE category on assessment of the lumbar spine. The insurer notes that the claimant had no muscle guarding or spasm, no neurological impairment, no alteration of the structural integrity of the spine and no other significant clinical findings on examination. Accordingly, the most appropriate DRE category is DRE I.
In relation to the median nerve impairment at the left wrist the insurer submits there is no inconsistency by reference to the findings of Dr van Gelder. The insurer submits that Medical Assessor Chan made his own assessment and opined that the claimant did not have median nerve dysfunction of the left hand and, whether he had left hand carpal tunnel syndrome, it was not caused by the accident.
The insurer provided submissions dated 16 February 2022 in respect of the permanent impairment dispute.[19]
[19] AD2 p 12.
The insurer notes the claimant had pre-existing cervical spine osteoarthritis. The insurer notes at the time he assessed the claimant on 1 November 2019 he reported the claimant did not have any neurological signs except for sensory changes in the fingers of the right hand.
The insurer relies upon the report of Dr Anthony Smith dated 18 November 2021 who concluded the claimant sustained an aggravation to his pre-existing, cervical degenerative disease. Dr Smith was of the opinion the claimant should have recovered from the aggravation within six months. Furthermore, Dr Smith considered the claimant’s self-reported global weakness in all movements of the upper limbs to have been” unphysiological and manufactured” and that his presentation on assessment was inconsistent. Dr Smith assessed 0% WPI.
The insurer submits the claimant did not sustain any injury to the lumbar spine in the accident. The insurer notes the claimant did not report injury to the lumbar spine or back pain in the claim form and did not complain about lumbar spine pain to Dr van Gelder or to Dr Smith.
The insurer submits there is no evidence of injury to the left hip. It was not mentioned in the claim form, it was not referred to in the physiotherapy records or the Certificates of capacity. The claimant did not report any injury to the left hip to Dr Smith.
The insurer submits the numbness in the right hand is a symptom and not evidence of an acute injury suffered in the accident. The insurer submits any wrist dysfunction and/or carpal tunnel syndrome is unrelated to the accident.
The insurer also relies on the opinion of Dr Smith who found no sensory abnormality in either upper limb.
The insurer submits there is no evidence of injury to the left hand.
MEDICAL EXAMINATION
Mr Ralevski was examined by Medical Assessor Home at his Sydney rooms, with Medical Assessor Oates in attendance via Teams videoconference.
Past history
Mr Ralevski reports no prior history of neck, back or left hip complaints.
He recalls that he had suffered triggering of his left thumb for which he underwent a steroid injection in October 2018. He cannot recall any precipitating event or activity leading to the onset of those complaints. Following the accident, he experienced a recurrence of triggering in his left thumb for which he underwent a second corticosteroid injection administered in September 2019. This relieved the condition. There has been no further complaint of thumb triggering.
Details of the accident
Mr Ralevski states he was the unaccompanied seat-belted driver of a Honda Accord stationary on Cooper Road, waiting to enter the Hume Highway with three cars stationary in front. He recalls he was stopped behind a gap in the traffic to keep the road clear. He says there was a laneway on the left side of Cooper Road. A 4WD Jeep emerged from a laneway, turning right onto Cooper Road. He recalls the 4WD struck his bonnet with subsequent damage to the front bumper bar, worse on the right side.
Police and ambulance did not come to the scene of the accident. He recalls the driver of the other car drove across the road and parked. After exchanging details, he was able to drive his own car away. He recalls the onset of neck pain within several hours of the accident.
The following day he experienced further pain in his neck and lower back and a sensation of paraesthesia in the entire right arm.
He attended his GP two days later with a complaint of headaches, neck pain, right upper limb pain and paraesthesia.
He underwent X-rays of the cervical spine.
His GP, Dr Ahmed referred him for physical therapy. He recalls he attended for several months but could not recall the precise duration of his treatment. He has since attended five Medicare funded sessions of physiotherapy each year. He recalls transient symptom benefit following treatment.
He now also attends a Vietnamese masseur at approximately second monthly intervals. He experiences transient symptom benefit following massage treatment.
He confirms after the accident he underwent MRI scans of the cervical spine to investigate the right upper limb sensory symptoms. He was referred to a neurologist, Dr Hussan who performed Nerve Conduction Studies.
He attended Professor James Van Gelder, neurosurgeon on 1 November 2019. He confirms Professor Van Gelder reviewed his imaging, and at that stage, had not recommended surgical management. After further review on 8 September 2020, Professor Van Gelder recommended that he consider right carpal tunnel release surgery and to return if that did not improve his symptoms.
He says that he currently takes Paracetamol, four tablets daily, most days of the week. There is no other use of medication. There has been no other medical treatment directed toward his condition.
Current symptoms
Mr Ralevski states he experiences constant neck pain in variable severity. He describes the average intensity at 8-9 out of 10 on a Visual Analogue Scale. Pain is more severe on the right side. There is sometimes a “pulling” sensation in the right sided neck muscles. He describes radiation of pain to the top of the right shoulder present most of the time. There is sometimes radiation of pain to the proximal right arm. He describes further pain extending from the right elbow along the radial border of the right forearm toward the right hand. Sometimes the pain extends to all of the fingers. He describes frequent paraesthesia and numbness in the right hand. He says this involves all of his fingers but is more prominent at the index and middle digits.
He describes difficulty with the numbness in his right hand, but this does not prevent him from undertaking activities. He describes general weakness in the right upper limb.
He reports intermittent lower back pain which occurs with bending. Pain is felt in the midline in the lower back. He reports some pain with coughing and sneezing. There is no bladder or bowel dysfunction. He denies radiating pain into the lower extremities. There is sometimes numbness in the entire right foot from the ankle to the toes.
He reports further pain locally at the lateral aspect of the right hip and in the right buttock. There are no current complaints at the left hip or buttock.
He describes a lifting tolerance of 10 kilograms between two hands.
Activities of daily living
Mr Ralesvki is right hand dominant. He describes a sitting tolerance of 30 minutes; a standing tolerance of 30 minutes and he is then limited by general fatigue. There is no disability for crouching or kneeling. He performs stair climbing asymmetrically. His sleep pattern is disturbed by neck pain.
He is independent for activities of self-care.
Social history
Mr Ralevski lives in a town house. He has a live-out partner that comes over frequently, but he is able to undertake all domestic chores himself but performs these in a piecemeal fashion. He has changed the grass to a synthetic grass to reduce his maintenance.
He has not resumed previous active hobbies of playing social soccer, fishing and golf.
Vocational history
He retired from work as a Customer Service Officer for Qantas in approximately 2015.
Clinical examination
General presentation
Mr Ralevski is right-handed and of average build. He is aged 72 and has a height of 180cm and weight of 86kg (self-reported).
He stood erect and walked without a limp. He was able to stand up and walk on his heels and his toes.
Cervical spine (cervicothoracic)
He had a normal cervical spine curvature. There was no focal tenderness, muscle spasm or guarding in the cervical paravertebral muscles. There was dysmetria of active range of motion, with active flexion being three-quarters of normal range and extension one-quarter of normal range. There was also reduced range of movement in rotation and lateral flexion to the left compared to the right side. This finding was confirmed when movements were repeated. Right-sided rotation was two-thirds of normal range and left-sided one-half normal range. Lateral flexion to the right was two-thirds of normal and to the left was one-half normal.
There were non-verifiable radicular complaints in a C6 and C7 distribution affecting the right upper extremity.
Upper limb reflexes were brisk and symmetrical.
Power right equals left with some pain inhibition of grip strength in the right hand. Sensation was said to be reduced to light touch and pin prick over the right thumb, index, middle and entire ring fingers, and the whole of the right forearm and right upper arm in a glove and stocking distribution. Sensation in the left upper extremity was intact.
Upper arm girth; right 29.7cm, left 28.4cm. Forearm girth; right 28.1cm, left 27.7cm consistent with stated right hand dominance.
There was no finding of asymmetry of reflexes, muscle weakness or sensory loss anatomically localised to an appropriate spinal nerve root distribution, or muscle atrophy, hence there were no signs consistent with cervical radiculopathy present.
Lumbar spine (lumbosacral)
There was normal lumbar lordosis with no tenderness, no spasm or guarding in the paravertebral muscles of the lumbar spine.
Flexion and extension were both three-quarters of normal range, lateral flexion was three-quarters of normal range to the right and the left. There was no asymmetry of active range of movement in the lumbar spine.
The lower limb reflexes were brisk and symmetrical, and power in the lower limbs was equal bilateral in all myotomes. There was glove and stocking partial reduction of sensation to light touch and pin prick globally in the right lower extremity. Because this does not follow an appropriate spinal nerve root distribution, it is not considered to be a non-verifiable radicular complaint.
Straight leg raising was equal bilaterally at 60° with negative stretch test.
Thigh girth; right 47.2cm equal to the left. Leg girth; right 39.1cm, left 39.5cm.
There was no clinical finding of asymmetry of reflexes, muscle atrophy, muscle weakness or sensory loss anatomically localised to an appropriate spinal nerve root distribution, hence, no signs to make a diagnosis of lumbar radiculopathy.
Upper extremity
The active range of movement in the joints was measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 110° 130° Extension 50° 50° Adduction 40° 40° Abduction 90° 100° Internal Rotation 70° 60° External Rotation 70° 80°
Wrist
MovementsActive ROM Measured
RIGHTActive ROM Measured
LEFTDorsiflexion 60° 70° Volar flexion 55° 60° Radial deviation 20° 20° Ulnar deviation 35° 35°
Tinel sign was negative over the median nerve bilaterally at the wrists.
Phalen sign was negative bilaterally at the wrists.
There was full range of movement in right and left hands, and no triggering in the thumbs. There was a left thumb nodule on the flexor aspect present with local crepitus.
Lower extremity
There was no tenderness at the trochanter of the hip bilaterally.
Hip Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 105° 105° Extension No flexion contracture No flexion contracture Adduction 25° 25° Abduction 30° 40° Internal Rotation 20° 20° External Rotation 35° 40°
Comments on consistency
The claimant presented in a straightforward manner, with no evidence of embellishment of his clinical presentation. The Panel does not agree with Dr Smith.
The Panel examiners accepted his presentation was consistent with his complaints.
Summary of relevant radiological and other investigations
The following radiological and medical imaging was brought to the assessment:
· 6 July 2019 – X-ray cervical spine – no report. The Panel examiners found early degenerative changes at C4/5 and to a mild extent at C5/6, with bilateral foraminal narrowing at C4/5.
· 12 November 2019 – X-ray thoracic and lumbar spine – no report. There were mild degenerative changes at multiple levels in the lumbar spine.
· 13 August 2019 – MRI cervical spine – report on file.
· 15 September 2020 – cervical spine CT scan – report on file.
· 15 September 2020 – cervical spine MRI scan – report on file.
· 15 September 2020 – lumbar spine CT scan – report on file.
· 15 September 2020 – left hip X-ray and ultrasound – report on file.
· 25 February 2020 – nerve conduction study – Severe right carpal tunnel syndrome and mild left carpal tunnel syndrome.
The Panel Medical Assessor examined the imaging and agreed with the reports where such were available.
DIAGNOSIS AND CAUSATION
Cervical spine
Mr Ralevski has sustained a soft tissue injury to the cervical spine with exacerbation of pre-existing osteoarthritis with referred radicular symptoms of paraesthesia to the right upper limb/hand.
The Panel is satisfied the accident was a cause of this injury because neck pain and tenderness are documented in the first GP record of 28 June 2019, and the first physiotherapy record of 25 July 2019. There is no evidence of any prior neck symptoms or condition. Numbness into the fingers of the right hand was documented in the GP records of 25 July 2019 and 8 August 2019. There is no evidence of any prior right hand symptoms or condition.
Lumbar spine
Mr Ralevski has sustained a soft tissue injury to the lumbar spine.
The insurer submits the claimant did not sustain any injury to the lumbar spine in the accident. The insurer notes the claimant did not report injury to the lumbar spine or back pain in the claim form and did not complain about lumbar spine pain to Dr van Gelder or to Dr Smith.
However, the Panel notes Dr Ahmed reported tenderness to the lumbar area on 28 June 2019 and on 5 September 2019 Mr Beadle physiotherapist reported complaints of lower back pain. On 10 November 2019 Dr Ahmed reported Mr Ralevski wanted to include back pain in his MVA (motor vehicle accident) form. She reported tenderness on all spines especially lumbar and paralumbar areas and referred Mr Ralevski for an X-ray of the thoracolumbar spine.
There is no evidence of any prior lumbar symptoms and complaints and whilst it seems Mr Ralevski’s initial concerns focussed on his cervical spine the Panel is satisfied the soft tissue injury to the lumbar spine was caused by the accident.
Right hand soft tissue injury with carpal tunnel syndrome
Carpal tunnel syndrome is a constitutional condition generally related to repetitive use of the hand over a long period of time, especially in cold environments, resulting in swelling around the digital flexor tendons passing through the confined area of the carpal tunnel, with the swelling producing secondary compressive symptoms in the median nerve which also passes through the same fibrous tunnel. It is not medically plausible that a single soft tissue contusive injury to the flexor aspect of the wrist would result in a carpal tunnel syndrome.
The right hand/arm symptoms are more likely referred radicular symptoms from the cervical spine. The provocative clinical tests for carpal tunnel syndrome were negative bilaterally, and the pattern of reduced right upper limb sensation did not follow the median nerve distribution.
The Panel finds the accident was not a cause of the right carpal tunnel syndrome. The Panel finds the symptoms of paraesthesia to the right upper limb/hand are referred from the cervical spine.
Left hand – carpal tunnel syndrome
The accident was not a cause of this injury. Mr Ralevski did not complain of symptoms in the left hand and the diagnosis of carpal tunnel syndrome is not referred to in the medical evidence This claimed injury was not symptomatic and was not present on clinical examination by the Panel.
Dr van Gelder found no neurological signs in the arms other than the sensory changes in the right hand. He referred Mr Ralevski for neurophysiological studies. Dr van Gelder reported the neurophysiological studies showed carpal tunnel syndrome worse on the right side and suggested Mr Ralevski might benefit from carpal tunnel surgery.
However, the Panel considers the study finding of left carpal tunnel syndrome was coincidental. Neurophysiological studies are supportive of but not determinative of a carpal tunnel diagnosis. This condition is diagnosed clinically and there were no clinical findings pertaining to the left wrist or hand to support that diagnosis.
There was evidence of a prior unrelated left hand condition of trigger thumb treated by ultrasound guided cortisone injection on two occasions, before and after the accident.
Left hip – trochanteric bursitis, gluteus medius bursitis
The accident was not a cause of this injury. It is not referred to anywhere in the medical evidence. The claimant did not mention this condition, the area is not symptomatic, and the hip was found to be normal on examination.
This area was investigated by X-ray and ultrasound by Dr van Gelder after a complaint of low back pain radiating to the left inguinal region, the site of prior hernia repair. Whilst there was reportedly some bursal tenderness on probing in September 2020, this is no longer the case. The Panel considers the ultrasound findings are coincidental. The X-ray of the left hip showed mild age-related degenerative changes, which are present bilaterally.
FINDINGS
The Panel finds following injuries were caused by the accident:
· cervical spine – soft tissue injury with exacerbation of pre-existing osteoarthritis and referred symptoms to right upper extremity/hand, and
· lumbar spine – soft tissue injury.
The Panel finds the following injuries were not caused by the accident:
· right hand – soft tissue injury – carpal tunnel syndrome;
· left hand – carpal tunnel syndrome, and
· left hip – trochanteric bursitis, gluteus medius bursitis.
PERMANENT IMPAIRMENT
Cervical spine (cervicothoracic)
There was dysmetria of active range of motion and non-verifiable radicular complaints in right C6 and C7 distribution. There were no criteria present on clinical examination to justify a diagnosis of cervical radiculopathy. The two clinical differentiators present place the claimant in DRE cervicothoracic category II, giving 5% WPI in accordance with the AMA 4 Guides chapter 3 page 104.
Lumbar spine (lumbosacral)
There was no guarding, no asymmetry of active range of motion, and no non-verifiable radicular complaints. There was no evidence of lumbar radiculopathy on clinical examination. Symptoms are present. The presence of symptoms following an injury Is a clinical differentiator for DRE lumbosacral category I, giving 0% WPI in accordance with the AMA 4 Guides chapter 3 page 102.
Body Part or System AMA Guides/Guidelines References Permanent (YES/NO) Current %WPI %WPI from pre-existing OR subsequent causes %WPI due to motor accident Cervical spine AMA4 ch3 T.73 p.110, page 104 DRE II Yes 5 0 5 Lumbar spine AMA4 ch3 T.72 p.110, page 102 DRE I Yes 0 0 0
The combined impairment is 5% WPI.
There is no pre-existing or subsequent impairment.
There is no adjustment for the effects of treatment.
0
0
0