Russo v QBE Insurance (Australia) Limited
[2023] NSWPICMP 270
•15 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Russo v QBE Insurance (Australia) Limited [2023] NSWPICMP 270 |
| CLAIMANT: | Stephanie Russo |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 15 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 4 April 2017 when the vehicle lost control avoiding oil on roadway; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; discussion of non-verifiable radicular complaints; claimant’s arm symptoms not in a verified nerve root and did not accord with cervical spine pathology; loss of shoulder movement disproportionate to findings on MRI scan; inconsistency in movements on examination; restricted shoulder movement assessed by way of analogy; other body parts rated no assessable loss on examination findings; Held – claimant assessed at 2% permanent impairment; original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment The assessment made by the review panel under s 63(4) is as follows: The Panel confirms the certificate of Medical Assessor Woo dated 9 August 2022. |
REASONS
BACKGROUND
Ms Russo (the claimant) was injured in a motor accident on 4 April 2017. The accident occurred when Ms Russo exited the M4 motor way and noticed oil on the roadway.
Ms Russo swerved her vehicle to avoid the oil. In avoiding the oil, the claimant’s “tyre popped” and her vehicle “spun violently out of control” although it did not collide with any other object. [1][1] Insurer’s bundle, p 7.
The insurer is liable to pay Ms Russo any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the 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 MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Ms Russo claims that she suffered injury and impairment of a number body parts.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
MEDICAL ASSESSMENT SUBJECT TO REVIEW
Medical Assessor Woo provided a medical assessment certificate dated 9 August 2022 (the medical assessment certificate).[5]
[5] Claimant’s bundle, p 121.
The Medical Assessor found that the claimant sustained soft tissue injuries to various parts of the body and also had symptoms and signs of ulnar nerve neuritis related to impingement at the cubital tunnel. The Medical Assessor found that the latter condition was unrelated to the motor accident having never been reported up to July 2021.
The Medical Assessor assessed the impairment of the right shoulder at 6%. All other body parts were assessed at 0% or otherwise found to have resolved.
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[6]
[6] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (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.[7]
[7] Section 63(2B) of the MAC Act.
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[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[8] Section 63(3) of the MAC Act.
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.[9]
[9] 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 matter solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Cameron found that the claimant suffered a soft tissue injury to the head which had resolved. He noted that headaches are a symptom and not separately assessed.[12]
[12] Claimant’s bundle, p 152.
Medical Assessor Cameron also provided a combined certificate dated 20 February 2023 that the overall impairment was not greater than 10%.[13]
[13] Claimant’s bundle, p 157.
Medical Assessor Gliksman certified in March 2019 that the initial physiotherapy recommended by Dr McKenzie was reasonable and necessary. He noted that the symptoms corresponded to a radicular distribution in the upper thoracic region, dysesthesia in the right shoulder and generalised right parathoracic pain.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[14] In Raina v CIC Allianz Insurance Ltd[15] 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.”
[14] See s 3B(2) of the Civil Liability Act 2002.
[15] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction and supplementary medical reports after the Panel had convened.
We admit the further evidence filed by the parties in circumstances where neither party complied with our initial direction.
The claimant then filed a further report from Dr Dryson which was extremely late.
The insurer objected to the report for the determination of the admissibility and not be made by the President’s delegate. No legal submission was made as to why the admissibility of any document lays outside the purview of the Panel.
The submission is inconsistent with rule 128 of the Personal Injury Commission Rules that the Panel determines its own procedure. There is no legislative basis for the insurer submission. The acceptance of such a submission would otherwise produce the absurd result that the Panel is restricted in its function by the exercise of a discretion of another decision maker.
The further report was served unnecessarily late and in complete disregard of our initial direction. If there was any prejudice to the insurer that the report would have been rejected. However, having considered the further report, the doctor only confirmed his previous findings.
We are not bound by Dr Dryson’s opinion and indeed are required to form our own opinion. In our view the further report added nothing further or different to the case as presented as it was an updated opinion from Dr Dryson which confirmed his previous opinion.
As we have concluded that the claimant is below the threshold, we admit the report as there is no prejudice to the insurer.
Pre-accident material
A clinical note dated 2 August 2013 referred to a motor accident with neck and thoracic tenderness.[16] A note dated 17 February 2014 referred to pain in the right shoulder for six months post motor accident radiating to the right hand.[17]
[16] Claimant’s bundle, p 23.
[17] Insurer’s bundle, p 202.
The clinical notes of the general practitioner (GP) prior to the motor accident otherwise show no relevant symptoms.[18]
[18] Claimant’s bundle, pp 20-25, 45-52.
General practitioner
The GP record for 5 April 2017 referred to the motor accident and noted mild neck pain with frontal headache.[19] On 14 June 2017 the GP noted “whiplash” and the claimant would like to see a physiotherapist.[20]
[19] Insurer’s bundle, p 201.
[20] Insurer’s bundle, p 200.
A clinical note dated 22 August 2017 noted ongoing shoulder pain and referral for physiotherapy.[21]
[21] Insurer’s bundle, p 200.
The certificate dated 22 August 2017 referred to whiplash injury resulting in pain to the right shoulder.[22]
[22] Insurer’s bundle, p 11.
On 9 February 2018 the GP referred to ongoing painful right shoulder since the motor accident.[23]
[23] Insurer’s bundle, p 199.
The X-ray of the right shoulder dated 13 February 2018 showed no abnormal pathology. The ultrasound of the same date showed mild bursitis.[24]
[24] Insurer’s bundle, pp 214-5.
On 27 August 2018 the GP noted upper back pain between the scapula and right shoulder bursitis with a referral for physiotherapy.[25]
[25] Insurer’s bundle, p 318.
Physiotherapy records refer to treatment to the right shoulder and neck for the period from September 2018 to August 2019.[26]
[26] Insurer’s bundle, pp 170-193.
A certificate dated 18 February 2021 referred to neck, right shoulder and upper thoracic injury.[27]
[27] Insurer’s bundle, p 118.
A report from Dr Hany Abdalla dated 22 July 2022 stated that treatment since 18 February 2021 for head, right shoulder, neck, upper back pain and depressive symptoms.[28] The doctor opined that the symptoms were caused by the motor accident.
[28] Claimant’s bundle, p 161.
A report from Mr Hayward, chiropractor undated stated that he had treated the claimant for 14 months for cervical spine, shoulder and thoracic spine pain.[29] That treatment commenced in February 2020.[30]
[29] Claimant’s bundle, p 60.
[30] Claimant’s bundle, p 61.
Radiology
An MRI scan of the cervical spine dated 13 April 2021 showed degenerative anterolisthesis at C4/5 and broad-based disc osteophyte at C5/6 contacting the cord.[31]
[31] Claimant’s bundle, p 18.
Statement evidence
Ms Russo provided a statement dated 2 August 2021[32] noting that there was a prior statement dated 29 December 2019. The earlier statement was not attached. The claimant stated that there was constant severe neck pain and suffer headaches most day. Ms Russo stated that she had pain in the upper back, the top and back of both shoulders and some pain in the right shoulder joint. There was also low back pain and minor problems with the knees.
[32] Claimant’s bundle, p 110.
Ms Russo stated that she was very active prior to the motor accident, regularly going to the gym and participating in the Bay Run three times a week.
In relation to the car accident in August 2013, Ms Russo stated that the neck, right shoulder and arm symptoms lasted between six to twelve months, and she did not have any problems “for at least two to three years before” the motor accident.
The claimant had regular chiropractic treatment which she did not have prior to the motor accident.
A quotation for the repairs of the motor vehicle largely to the undercarriage, were in the order of $13,000.[33]
[33] Insurer’s bundle, p 47.
Claim form
The claim form was completed by the claimant on 24 August 2017[34] and referred to the motor accident causing injuries to the neck, back, right shoulder, right hand, wrist and elbow, bruises to knees, tailbone, headaches and psychological symptoms. The claimant noted that she had a right shoulder injury three years previously with no claim made.
[34] Insurer’s bundle, p 3.
Qualified opinions
Dr John Davis provided a report dated 10 September 2020.[35] The doctor noted neck pain, radiating pain from the neck into the right trapezius, right shoulder pain and pain between the shoulder blades.
[35] Insurer’s bundle, p 13.
Dr John Machart was qualified by the insurer and provided a report dated 23 April 2020.[36] The doctor noted full neck movement with no sensory loss. There was periodic numbness in the little and ring fingers.
[36] Insurer’s bundle, p 20.
Dr Machart noted diagnostic features of internal impingement in the right shoulder, recommended an MRI scan and opined that the condition had not stabilised.
In a further report dated 2 June 2021,[37] Dr Machart noted little change in the claimant’s condition. He diagnosed soft tissue injury to the cervico-brachia region, predominantly in the right shoulder with an element of chronic pain. Examination was restricted due to guarding although the doctor did not find instability. Pain was noted in all directions of shoulder movement.
[37] Insurer’s bundle, p 25.
Dr Machart assessed the right upper extremity at 3% including an allowance for neurological injury. He assessed the cervical spine at DRE Category 1 (0%).[38]
[38] Insurer’s bundle, p 32.
Dr Andrew Keller, occupational physician, was qualified by the insurer and provided a report dated 5 April 2023.[39]
[39] Insurer’s further bundle, p 6.
Dr Keller noted that it was not possible for him to state whether the claimant had pain as this was subjective. However, he observed on examination that the cervical spine moved fully and normally and there were no signs of radiculopathy.
Dr Keller observed there was restriction of motion in the right shoulder which appeared better than was previously assessed by other doctors. There was no winning of the right scapular observed in his examination. He noted it was possible that the claimant presented with persisting shoulder pain, restricted reaching and lifting with the right arm although it was unclear how this was caused by the motor accident.
Dr Keller diagnosed right shoulder girdle dysfunction and noted no clear diagnosis of any cervical spine injury. The doctor made no assessment of permanent impairment noting that in the absence of formal diagnosis there could not be an assessment of right shoulder impairment.
Dr Evan Dryson, occupational physician, was qualified by the claimant and provided a report dated 13 July 2021.[40] The doctor opined that the motor accident caused pathology in the cervical spine which has caused some restriction in range of movement of the right shoulder and soft tissue injuries to the lumbar and thoracic spine. Overall impairment was assessed at 17%.
[40] Claimant’s bundle, p 8.
Dr Zbigniew Poplawski, was qualified by the claimant and provided a report dated
27 April 2023.[41] The doctor noted that the claimant developed pain in the right shoulder but opined that it was unclear whether the symptoms related to a shoulder injury or whether they related to the cervical spine. He opined that the MRI scan of the cervical spine undertaken in April 2021 showed broad disc osteophyte with contact on the spinal cord and damage to the C5/6 scan and minor canal stenosis. The MRI scan of the right shoulder was essentially normal.[41] Claimant’s further bundle, p 1.
The doctor noted that the claimant developed low back pain with radiation down the right leg which had essentially settled. Ms Russo also knocked her head suffering a bruise over the forehead which had subsequently settled.
The claimant also developed pain in both knees, left having settled completely, with the right side having anterior discomfort from time to time.
Dr Poplawski opined that the claimant suffered injuries to the spine and right shoulder and that the injuries to the knees had essentially settled. The claimant continued with significant right shoulder pain, cervical pain and right sided radiculopathy, which was essentially similar to his last assessment, normal range of motion in both directions in the thoracic spine damage to the C5/6 disc.
The claimant’s filed a further report of Dr Dryson dated 1 June 2023 relating to an examination on 17 May 2023.
The doctor noted in his prior assessment in April 2021 that he diagnosed:
(a) aggravation of cervical spondylosis with non-verified radiculopathy;
(b) painful restriction of range of movement of the right shoulder secondary to referred pain from neck injury, and
(c) soft tissue injury in the lumbar spine.
On examination the doctor noted restricted range of motion in the right shoulder, normal range of motion in the thoracic spine, loss of lateral flexion in the lumbar spine which represent an improvement since the last assessment, global weakness in the right arm, normal neurological examination in the lower limbs.
Dr Dryson confirmed his diagnosis from the previous assessments.
SUBMISSIONS
Insurer’s submissions dated 13 August 2021
The insurer submitted that it relied upon the reports of Dr Machart and that the claimant did not overcome the relevant threshold.
The insurer referred to a prior motor vehicle accident in about 2013 and noted;
(a) complaints of intermittent numbness affecting the right-hand particularly the fourth and fifth fingers, stiffness of moving her head, and pain in the mid dorsal region and attendance on 7 August 2013;
(b) complaints of continuing right shoulder pain and symptoms radiating to the right-hand on 17 February 2014 and for referral to a physiotherapist;
(c) history of prior provided to Medical Assessor Gliksman in a report dated
10 March 2019 that the prior accident did not involve similar injuries to what she was currently suffering;(d) history provided to Dr Barold that symptoms in respect of the prior motor accident resolved over the ensuing two weeks, and
(e) claimant’s statement dated 29 December 2019 that these wrist symptoms resolved over six or so months.
The insurer noted that the claimant did not require the assistance of ambulance officers and did not present herself to hospital. It noted the initial history of the GP on the day following the subject accident of mild neck pain. The claimant presented to her GP a further 20 occasions between 9 May 2017 and 8 February 2019. During this period there was only three accident related complaints on 14 June 2017, on 22 August 2017 (whiplash injury giving rise to right shoulder pain) and on 9 February 2018 (complaint of right shoulder pain and referral for ultrasound an X-ray).
The clinical notes dated May 2018 reported that the claimant was completing high intensity interval training. She gave birth to her son on in the latter part of 2019.
In respect of the lumbar spine, the insurer noted that in March 2019 Medical Assessor Gliksman found full range of motion, Dr Barold in October 2019 noted the claimant denied any lower back complaints. The statement dated 29 December 2019 stated that the lumbar condition had resolved and there was no complaint of back pain to Dr Machart on each occasion he assessed the claimant.
The insurer noted that the complaint of radicular symptoms to Dr Dryson from the lumbar spine were the first complaint of such symptoms following the accident.
The insurer noted that there was no assessment of impairment of the thoracic spine.
In respect of the cervical spine assessment, the insurer referred to the following materials:
(a) Medical Assessor Gliksman in March 2019 noted normal lordosis, no guarding and flexion and extension were 80% for range on each side;
(b) there were no complaints of cervical spine symptoms when examined by
Dr Barold in October 2019;(c) Dr Machart noted full movements and assessed impairment of 0%, and
(d) in every 2021, Dr Abdallah noted findings consistent with those of Dr Machart.
In respect of the right shoulder the insurer noted:
(a) in October 2019 there was full range of motion of both shoulders and no wasting. In September 2020 Dr Barold then noted tenderness over the shoulder joints;
(b) In March 2019 Medical Assessor Gliksman noted the shoulders ranges of motion were symmetrical, and
(c) the X-ray of the right shoulder dated 13 February 2018 did not reveal any normal pathology. An ultrasound of the same day revealed mild thickening of subdeltoid bursa with bunching and discomfort on abduction with no rotator cuff pathology. The MRI scan and was clearly before Dr Dryson who noted that the scan showed a normal examination with no evidence of subacromial bursitis.
The insurer submitted that there was a substantial decrease in range of motion when the claimant presented to Dr Dryson in July 2021 when compared with the examination findings of Dr Machart in April 2020 and Dr Barold in September 2020. It is submitted that the findings of Dr Machart and Dr Barold were consistent with a normal MRI scan of the right shoulder on 15 April 2021.
Insurer’s submissions dated 12 September 2022[42]
[42] Insurer’s bundle, p 1.
These submissions were filed opposing the application to review the Medical Assessment noting that the submissions only addressed the assessment of the cervical spine.
The insurer submitted that Medical Assessor Woo did not attribute the non-verifiable radicular complaints to the motor accident and found that they were due to impingement at the cubital tunnel.
The insurer submitted that the Medical Assessor did not find dysmetria and found symmetrical movement. The insurer otherwise referred to the opinions expressed by
Dr Machart of 0% impairment with no dysmetria and Medical Assessor Gliksman who observed normal movement.
Insurer’s submissions dated 22 May 2023[43]
[43] Insurer’s further bundle, p 1.
The insurer advised that it did not accept the assessment of Medical Assessor Woo with respect to the right shoulder but otherwise accepted the assessments of the remaining body parts.
Claimant’s submissions dated 20 August 2021[44]
[44] Claimant’s bundle, p 105.
The claimant referred to the prior clinical entries on 7 August 2013 and 17 February 2014 and noted that the claimant addressed this in her statement dated 29 December 2019. The claimant did not lodge a claim. The notes show that no X-ray of the cervical spine was obtained, and any cervical spine condition had resolved within a short period.
The MRI scan of the cervical spine dated 13 April 2021 showed “significant pathology”. The temporal proximity of complaints and consistent refractory complaints supported an unbroken chain of causation between the motor accident and any impairment.
The claimant submitted that there is no objective evidence of pre-existing symptomatic permanent impairment at the time of the motor accident.
The claimant referred to the consultation with the GP on 5 April 2017 and submitted that the absence of an ambulance attendance was a red herring when all of the evidence is considered.
The claimant noted that she received treatment from her physiotherapist and chiropractor and the infrequent complaints to the GP “is another red herring submission” by the insurer. Further, consultations with the GP on 20 May 2019, 28 July 2020, 13 October 2020 and
18 February 2021 supported ongoing neck, right shoulder and upper back complaints.The claimant referred to the clinical entry dated 22 August 2017 of “ongoing shoulder pain” and submitted that this meant that the claimant had been experiencing shoulder pain prior to that time. Further, the shoulder pain being referred pain form the neck is a plausible explanation for the delay in onset.
The claimant otherwise denied paragraph 4(c) of the insurer’s submissions which she submitted were made without reference or citation and was otherwise disputed.
Claimant’s submissions undated[45]
[45] Claimant’s bundle, p 143.
These submissions were filed seeking a review of the Medical Assessment. The claimant submitted that the findings by Medical Assessor Woo showed non-uniform loss of motion in the cervical spine and non-verifiable radiculopathy which meant that the claimant should have been assessed as DRE Category II.
RE-EXAMINATION
Ms Russo was examined by Medical Assessor Stubbs on 2 June 2023. The examination report is as follows:
“History: at the time of the motor vehicle accident Ms Russo was well. She ran a laser hair removal clinic in the city and travelled from her home to work by car. She had completed year 12 at school and studied a course in business administration. The bitter prior motor vehicle accident in August 2013. She had treatment for neck spine injury from the general practitioner but that resolve fully. As I understand was the at fault driver.
On 4 April 2017 she was driving to work in her 2006 Mercedes. She was in the M5 tunnel when she ran over some debris which he believes fell off a truck preceding her. She skidded on oil patch but did not lose control of the car and did not suffer any secondary impacts. She believed this was on oil in a container that fell off the back of the truck. There was no external damage to the car but apparently extensive repairs required to the suspension. The car has since been sold. Ms Russo did not report the accident to the police.
She attended local medical officer and was sent for both physiotherapy and chiropractic treatment but she did not attend regularly and found that both types of treatment aggravated her neck and shoulder pain. She also saw a naturopath. The physiotherapy, chiropractic and in particular the naturopath reports (not available on the portal). She was asked why these are not provided and replied that she thought it was the responsibility of the insurer to have done so. Period she was asked why it was not September 2018 (17 months after the accident) that she first saw Patricia Issa a physiotherapist and not until February 2020 that she first saw her chiropractor three years after the accident. She thought it was earlier than this course She has a feeling that her head does not sit properly on her shoulders. There is pain in arms especially at night. She takes over-the-counter analgesic medications as required. (The first GP report that refers to shoulder pains is not till 19 weeks after the accident and the first time the right shoulder is identified is 10 months after the accident. She is noted to have a painful arc syndrome at that time)
History since the motor accident. She continues to work on laser hair removal from her home for a total of 15 to 20 hours per week. Ms Russo was asked about her statement of 2 August 2021 and agrees that the hours estimated and that, six hours a day four days a week are correct She has closed commercial premises she formally used and no longer employs the two other people who worked for her. She is married and a husband is a self-employed plumber. They live in a duplex unit in Guildford. She has two children the youngest is just 12 months old and is not yet walking. She requires considerable manual handling. She no longer has a car, but a husband has a utility for work and Mercedes which she has free access to. She will drive this car locally for instance when she takes her children to childcare. She does not go to a gymnasium and has not been advised about self-directed exercise programs. She is effectively having no further care.
Ms Russo is a married woman 157 cm tall and 55 kg in weight. Unfortunately, she was wearing black opaque tights and a singlet. This limited the amount of exposure that could be achieved in the clinical examination.
General observations she is well presented, as a normal posture and moves about freely. She can tip toe and heel toe walk and hop on either leg. She could climb onto and off the examination couch without assistance. She attended the examination alone having travelled on from her home.
Cervical spine
There is complaint of right sided neck pain in the trapezial region with movement of side bending to left three quarters normal range with complaint of tightness in the right scapular. Flexion and extension are full. Side bending to the right is full. Rotation right is normal. Rotation left elicits complaint of pain in the right scapular region at three quarters normal range without guarding or spasm Girth of the upper limbs and lower limbs arms and forearms are right equals left and clinical power all motor groups with the elbows by the side is 5/5. Reflexes are present and symmetrical but not easy to elicit. There is diffuse complaint of pain radiating down the lateral side of the arm. Sensory examination shows no dermatomal sensory loss. Tension tests are negative including traction compression and Valsalva manoeuvre neutral head posture. Sperling’s test is negative as is the brachial stretch test. The side bending left voluntarily restricted this is because of scapular pain not shoulder pain or reflex muscle guarding or spasm in the cervical spine.
There is no dysmetria, guarding or muscle spasm in the cervical spine.
Upper limbs:
Left Right Flexion 180 90, 120 70 Extension 60 60 Abduction 180 70, 60, 80 Adduction 40 40 External rotation 90 90 Internal rotation 90 90 Arms behind back T12 lumbosacral
Power with the arms by the side is 5/5. Lift off test is negative. There is diffuse pain but no impingement with passive rotation and impingement tests. There is tenderness over the biceps groove on the right. There is no wasting of the rotator cuff. The trapezius is tender to light pressure on the right but not tender on the left to firm pressure. There is no winging of the scapular but there is some disorganisation of scapulo- thoracic rotation with early movement rather the late movement. There may be a pain source in the shoulder but not to the extent that range of motion can be relied on for WPI assessment.
Elbows hands and wrists have full movement and normal sensory mapping. Clinical power is 5/5.
Thoracic and lumbar spine: flexion is fingertips to mid-shin is, side bending is to the head of the fibula right equals left. Rotation of the pelvis and trunk is mildly restricted to the right principally because of limitations in rotation of the cervical spine. Sensory mapping cannot be performed due to clothing. Power is noted be 5/5 the toes are down going sensation in the foot and toes of each side. There is no apparent wasting though clothing limits measuring approximately distal from the patella. Toes are down going – Babinski sign is negative.
There is no guarding, dysmetria or muscle spasm in either the thoracic or lumbar spines.
Hips flex to 150°, knees to 150° both joints are mobile and stable as are the ankles and feet. There is retro patella tenderness but no crepitus in both knees. Straight leg raising sitting fully slumped is 90° of knee extension. Straight leg raising supine shows some proximal distal hamstrings tightening in that knee extension cannot be achieved at 90° of hip flexion. Ankle dorsiflexion does not increase pain. The traction signs are negative.
The clinical examination is normal except for the findings of tenderness over the bicipital groove and moderate tenderness of the right trapezius. Combined with painful restrictions without spasm or guarding of rotation and side bending of the cervical spine to the left. There are no abnormal neurological findings.
The variable and limited range of motion of the right shoulder was pointed out to
Ms Russo who said that this causes pain in the anterior deltoid/bicipital groove on the right-hand side.
There are no imaging studies available for review. Dr Dryson in an IME for the claimant notes that an MRI cervical spine was not performed until 13 April 2021. He also references MRI of the right shoulder of 13 April 2021 as not showing any abnormality though a prior study (US?) of 13 February 2018 reported subacromial bursitis.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[46] and Insurance Australia Ltd v Marsh.[47]
[46] [2021] NSWCA 287 at [40], [41] and [45].
[47] [2022] NSWCA 31 at [11], [21], [64].
We are not required to agree with a particular doctor qualified by the parties. In part, the difference is explained by the examination findings accepted by the Panel, in this matter undertaken by Medical Assessor Stubbs. We otherwise note that there is a substantial divergence of assessments of doctors qualified by the parties.
In respect of the right shoulder, there is no pathology that adequately explains the complaints of restricted movement. Dr Dryson’s assessment was not based on discrete pathology in the right shoulder but due to referred pain from the neck.
Cervical spine
The claimant’s complaint of neck injury which is supported by her contemporaneous complaint of neck pain recorded by various medical practitioners and recorded in the claim form.
Verifiable radiculopathy requires a finding of two objective clinical signs defined in cl 6.138 of the Guidelines. These were not present in the recent medical examination.
Non-verifiable radicular complaints[48] is a basis for assessment as DRE Category II and is defined as:[49]
“Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”
[48] Table 6.7 of the Guidelines
[49] Table 6.8 of the Guidelines.
The examination by Medical Assessor Stubbs did not show non-verifiable radicular complaints as the arm symptoms were not in a specific nerve root.
We otherwise find the opinion of Dr Dryson unsatisfactory. His recent opinion that there were non-verifiable signs in all dermatomes does not accord with the cervical spine pathology which only showed some relevant abnormality at the C5/6 level.
The examination findings of Medical Assessor Stubbs were non-dermatomal complaints in the right upper limb and are not “non-verifiable radiculopathy”.
Medical Assessor Stubbs recorded symptoms in the cervical spine but no signs that would justify a rating of DRE Category II. The cervical spine is therefore assessed at DRE Category I.
Right shoulder
The limitation of the right shoulder did not appear to be secondary due to pain arising from the cervical spine. The loss of shoulder movement was disproportionate to what would typically be expected in a person with a soft tissue injury to the cervical spine with no right shoulder pathology reported in the MRI scan.[50] The earlier ultrasound only showed bursitis.
[50] This is the recorded in the report of Dr Dryson.
There was inconsistency of movement recorded by Medical Assessor Stubbs when assessing range of movement.[51]
[51] Cl 6.41 of the Guidelines.
As the insurer otherwise noted, there is variable discrepancies over time in right shoulder movement.
The claimant is therefore assessed by way of analogy.[52] An analogous condition would be mild crepitation of the right AC joint giving 10% joint impairment[53] which is multiplied by 15%[54] to obtain 1.5% permanent impairment which is rounded up to 2% WPI.
[52] Clause 6.24 of the Guidelines.
[53] AMA 4, Table 19
[54] AMA 4, Table 18
Thoracic spine
There was no assessable impairment of the thoracic spine from the examination findings of Medical Assessor Stubbs.
As the insurer correctly noted, no doctor found an assessable impairment of the thoracic spine.
Lumbar spine
There was an absence of lower back complaint as opposed to upper back (thoracic) symptoms following the motor accident including an absence of physiotherapy and chiropractic treatment up until 2020.[55]
[55] See [44] to [47].
The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[56]
[56] [2016] NSWCA 229 at [64]-[66].
We otherwise note that the motor accident did not involve a collision and the suggestion of how there could be injury to the lumbar spine is unclear.
We otherwise note that the medical assessment by Medical Assessor Stubbs did not show radiculopathy or non-verifiable radicular signs. The examination otherwise did not provide any basis for the claimant to be assessed at DRE Category II for the lumbar spine.
Other body parts
The other body parts rated no assessable loss in the examination findings of Medical Assessor Stubbs. This is consistent with the findings of the original Medical Assessor.
Pre-existing or subsequent injuries causing impairment
Clause 6.31 of the Guidelines requires a deduction for “pre-existing impairment”. There is no basis to make any deduction for any pre-existing condition[57] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” in the shoulders.
[57] Clauses 6.31 of the Guidelines.
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[58] concerning the issue of onus in establishing a deduction for any pre-existing condition.
[58] [2022] NSWPICMP 66 at [118]-[120].
The claimant had previously complained of neck and shoulder problems. Relevantly there is an absence of clinical notes after March 2014 of shoulder and/or cervical spine symptoms. The Panel is not satisfied there was pre-existing impairment at the time of the motor accident.
Permanent impairment
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
CONCLUSION
Whilst our reasons differ from those provided by Medical Assessor Woo, we have arrived at the same conclusion that the degree of impairment caused by the motor accident is not greater than 10%. The Panel have reached the conclusion that the impairment is assessed at 2%. Accordingly, the medical assessment is confirmed.
0
5
0