Salucci v CIC Allianz Insurance Limited

[2024] NSWPICMP 571

DETERMINATION OF REVIEW PANEL

CITATION:

Salucci v CIC Allianz Insurance Limited [2024] NSWPICMP 571

CLAIMANT:

Aldo Salucci

INSURER:

CIC Allianz

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Rhys Gray

DATE OF DECISION:

16 August 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to extent of whole person impairment arising from accident-related injuries; claimant was driving on a highway when the insured van suddenly appeared on his left and heavily impacted the left-hand side of the claimant’s vehicle; force of impact caused the claimant to lose control; the claimant’s vehicle crossed over the median strip into incoming traffic; claimant says that his body was violently jolted because of both impacts and his left leg smashed against the centre console; claimant says that his right elbow smashed into the car door, and he felt pain in his neck, back, both shoulders, hips and both legs, particularly on the left side; insurer wholly admitted liability for the claim; Held – Medical Review Panel not satisfied as to causation of injuries to left hip and lower extremity; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the Certificate dated 16 September 2022 and issues a new Certificate determining that:

(a)   the following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

(i)    mid-back/thoracic spine – soft tissue injury, and

(ii)    low back/lumbar spine – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

1. Aldo Salucci (the claimant) was driving along the Pacific Highway at Asquith on 12 May 2017 at about 2.00pm. The claimant was wearing a seatbelt. There were no other passengers in his vehicle. The claimant says that he was travelling about 60kmph when the insured van suddenly appeared on his left and heavily impacted the left-hand side of the claimant’s vehicle. The force of the impact caused the claimant to lose control. His vehicle crossed over the median strip into incoming traffic. The claimant managed to regain control of his vehicle and drive it back onto the correct side of the carriage way. The insured van apparently pulled out from the kerb.

2. The claimant says that his body was violently jolted because of both impacts. His left leg smashed against the centre console with such force that the console was damaged. He says that his right elbow smashed into the car door. When his vehicle came to a halt, the claimant saw that both of his left passenger doors had sprung open in the collision and could not be closed. The front bumper bar of the insured van wrapped around its front tyres. The claimant says that he felt pain in his neck, back, both shoulders, hips and both legs, particularly on the left side.

3. CIC – Allianz (the insurer) indemnified the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages under the Motor Accidents Compensation Act 1999 (the Act). The insurer wholly admitted liability for the claim.

4. The issue in dispute is the degree of permanent impairment that has resulted from the claimant’s physical injuries caused by the accident.

5. A differently constituted Review Panel previously revoked Medical Assessor Preston’s certificate and issued a replacement certificate finding 24% whole person impairment. That certificate in turn was quashed by Acting Justice Schmidt in the Supreme Court upon the insurer’s appeal. That was because the Review Panel misconceived its statutory task by not assessing afresh all of the injuries that had been referred to it for assessment. The previous Review Panel did not approach the matter upon the basis that causation was a live issue in relation to all of the referred injuries.

6. For present purposes, the Review Panel does not take into account any of the findings and reasons of the previous Review Panel, and must re-assess all of the referred injuries afresh, in accordance with law, as the Supreme Court has directed.

ASSESSMENT UNDER REVIEW

1. The claimant was referred for assessment by Medical Assessor Sally Preston who certified on 16 September 2022 as follows:

   “The following injuries caused by the motor accident give rise to a permanent impairment of 5% WPI and IS NOT GREATER THAN 10%:

   ·Mid-back/thoracic spine – soft tissue injury.

   ·Low back/lumbar spine – aggravation of degenerative change, non-verifiable radicular complaints.

   ·Left hip – aggravation of underlaying osteoarthritis.”

   Medical Assessor Preston found 5% whole person impairment for the lumbar spine and 0% whole person impairment for both the thoracic spine and left hip. Medical Assessor Preston did not make any adjustment for pre-existing/subsequent impairment, apportionment or treatment affects.

2. Medical Assessor Preston found that the following injuries WERE NOT caused by the motor accident:

   ·        neck/cervical spine – soft tissue injuries;

   ·        left leg – soft tissue injuries;

   ·        left foot – soft tissue injuries;

   ·        right elbow – soft tissue injuries, and

   ·        right hand – radiculopathy.

   Although they were Medical Assessor Preston’s findings, they did not form part of her certificate. Those findings are not binding upon the Review Panel which must decide causation of, and permanent impairment arising from, all of the referred injuries.

3. Medical Assessor Preston noted that the claimant was involved in a previous motor vehicle accident associated with the development of a severe whiplash injury. When assessed by
   Dr Dixon in August 1999, the claimant was complaining of neck and right-hand paraesthesia. Medical Assessor Preston notes that, upon the claimant’s initial medical review, following the subject motor accident, the claimant presented with upper, low back and leg pain. Medical Assessor Preston stated as follows:

   “Aggravation of his neck and right-hand paraesthesia symptoms related to the motor vehicle accident in May 2017 is not confirmed. He does not have definite features of a radiculopathy in his right upper limb on examination today.”

   As to the low back and left leg, the claimant reported to Medical Assessor Preston that his symptoms had persisted to the present time.

4. Medical Assessor Preston records that nerve conduction studies suggested a mild L5 radiculopathy, but neurological examination by his general practitioner (GP), shortly after the accident, was reported as normal with a negative straight leg raise. Medical Assessor Preston found that the claimant did not fulfil criteria for a diagnosis of a radiculopathy in his left leg. Medical Assessor Preston found that symptoms in the claimant’s left leg and left foot are best described as due to non-verifiable radicular complaints. No separate soft tissue injuries to the left leg and left foot were identified. Hence finding they were not caused by the motor accident.

5. As to the right elbow, Medical Assessor Preston noted the claimant’s report of hitting his right elbow on the car door, “but there is no initial complaint of symptoms in his right elbow”. Medical Assessor Preston found that nerve conduction studies, more than two years after the accident, were normal. In Medical Assessor Preston’s opinion, an ulnar neuropathy had not been confirmed, despite the appearance of the ulnar nerve sub-laxing on ultrasound. Medical Assessor Preston did not accept a causal relationship between the motor accident and the claimant’s right elbow symptoms. Medical Assessor Preston stated that sensory disturbance in the claimant’s right hand is not consistent with a radiculopathy nor an ulnar nerve injury. Those findings are not binding upon the Review Panel, which must exercise its own clinical judgment and expertise, in determining causation.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (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.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]

   [3] Section 7.26(6) of the MAI Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.

2. In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] [2022] NSWSC 372.

   “…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:

   ‘Causation means that a physical, chemical or biological 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 judgment.

   6.7There 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 REVIEW

1. The claimant sought a review of Medical Assessor Preston’s certificate on the basis that the assessment was incorrect, within the meaning of s 63 of the Act, in a material respect. The claimant also sought an extension of time in which to make the application as it was lodged outside the 28-day timeframe required under s 63(7)(a) of the Act. The President’s delegate was satisfied that the application had been made in exceptional circumstance and that to refuse the application would work demonstrable and substantial injustice. Accordingly, the application for extension of time was granted.

2. it was submitted by the claimant that Medical Assessor Preston failed to comply with the requirements of both the AMA 4 Guides and the Motor Accident Guidelines when undertaking her assessment, with particular reference to the issues of causation, pre-existing impairment and the assessment of the claimant’s post-accident impairment, in relation to the claimant’s cervical spine, upper limbs, bilateral shoulder, hip and lower limb injuries and impairments;

3. it was submitted Medical Assessor Preston made findings that are contradictory to the claimant’s treating evidence, especially in relation to the findings and diagnosis of the claimant’s treating neurosurgeon, Dr Jonathan Curtis;

4. it was submitted that Medical Assessor Preston failed to apply the principles stated in the decision of Nguyen v MAA of NSW and Zurich Australia Insurance Limited[5] which establishes that, for a causal connection to be established, there does not need to be a “primary and isolated” injury to a shoulder, as there may be an indirect connection, from a frank injury to the neck;

   [5] [2011] NSWSC 351.

5. it was submitted for the claimant that there is objective evidence of demonstrable significant pathology in the claimant’s cervical spine, as demonstrated by the MRI scan dated 29 April 2020, which shows right C7 nerve root impingement. It was submitted this provides an objective basis for a DRE category II finding with regard to the claimant’s cervical spine impairment, and also provides an objective basis for the claimant’s ongoing radicular bilateral upper limb impairment complaints;

6. the claimant took issue with Medical Assessor Preston’s apparent failure to conduct any of her measurements, regarding the claimant’s loss of range of motion, with the use of a goniometer. It is suggested that her failure so to do was a reason that her findings are substantially discordant with those of the claimant’s treatment provider and qualified medico-legal assessors;

7. it was submitted for the claimant that, to the extent that Medical Assessor Preston took into account the claimant’s pre-existing medical history, in relation to the cervical spine and right upper limb, there was a failure to apply objective evidence of impairment that pre-dated the subject accident, contrary to the requirements prescribed by clauses 1.6 and 1.7 of the Permanent Impairment Guidelines, such that injury suffered in 1999 should have been ignored;

8. it was submitted that the claimant’s post-accident treating medical records demonstrate evidence of injury and ongoing consistent complaints of pain and restricted movement in the cervical spine, thoracic spine, lumbar spine, upper limbs, left hip and left lower limb, which were not the subject of any objective evidence of impairment immediately prior to the accident, and

9. it was submitted there was no basis identified that is capable of rising about the standard of “mere speculation” by Medical Assessor Preston which justifies any negative findings, especially in relation to the claimant’s cervical spine, upper limbs and left lower limb, thus resulting in material error.

10. The claimant’s application for review was opposed by the insurer. It submitted that Medical Assessor Preston clearly addressed all evidence in detail, referred to Wingfoot v Kocak[6] in which the High Court affirmed that an administrative decision-maker is not to be critiqued “minutely and finely with an eye keenly attuned to the perception of error” and submitted that the claimant had failed to demonstrate cause to suspect material error in Medical Assessor Preston’s findings.

    [6] [2013] HCA 43.

11. President’s delegate Tami O’Carroll issued a Determination of an Application for Review of a Medical Assessment on 28 November 2022 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The President’s delegate noted that Medical Assessor Preston found that injury to the cervical spine, right elbow and right hand were not caused by the accident. The President’s delegate found that Medical Assessor Preston did not appear to set out reasons, nor her path of reasoning, explaining why those injuries were not caused, or materially contributed to, by the motor accident.

12. For those reasons and having regard to the particulars set out in the claimant’s application, the President’s delegate was satisfied there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. Therefore, pursuant to s 63(2B) of the Act, the review application was referred to the Review Panel.

13. The Review Panel is to assess whole person impairment arising from each of the following injuries:

    ·        Neck/cervical spine – soft tissue injury, musculoligamentous injury, radiculopathy into right upper limb, paraesthesia injury to nervous system.

    ·        Right elbow – ulnar nerve neuropathy, radiculopathy, sensory loss, soft tissue injuries, injury to nervous system.

    ·        Left foot – soft tissue injuries, musculoligamentous injuries, paraesthesia, radiculopathy, sensory loss, injury to nervous system.

    ·        Right hand – radiculopathy, sensory loss affecting thumb, middle and index fingers, injury to nervous system.

    ·        Left leg – soft tissue injuries, musculoligamentous injuries, paraesthesia, radiculopathy, sensory loss, injury to nervous system.

    ·        Low back/lumbar spine – mechanical trauma, discal injury, broad based disc bulging at L4/L5 and central disc bulge and annular tear at L5/S1, L5/S1 radiculopathy.

    ·        Mid-back/thoracic spine – mechanical trauma, lesion injuries, soft tissue injury, radiculopathy, injury to nervous system.

    ·        Left hip – chondrolabral separation with anterior superior displacement and delamination at almost full thickness antero-superiorly on the left, lesion injuries, thinning of femur head, soft tissue injury, radiculopathy, paraesthesia into lower limbs, aggravation of arthritic condition injury to nervous system.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material:

   (a)    Claimant’s submissions in support of medical review application (previously summarised).

   (b)    Claimant’s further submissions in support of medical review application.

   Those further submissions deal with the need for a face-to-face assessment (which is not disputed), the claimant’s medical case on causation in relation to the cervical spine injury and right-hand paraesthesia, the proper application of the Permanent Impairment Guidelines and findings by the previous Review Panel, which strictly are of no relevance for the Review Panel’s consideration.

   (c)    Clinical file of Dr Justin Healey, treating GP.

   These commenced on 13 March 2018 and continue to 20 December 2019. There are recordings of thoracic and lumbar pain, left L5/S1 radiculopathy with pain and tenderness over the left hip region. Panadeine Forte was prescribed. There is a report of an MRI of the thoracal spine performed about the time of the accident. That scan is reported to show mild to moderate degenerative change of the thoracic spine, as well as upper lumbar spine, without central or neural foraminal stenosis. A tiny annular tear at L5/S1 was found. There are blood chemistry results which appear to be of no present relevance. A further MRI scan of the thoracic, lumbosacral spine, left pelvis and left hip was performed in August 2018. The clinical history is described as left L5/S1 radiculopathy with pain and tenderness over the left hip region. Nothing of significance was found in the thoracolumbar spine. Articular cartilage thinning was noted in the pelvis and left hip with a query if that could explain the patient’s pain. Various unusual lesions are described which are of questionable significance and relevance. The claimant was referred to Dr Michael Creswick in October 2017 for assessment of his intermittent acute mid-thoracic spine pain. The claimant was referred to
   Dr Benjamin Gooden in September 2018 for assessment of pain in his left hip region. The claimant was referred to Dr Jonathan Curtis in June 2019 for assessment of a left L5 radiculopathy. There is a letter in December 2017 from
   Dr Creswick which describes a tiny L5/S1 central disc annular tear and minor degenerative changes. No formal neurological consultation was required. There is a letter from Dr Halpern, consultant neurologist, in December 2018 which says there was electrophysiological evidence of a very mild left L5 radiculopathy which “may be incidental….. otherwise the study was normal”. There is a letter from
   Dr Healey date January 2018 which refers to left lower limb pain complaints of recent origin. Dr Creswick records as follows:

   “Main complaint today is left interscapular and left intrascapular pain. He also has episodic left waist level back pain and, when seated, episodic left buttock and left thigh pain that occurs immediately as he sits. Left buttock and thigh pain is worse if he extends his left knee when seated. A lesser complaint is left lateral cuff pain, described as a mild dull ache sometimes with paraesthesia but with no sense of numbness.”

   (d)    There is a letter dated July 2019 from Dr Gooden which describes considerable left lower limb symptoms as the result of mechanical and neurological issues. Upon clinical examination, Dr Gooden found mildly irritable range of motion of the left hip joint. Dr Gooden says that an MRI scan performed in mid-2018 demonstrated early osteoarthritic change in the left hip which is likely the cause of his evolving symptoms.

   (e)    There is a letter in July 2019 from Dr Curtis to Dr Healey. Dr Curtis records that the claimant presented with strong lower limb left sided radicular problems. Symptoms in his lumbar spine commenced after the subject accident. Dr Curtis describes a recent exacerbation of symptoms due to an incident at the gym when he was lifting quite significant weights through the legs. He suffered pain and transient left leg weakness. Dr Curtis says that an MRI scan shows degenerative changes throughout the lumbar spine but no obvious neural compression to explain his symptoms. In a subsequent letter dated September 2019, Dr Curtis reports that left leg symptoms remain prominent. Dr Curtis reports normal upper limb neurological examination with some tenderness over the ulnar nerve at the right elbow. Dr Curtis suspects that the claimant has a chronic L5 radiculopathy, made worse by physical activity and sitting, which explains his lumbar spine and leg pain.

   (f)    There is a report dated 3 March 2020 by Dr John Davis, occupational medicine, to the claimant’s solicitors. Dr Davis describes the claimant’s symptoms as intracapsular pain, constant variable pain in the lower back which radiates bilaterally, sleep disturbance due to thoracic symptoms and pain in the left elbow. (The Medical Panel assumes the reference should be to the right elbow as no other medical examiner describes left elbow pain). Dr Davis describes various diagnostic studies. He makes the following diagnosis:

   (i)significant left hip trauma due to the axial forces projected through the lower limb at the time of impact while he had his foot on the break;

   (ii)L4/L5 disc injury with annular tear at L5/S1;

   (iii)soft tissue injury to the cervical region;

   (iv)mechanical trauma to the lumbar spine;

   (v)mechanical trauma to the thoracic spine, and

   (vi)ulnar nerve neuropathy at the elbow.

   (g)    Dr Davis expresses opinions as to future treatment, personal care, domestic assistance and work capacity, which are of no relevance to the Review Panel.
   Dr Davis found that the claimant’s condition had stabilised and assessed 12% whole person impairment under the MAI 4/MAA Guides as follows:

Description	% WPI
Cervical spine	0% WPI
Thoracic spine	5% WPI
Lumbar spine	5% WPI
Ulnar nerve above mid-forearm	2% WPI

Dr Davis also opined that the claimant’s whole person impairment will increase over time with increasing degenerative changes in his left hip and subsequent impairment of that joint.

(h)    There is an ultrasound report of the right elbow performed in January 2020 by
Dr Solomons who says that the right sided ulnar nerve was seen to sublux on flexion of the elbow to a significant degree.

(i)    There is a report dated 7 May 2020 by Dr James van Gelder, neurosurgeon and spine surgeon, to the claimant’s lawyers. Dr van Gelder notes a whiplash injury of the cervical spine in 1996 which improved with self-directed exercises. The claimant stated that he had intermittent right-sided neck symptoms. Dr van Gelder records that, in the subject accident, the claimant struck his right elbow on the door and his left leg was jammed on the clutch. He had immediate onset of low back pain, left hip pain, thoracolumbar and lumbar pain. He had immediate onset of numbness of the arm on the right. He did not attend hospital.

Dr van Gelder records that the claimant’s current complaints were of numbness and pain in his right elbow radiating to the fourth and fifth fingers, tingling and pain in his upper thoracic spine between the shoulder blades, left sided back pain radiating into his buttocks. Pain and pins and needles can radiate into his posterior and lateral thigh and cuff. He can experience paraesthesia in his lateral leg and numbness in the dorsum of his foot down to the big toe. His left leg feels heavy and he drags on his foot.

(j)    Dr van Gelder had access to the claimant’s medical records which he summarised briefly. He noted the consultations with Dr Curtis and Dr Gooden.
Dr van Gelder said that the claimant has non-specific neck and thoracic pain and paraesthesia. He does not have clinical signs of cervical radiculopathy. Dr van Gelder assessed 13% whole person impairment (5% for the cervicothoracic spine, 5% for the lumbar spine and 3% for sensory impairment affecting his right ulnar nerve above the mid-forearm).

(k)    There is a report dated 11 July 2019 from Dr Ben Gooden, orthopaedic surgeon, with clinical notes. Dr Gooden was consulted for treatment of symptoms in the left hip. Dr Gooden records a mildly irritable range of motion of the left hip joint. He says that an MRI scan performed in mid-2018 demonstrates earlier osteoarthritic change with evidence of a cam type femora-acetabular impingement and early chondro-labral fissuring. There was no significant subchondral oedema. There was an incidental finding of a non-aggressive appearing lesion in the right proximal femur without pain. Dr van Gelder obtained a plain X-ray of the hip which demonstrated early osteoarthritic change but no other significant pathology.

(l)    There is a report dated 19 January 2021 by Dr Paul Teychenne, consultant neurologist, to the claimant’s lawyers. Dr Teychenne noted the history of an initial motor accident in mid-1996 when the claimant’s vehicle was hit from behind at about 60kmph. His car was written off. He had pain extending from the left clavicle over the left side of the neck into the left frontal region which persisted for three years. MRI scan in October 1997 showed some minimal narrowing of the C5/C6 disc space but no evidence of a disc prolapse or spinal stenosis.
Dr Teychenne records that the claimant did not complain of any pain down the right arm or leg until he was involved in the subject motor accident.

Dr Teychenne describes the circumstances of the subject accident. He records that the claimant hit his right elbow on the window seal and landed on the right elbow. He felt pins and needles in his right arm which became numb from the shoulder down. He had sharp pain within the right elbow. His right arm felt weak. His head struck his car’s right door. Pain extended from the right suprascapular region down the right arm to all fingers. The pain down the right arm persisted. Neck pain varied in intensity. Dr Teychenne records that the claimant had difficulty returning to work as a jeweller because of problems with his right hand. The claimant also reported electric sharp pain across the L5 paralumbar region following the accident. He had pain within the left leg which radiated around the left hip joint. The left leg felt numb and unstable. Dr Teychenne records the history of symptoms following the accident in detail. He notes that the claimant is right-hand dominant. There is a detailed description of the physical examination. There is no diagnosis. Dr Teychenne assesses 29% whole person impairment caused by injury to the nervous system. He references chapter 4, page 148, tables 13 and 15 of the AMA 4 Guides.

(m)     There is a further report dated 11 April 2021 by Dr Teychenne to the claimant’s lawyers. He references reports by Dr Healey, Dr Creswick, Dr Gooden, Dr Curtis, Dr Davis and Dr van Gelder (all previously described). Dr Teychenne opines that the claimant has an incomplete central cervical cord lesion causing his elbow pain and numbness in the fourth and fifth fingers of the right hand. Dr Teychenne considered that the MRI scan findings within the thoracic and lumbosacral spine were not clinically significant. Nor was the mild osteoarthritis within the left hip joint. Dr Teychenne repeats the history of neural symptoms following the accident. Dr Teychenne summarises as follows:

“This history while indicating that he did have an impact on the right elbow, was also consistent with radicular pain from the cervical spine secondary to an incomplete central cervical cord lesion occurring as a result of a whiplash injury to the neck ….. this history would suggest that he sustained an acute injury to the cervical spinal cord resulting in radicular pain and numbness into the right arm which was more predominant in the right elbow even though he had an impact on the right elbow.”

Dr Teychenne records that, upon examination, the claimant had bilateral imbalance. His legs collapsed, he fell to the side and had to be caught. He had restriction of movement of the lumbar spine with sharp pain over the left paralumbar region on pressure over this region consistent with allodynia.
Dr Teychenne repeats that the clinical picture on examination was quite consistent with an incomplete central cervical cord lesion.

1. The insurer relied upon the clinical notes of Dr Gooden and Dr Creswick as well as documents received from Dr Curtis. The insurer also relied upon the reports of Dr Davis,
   Dr Teychenne and Dr van Gelder (previously described). The insurer relied upon the following additional material:

   (a)    Report dated 29 June 2020 by Dr Michael Fearnside, neurological surgeon, to the insurer’s lawyers. Dr Fearnside records that, in the subject accident, the claimant suffered injury to his right elbow, from a direct blow on the driver’s door as he was thrown to the right, left hip, thoracic spine and lumbar spine.
   Dr Fearnside recites the post-accident medical history which it is not necessary to repeat. Under the heading Present Condition, Dr Fearnside lists impaired sensation in the fingers of the right hand with some finger weakness, an irritable itch in the intrascapular region of the thoracic spine, intermittent pain in the left sacroiliac joint region, left sciatic pain with referred pain down the posterolateral surface of the leg to the calf. There was some pain in the left great toe but no pain in the left foot or ankle. There was impaired sensation in the distal left leg which gave way from time to time.

   (b)    Dr Fearnside noted that the claimant had gain considerable weight since the accident. He used Panadeine Forte, Panadol and Nurofen for pain relief. He had pain in his right shoulder and the right side of his neck, likely the result of a previous neck injury in 1996, after which he had experienced intermittent neck pain. The claimant told Dr Fearnside that his right-sided neck and shoulder pain were not major problems. The physical examination essentially was normal, except for tenderness on palpation of the right ulnar nerve with paraesthesia in the region of the right elbow, tenderness in the upper inner quadrant of the left buttock and impaired sensation along the medial border of the lower third of the left chin extending along the medial border of the foot to the dorsal. Dr Fearnside says this confirms best to an L5 pattern of sensory loss.

   (c)    Dr Fearnside opines that the accident caused:

   (i)an injury to the right elbow from a direct blow with immediate sensory loss in the right arm, and

   (ii)an injury to his low back and probably left sacroiliac joint region and a soft tissue injury to the thoracic spine.

   Contrary to the findings of Dr van Gelder, Dr Fearnside was unable to detect evidence of a sensory component right ulnar nerve lesion, noting that nerve conduction studies of the upper limb revealed no evidence of an ulnar nerve lesion at the right elbow. Dr Fearnside assessed 5% whole person impairment for the lumbar spine.

   (d)    Report dated 12 November 2020 by Dr Grant Walker, consultant neurologist, to the insurer’s lawyers. Dr Walker conducted a physical examination. He provides no details, other than to say that the claimant “looked reasonably well”. He notes a clear problem with the claimant’s left hip. Dr Walker could detect no weakness in the upper limbs and says there were no particular neurological signs. Under the heading SUMMARY, Dr Walker says as follows:

   “Mr Salucci suffered from some lower back and thoracic pain as a result of the accident. He had ongoing symptoms from this although the imaging performed merely demonstrated some pre-existing thoracolumbar degenerative disease which was apparently a symptomatic until the accident. With time he has developed a far more significant problem with his left hip which is clearly an osteoarthritic problem unrelated to the accident. He has also developed some pain and sensory symptoms which has been attributed to an ulnar nerve lesion on the right, although there is no evidence that this is the case electro physiologically and once again it does not relate to the accident. Mr Salucci has been considered for neck surgery as his most recent MRI (29 April 2020) has raised the question of a right C7 radiculopathy due to the nature worsening of cervical spondylitis. This……. has not relationship to his original accident.”

   It is assumed that Dr Walker is referring to the subject accident, rather than the 1996 motor accident. Dr Walker agrees with Dr Fearnside’s assessment of 5% whole person impairment for the lumbar spine.

   (e)    There is a lengthy report dated 30 November 2020 by Dr Seamus Dalton, consultant physician in rehabilitation medicine, to the insurer’s lawyers. Contrary to Dr Walker’s impression upon examination, Dr Dalton says that the claimant was overweight and deconditioned. Dr Fearnside reviewed the diagnostic investigations, clinical records and medico-legal reports. Under the heading Diagnosis and Summary, Dr Dalton firstly says there is no contemporaneous medical evidence on file to support some of the history provided by the claimant in relation to the nature and onset of symptoms he described in his neck and right upper limb. Dr Dalton opines that Dr Creswick overtreated the claimant. He says that the claimant has undergone extensive radiological imaging which has not revealed any post-traumatic changes. Dr Dalton summarises as follows:

   “On the balance of probabilities, I think it is highly unlikely that Mr Salucci sustained an injury to his left hip joint or his right elbow and ulnar nerve at the time of the accident. In my opinion, the only injury which can be reasonably attributed to the accident is that he sustained a soft tissue injury to his lumbar region and left hip region which is consistent with the mechanism of injury and is consistent with the symptoms that he was reporting at the time that he subsequently presented to Dr Healey. I find no evidence to support the claim that his right upper limb symptoms are related to the accident.”

   (f)    Dr Dalton considered that the claimant’s neuropathic symptoms, in the absence of any demonstrable ulnar pathology, reflect his pre-morbid hypermobility and increase of neural sensitivity.

   (g)    Dr Dalton does not accept Associate Professor Fearnside’s diagnosis and opinions. Dr Dalton opines that a more likely and reasonable explanation for the development of cervicobrachaialgia and ulnar nerve irritation is that this is a consequence of prolonged static postures in the claimant’s line of work as a gem cutter and jeweller.

   (h)    Dr Dalton says as follows:

   “My examination of Mr Salucci clearly identified a lack of core stability, co-contraction in the latissimus and pectoral muscles with scapular dumping and this in itself could well account for many of his current complaints and would benefit from a much more specific and targeted exercise rehabilitation program.”

   Dr Dalton distinguishes himself from the opinions of many of the specialists and examiners who have assessed the claimant. He is particularly dismissive of surgical opinions.”

   (i)    Dr Dalton declined to provide an assessment of permanent impairment, as he was firmly of the opinion that the claimant’s condition had not stabilised and that there should be a change in therapeutic approach, such as could be provided within his own discipline.

RE-EXAMINATION

1. The claimant was assessed on 17 May 2024 by Medical Assessor Margaret Gibson whose report is as follows:

   “Mr Salucci attended unaccompanied to the assessment at St Leonards on 17 May 2024. He is 53 years of age and right-hand dominant. Present at the assessment were Medical Assessors Gray and Gibson.

   OCCUPATIONAL HISTORY

   Mr Salucci was born in Australia. He completed high school, and was accepted into an Electrical Engineering degree at university. He decided however to pursue a trade, and commenced an apprenticeship as an auto electrician. He did this for 18 months. He had then completed a Certificate IV in Jewellery at TAFE. He subsequently studied Gemmology and qualified as a member of the Australian Gemmological Association.

   He worked as a jeweller up until the time of the subject accident. He had been self-employed in his own company from 1995 and had his own shopfront up until 2010. Following this he was working out of his mother's garage.

   He said that over the years he was also buying and subdividing property, and this had caused him some financial stress in 2010.

   He said that leading up to the subject accident, he was working more than 40 hours a week in his jewellery business, with tasks such as cutting sapphires. However, following the accident, he had not taken on anymore gemstone cutting or jewellery manufacturing. He said this was because of limitations with sitting with his left hip, sciatic pain in his left leg, upper and low back pain, ‘T4-5-6-8, especially in the back’ and pain in his right arm.

   FAMILY AND SOCIAL HISTORY

   Mr Salucci is married with two sons. He owns his own house.

   Prior to the accident his sporting activity over time had been speed skating. He added that he had attempted some skating after the subject accident, but he couldn’t manage due to his left leg problems.

   PAST MEDICAL HISTORY

   Mr Salucci said he had a severe vaccine reaction in childhood and was hospitalised for about a month.

   e had fractured his left great toe when he dropped a water heater onto it.

   He sprained his left little finger skating.

   He fractured his right clavicle in 1989/91.

   He was involved in a motor vehicle accident in 1996. At that time, he had been travelling along the Pacific Highway and was near to Gordon Station, when he was rear-ended by another vehicle. Following this accident he had suffered with debilitating headaches. He had visited Dr G Marchioni for treatment of his neck pain. At the time she was working out of Dr M Creswick’s rooms in Gordon. He said he had ongoing episodes of neck pain and spasms on an approximately yearly basis ever since, and particularly so in cold weather. There was also some pain in the right shoulder region.

   When asked, he said that he had not taken any time off work after this earlier accident, however it had taken him some six months to get back to a totally normal work capacity.

   He had suffered a calf muscle tear in August 2013 whilst attending to his chickens.

   He said that prior to the subject accident he hadn’t been taking any medication.

   HISTORY OF THE SUBJECT ACCIDENT

   Mr Salucci had been driving a S70 manual Volvo sedan along the Pacific Highway in Asquith. He estimates he was travelling about 55km/hr. He had just dropped his mother off to visit his father in a nursing home. He had just overtaken a truck when he was hit on the left side by an Australian Post Hyundai van, ‘van out of nowhere’ driven by a contractor on a work visa.

   The impact had been to the front passenger door, but there was a second impact to the rear left passenger door of his car. He said he was knocked from side to side and he had hit his right elbow against the car door and he hit the right side of his head against the driver side window.

   He remembered having a, ‘funny bone’ sensation in his right arm and an, ‘electric shock’ over the whole of the left leg that settled 10-15 minutes later. He said the plastic console of his vehicle cracked as he impacted his left leg causing, ‘instant pain’ in the left leg. There was pain over the left side of his back into his left buttock, outer side of hie left leg as far as the lateral toes of his left foot. His left hip was aching. His right arm was tingling. He had pain in his neck and between his shoulder blades and, ‘knew it was going into spas’. There was pain radiating into his left groin. He was able to get himself out of the car, but he remembered he was limping at the time. He had later managed to drive his car over to the side of the road, as the traffic was building up. He strapped the car doors closed and then had driven home in first gear, as he was not that far away.

   No ambulance attended and he said he called the Police but they didn’t arrive, but he recontacted them and said they advised they were, ‘not involved’.

   He arrived home at approximately 5.15pm and he had taken some paracetamol tablets and rested. At that stage he remembered there was chiefly left hip and low back pain and said he was not worried by his arm.

   He visited his regular general practitioner on the Monday, the third day after the accident, and was told he had a, ‘soft tissue injury’ and to take Panadeine and that he was later referred for imaging of his lower back and hip.

   The Panel noted that the first visit to general practitioner, Dr J Healey was on 15 May 2017 when the doctor noted the subject accident three days previously and ‘muscular discomfort LT sided P/V muscles, intermittent numbness RT post. Thigh OE normal ROM whole spine and hips, SLR painless and to about (sic) 70 degrees, neuro exam lower limbs NAD, to rest and apply heat, R/B if symptoms persist.’

   Comment: the Panel noted no reference to upper limb complaints or limp, normal range of movement whole spine and hips, straight leg raising painless and full, and neuro exam lower limbs - nil abnormal. No investigations undertaken.

   There was a further visit 18 May 2017 when he was referred for a CT scan lumbar spine and he was prescribed Panadeine and Celebrex. There was a further visit on 23 May 2017 for review of the imaging studies. No treatment was recommended. Mr Salucci recalled taking an anti-inflammatory, Panadeine Forte and for light duties, being advised there were no fractures.

   On 6 June 2017, the doctor recorded persisting left S1 radiculopathy and persisting paraesthesia around mid-thoracic spine.

   The Panel asked Mr Salucci why his other complaints, in particular neck, right elbow or left hip were not mentioned at the time. He inferred that Dr Healy was short with his notes and the doctor had asked him to focus only on the most significant issues at the time. In addition there was no mention of any injuries apart from the mid and low back and left leg, the latter illustrated in a pictogram, being consistent with referred pain from the low back to the left leg.

   Dr Healy referred him to Dynamic Motion Physiotherapy. The referral dated 15 June 2017 was as follows: ‘He was involved in an MVA one month ago. He has persisting mid thoracic back discomfort, and paraesthesia in upper LT leg posteriorly. A recent MRI is essentially normal.’ There was no reference to neck, hip or upper limb complaints by 15 June 2017.

   Mr Salucci said he had pulled a muscle in his left groin several months after the accident when exercising using leg weights at the gym.

   On 6 June 2017, there was referral for MRI thoracolumbar spine. By October 2017, there was referral to Dr M Creswick, musculoskeletal physician, and by 13 March 2018, Panadeine Forte was prescribed for pain.

   Mr Salucci said that about 8 weeks post-accident he was told an MRI identified a, “torn delaminated left hip socket”

   On 14 December 2017, Mr Salucci underwent nerve conduction studies on referral from Dr M Creswick. These were performed by Dr Jean-Pierre Halpern. Dr Halpern had concluded that these studies demonstrated electrophysiological evidence of very mild left L5 radiculopathy.

   By 1 June 2019, there was referral to neurosurgeon, Dr J Curtis. There was a letter on file from Dr Curtis dated 29 July 2019 where the doctor notes, that following the subject accident there was low back and left-sided leg pains, the latter with radicular flavour and that nerve conduction studies had shown mild left L5 radiculopathy.

   On 25 September 2019, Dr Curtis had noted that his left leg symptoms, which he felt were classic for an L5 radiculopathy, remained prominent and on imaging studies there was an L4/5 broad based disc bulge, an L5/S1 annular tear and an early synovial cyst on the left-hand side, but no extruded disc fragment or foraminal problem and neurologically he remained intact. He recommended L5 perineural injection.

   By 21 February 2020, Dr Curtis notes, ‘his left leg symptoms along with the right arm symptoms haven't subsided anyway with fairly short periods of sitting or with standing. He feels primarily paresthesias that radiate into left leg. It radiates to the calf and to the dorsum of the foot. ...in relation to his right arm, he continues to be concerned about intermittent paresthesias also affecting primarily the forearm and fingers of the hand.’ He notes that imaging showed no significant evidence of chronic neuropathy or injury to right ulnar nerve but the ulnar nerve subluxed in flexion but that he was normal from a neurological perspective.

   On 25 May 2020, Dr Curtis notes that Mr Salucci had undergone epidural injection and this had led to significant improvement in the left leg pain but the right-sided C7 radicular pain continued to be a problem and there was pain and paraesthesia but without obvious weakness. There were discussions around appropriate treatment of the neck pathology, disc replacement discussed, but the lumbar spine was to be managed conservatively.

   CURRENT COMPLAINTS

   Mr Salucci reported daily neck pain, spasm, and cramping. He does find these symptoms respond to stretching manoeuvres. There is pain in the right suprascapular region, lateral aspect of right arm and forearm and the little and ring fingers have a different sensation to the rest of the hand. There was dysesthesia in the lateral fingers of the right hand. He finds his whole arm feels numb in association with forceful gripping activities involving his right hand and that there is an, ‘inferno’ on the ulna side of the right forearm.

   There is persisting pain between the shoulder blades and he described, ‘left latissimus pain’.

   There is low back pain at 3/10 severity, with pain extending to left buttock, left hip, all over left thigh (front, back and outer), left lateral calf and into the lateral aspect of his left foot. He said he is aware of, ‘L5/S1’ and doesn’t want it to rupture again.

   CURRENT TREATMENT

   Mr Salucci takes Panadeine Forte one tablet at night, generally 3-4 times a week. He said he had taken two Panadeine Forte this morning as he had been helping his wife with the washing machine and this had aggravated his symptoms. He estimated that 100 tablets would generally last him five months.

   He also takes paracetamol and ibuprofen as required.

   There was no current physical treatment. although he has purchased some light weights (2-3kg) and plans to use these at home.

   He visits Dr Healey, his general practitioner, as required for certification and repeat prescriptions, with his most recent review last week.

   He has not seen Dr Curtis, neurosurgeon, for several years.

   The only further treatments that have been discussed are left hip arthroplasty, but at some time in the future.

   PHYSICAL EXAMINATION

   Mr Salucci was 168cm tall. He weighed 104kg. He had a normal gait. When asked to walk on heels and toes, there was some apparent left sided weakness. He had an umbilical hernia.

   On examination of the neck, there was right sided mid cervical spine tenderness, but no tenderness on the left side of his neck. He was tender over right trapezius region, but not over the left trapezius region. There was one-third normal lateral flexion to the right and left, half normal flexion and extension. Rotation was four-fifths normal bilaterally. There was no muscle spasm or guarding. There were no specific cervical radicular symptoms.

   On examination of the upper limbs, right arm measured 37cm and left arm 37.5cm, 14cm above the tip of the olecranon. The right forearm measured 32.5cm and the left 32cm. Upper limb reflexes were present and equal. There was circumferentially reduced sensation over the right forearm, the little, ring and index finger of the right upper limb. There was generalised right upper limb weakness. The pattern of weakness and sensory change was not consistent with either a cervical radicular loss or a specific ulnar nerve loss.

   Tinel’s sign was negative at both wrists and elbows.

   On examination of both elbows, there was tenderness in the region of the right ulnar nerve on palpation. Provocation testing for epicondylitis was negative bilaterally. Active elbow movements were as follows:

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130 °	140 °
Extension	0 °	0 °
Pronation	80 °	80 °
Supination	70 °	80 °

On examination of both shoulders, he reported pain in the right arm, predominantly elbow, limiting right shoulder movements, with no associated cervical/neck symptoms or signs limiting shoulder movements. Active shoulder movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120 °	180 °
Extension	50 °	50 °
Internal Rotation	50 °	80 °
External Rotation	60 °	80 °
Abduction	130 °	180 °
Adduction	40 °	50 °

On examination of the back, there was tenderness over the upper thoracic spine in the midline, mid thoracic region, and lumbosacral junction.

Thoracic spine rotation was normal range bilaterally. There was general thoracic spinal tenderness, with no localised tenderness and no guarding.

Lumbar spine movements were lateral flexion four-fifths normal to the left and three-fifths normal to the right, rotation normal range bilaterally, flexion and extension half normal range bilaterally. There was no muscle spasm or guarding.

Straight leg raise on the right 60°, on the left 60°, with complaints of tightness down the back of the leg without a sciatic component on both sides.

On examination of the lower limbs, he squatted to two-thirds normal, limited on the left side by complaint of pain about the left hip.

Circumferential measurements of each thigh, 10 cm above the upper border of the patella, 52cm on right, 52cm on the left; maximal calf girth was 42cm bilaterally.

There was reduced sensation over the lateral aspect of left thigh, left calf and extending to the lateral border of his left hip. Reflexes were normal and symmetrical. There was global loss of power with movements of the left lower limb, with no specific radicular loss. Therefore, there were insufficient criteria to satisfy the Motor Accident Guidelines for radiculopathy.

On examination of both hips, there was restriction of movement on the left side. There was no trochanteric tenderness. Active movements were as follows:

Hip movements	Right	Left
Flexion	110°	85°
Internal Rotation	40°	20°
External Rotation	40°	20°
Abduction	45°	25°
Adduction	30°	15°

The remaining lower limb joints were normal.

DISCUSSION

Mr Salucci sustained soft tissue injuries to his thoracic and lumbar spines, the latter with pain referral to the left lower limb. He complained of general back pain after the accident, consistent with the mechanism of injury in the motor accident, although no specific new cervical or upper limb symptoms were documented in his early GP notes.

The Panel concluded that soft tissue injuries to the thoracic and lumbar spines were caused by the motor accident.

Whilst there was pain referral from the lumbar spine to the left lower limb (left leg and foot) there was no evidence of specific material injury to either of these regions and no abnormality on clinical examination.

The Panel were not of the opinion there had been any specific injury to the left hip joint. The Panel noted the history provided by the claimant in relation to the subject accident had differed over time. Because of this the Panel placed more reliance upon the contemporaneous documented medical evidence early post motor accident, in conjunction with their clinical acumen, as to the natural evolution of the current left hip arthritic condition.

The Panel were of the opinion that had there been any discreet or material injury to the left hip joint due to the subject accident, then left hip complaints would have been reported in the period soon after the subject accident. Mr Salucci had consulted his regular general practitioner (GP), three days after the subject accident. His symptoms at the time were consistent with soft tissue spinal injuries, but not new left hip pathology. Normal range of movement hips 15 May 2017. His GP had noted complaints of left sided lower paravertebral pain, and three days later some pain referral from the low back to the left leg. The first mention of left hip in the general practitioner’s notes is not until July the following year. Mr Salucci had also visited a musculoskeletal medicine specialist, Dr M Creswick some months later (12 December 2017 and 12 January 2018), there was no mention of any specific left hip complaints or relevant clinical findings. It was the Panel’s opinion, that had there been a material injury to the left hip joint, sufficient to cause new or even materially aggravate any existing left hip pathology, there would have been symptoms and signs evident in the days and weeks after the accident.

The claimant volunteered that he had pulled a muscle in his left groin, several months after the accident, when exercising using leg weights at the gym. 

The Panel concluded that Mr Salucci had bilateral constitutional degeneration of both hip joints. The MRI imaging findings were of longstanding changes of congenital femoro-acetabular impingement (FAI), and X-ray of established left hip degenerative change; that is, long standing congenital degenerative change, generally inevitably requiring hip replacement in the long term, with early similar MRI findings on the right side. (MRI 28/8/18); as above, such changes worsen over time and can be asymmetrical in their severity.

The Panel were also of the view that had been any specific injury to the neck, right upper limb or left hip this would have been mentioned in the early documentation from the treating practitioners and/or on the claim form.

IMPAIRMENT

Thoracolumbar Spine DRE Category I, 0% Whole Person Impairment. No asymmetry of movement, no spasm or guarding, no radicular complaints and no radiculopathy.

Lumbosacral Spine DRE Category II, 5% Whole Person Impairment rating in accordance with the descriptors in Table 6.7 on Page 104 of the Motor Accident Guidelines Version 9.2 10 November 2023.  Lumbar spine dysmetria with no evidence of lumbar radiculopathy under Motor Accident Guidelines.

[IMAGES UNABLE TO RENDER]

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[7]

   [7] Section 7.26(6) of the Act.

2. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[8] The Medical Assessors have explained the bases of their assessment which differs in some respects with the reasons provided by Medical Assessor Preston.

   [8] Insurance Australia Group Limited v Keen [2021] NSWCA 287.

3. The Review Panel is not satisfied that the accident caused the claimant to suffer injuries to her cervical spine, right upper limb, left leg, left foot and left hip, as a matter of medical determination, and as a matter of factual non-medical determination, for the reasons stated.

4. The Review Panel notes with respect the findings and opinions of Dr Teychenne in his various reports. The history recorded by Dr Teychenne differs in material respects to the history taken by the Review Panel and other expert reporters. The Review Panel found no evidence of radiculopathy or damage to the nervous system in the right upper extremity. Nor evidence of injury in the left lower extremity.

CONCLUSIONS

1. For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Preston on 16 September 2022 should be revoked. The new Certificate appears at the beginning of these reasons.