Salucci v CIC Allianz Insurance Limited
[2023] NSWPICMP 246
•5 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Salucci v CIC Allianz Insurance Limited [2023] NSWPICMP 246 |
| CLAIMANT: | Aldo Salucci |
INSURER: | CIC Allianz Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Robert Foggo |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act1999; assessment of impairment of injuries to: neck/cervical spine, soft tissue injury, musculoligamentous injury; mid back/thoracic spine, soft tissue injury; low back/lumbar spine, L5/S1 radiculopathy; left hip, aggravation/acceleration of congenital dysplasia and right elbow, ulnar nerve neuropathy, sensory deficit; the suffered injuries in a motor accident on 12 May 2017; collision on the passenger side front door and back door of his car pushing his car into the air and landing on the other side of the road; claimant wearing seatbelt but airbags not deployed; claimant previously injured in motor vehicle accident in 1996 assessed at 20% whole person impairment (WPI) due to cervical complaint; claimant owns own business; Held – original certificate revoked and new certificate issued; the injuries caused by the motor accident give rise to a permanent impairment of 24%, and is greater 10%; the Panel finds that can be no deduction from the impairment found in the claimant’s cervical spine on the basis of his 1996 injury. |
| DETERMINATIONS MADE: | Medical Assessment – Whole Person Impairment Review Panel Assessment of Whole Person Impairment The Review Panel revokes the certificate of Assessor Dr Preston of 16 September 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a permanent impairment of 24%, and is greater 10%: Neck/cervical spine- soft tissue injury, musculoligamentous injury; · Mid back/thoracic spine – soft tissue injury;· Low back/lumbar spine – L5/S1 radiculopathy; · Left hip – aggravation/acceleration of congenital dysplasia;· Right elbow – ulnar nerve neuropathy, sensory deficit;· |
REASONS
Background
Aldo Salucci (the Claimant) suffered injuries in a motor accident on 12 May 2017.
CIC – Allianz (the Insurer), insured the owner and/or driver of the other motor vehicle for liability to pay to the Claimant any damages under the Motor Accidents Compensation Act 1999.
The Review
The medical assessment conducted by Medical Assessor Sally Preston of 16 September 2022 was referred to this Review Panel for determination under Section 63(2B) of the Motor Accidents Compensation Act 1999 (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 clause 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.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 provides that the Panel determines how it conducts and determines the proceedings and that it may determine the proceedings solely based on the written application.
Section 7.26(6) of the MAI Act provides that the review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.
All Review Panel members confirmed that they had no previous involvement with this matter, or with the above injured person. All Review Panel members also confirmed that there was no conflict or any other reason that they would be unable to approach this review with an open mind.
Conduct of the review
The parties complied with the Review Panel’s Direction of 12 January 2023, and provided paginated bundles of documents containing all the material upon which they each relied in respect of the Review.
10. The Review Panel met via teleconference on 23 February 2023. The Review Panel directed the claimant to attend a re-examination conducted by Medical Assessor Dr Moloney and Medical Assessor Dr Stubbs on behalf of the panel on 28 April 2023.
11. After receipt of the examination report of Medical Assessors Dr Moloney and Dr Stubbs, the Review Panel determined that it was able, for the reasons set out below, to come to a conclusion without seeking further submissions or material from the parties.
Assessment under Review
Medical Assessor Dr Preston had been directed by the PIC to assess injuries to the claimant’s cervical spine and lumbar spine in accordance with section 58 (1) (d) of the MAC Act.
The Assessor certified that the injuries to the claimant’s mid back/thoracic spine, low back/lumbar spine, and left hip gave rise to a permanent impairment of 5%, being less than the 10% threshold.
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel considered all of the material provided by the parties pursuant to the Review Panel’s Direction of 12January 2023.
RE-EXAMINATION
The President’s Delegate, in her Determination of 28 November 2022, extended time for the claimant to make the present application, and was satisfied that there was a reasonable cause to suspect the medical assessment was incorrect in a material respect.
This was because she found that the Medical Assessor had failed to disclose the path of reasoning in respect of her finding that the injuries to the claimant’s cervical spine, right elbow and right hand were not caused by the motor vehicle accident.
At paragraphs 2 – 3 of the claimant’s Further Submissions (page 111 – 112 of the claimant’s bundle of documents, the claimant insisted that substantive and procedural fairness required and in person face-to-face re-examination of the claimant by members of the Panel.
The Review Panel accordingly determined that it was necessary to re-examine the claimant in accordance with the comments of Leeming JA at [41] of Sydney Trains v bastion [2021] NSWCA 143.
The Re-Examination Report
The re-examination report of Assessor Dr Moloney and Dr Stubbs is as follows:
20.Mr Salucci attended the medical suites of PIC on April 28, 2023. He was accompanied by his brother who remained in the waiting room and was interviewed and examined by Assessor Stubbs and Moloney.
Pre-accident history
21.Mr Salucci is married and lives with his wife and 2 sons. He was educated in Australia and after leaving school and an apprenticeship in auto electrics and then switch to manufacturing jewellery. In 1995 he went into his own business and established the Natural Sapphire industry.
22.There was a motor vehicle accident in 1996 which was a rear collision resulting in a whiplash injury. At that time, he sought treatment from 2 musculoskeletal specialists with relapsing neck pain and in 1998, Dr Dixon assisting as having a 20% WPI due to the cervical complaint. There were also falls when he was speedskating which resulted in a fracture of the right clavicle.
History of motor vehicle accident
23.On 12 May 2017, Mr Salucci was driving his car and passing a truck when a car failed to give way resulting in a collision on the passenger side front door and back door of his car pushing his car into the air and landing on the other side of the road. He states that he his left leg and the clutch and right leg was on the brake with hands on the steering wheel. He states that there was no collision with the left side of his body but he hit his right elbow on the door and received a slight bump on the right side of his head. He was wearing a seatbelt at the time but airbags were not deployed. The police attended the accident and after strapping his doors he was able to drive the car home.
History of symptoms and treatment following the motor accident.
24.Initially there was pain in the left hip region low back pain and mid thoracic pain as well as the right elbow. He consulted his GP the following day and was referred to Dr Curtis who diagnosed cervical radiculopathy and subluxation of the ulnar nerve at the right elbow. He also consulted Dr Gooden, an orthopaedic specialist as regards left hip pain.
25.Initially, Mr Salucci was attending the gym with his son 3 or 4 times a week but about 2019 he was doing some leg presses with the machines which aggravated the left leg pain and caused electric shock feeling in the left leg and numbness that this again settled spontaneously. If he cycles on a fixed bike in the gym gets an aggravation of left leg pain/left hip and right elbow pain.
Current symptoms
26.Since the accident, the pain in the left leg is the main concern with mild low back pain which was aggravated more than a year ago when he felt a pop in that region with no apparent cause and this settled spontaneously. His neck pain has gradually resolved but has been a little sore lately. There is persistent pain in the right elbow region.
27.Left hip pain increases with prolonged sitting such as on the toilet or any hard seat and is associated with numbness in the left leg and a radiation of pain from the anterior left hip region into the groin which increases with movement that is not aggravated with coughing or sneezing. There is a feeling of pins and needles with pain over the lateral/posterior left buttock and tie region which radiates down the front of his left shin to the dorsum of the left foot except the big toe. This is unpredictable when it occurs that is not aggravated by coughing or sneezing and he gets some relief with walking. He also finds that the left leg easily fatigues.
28.Since the accident he has been unable to return to speedskating as he feels weak in the left leg was a poor balance. He has changed from using a manual transmission to an automatic transmission in his present car as he was not comfortable using the clutch.
Present medication
29.At present Mr Salucci has Panadol or Nurofen when needed and with severe pain, Panadeine Forte at night 3 to 4 times per week. No manual therapy is being undertaken at present and the only doctor he consulted his GP when needed.
30.There have been no further injuries or accidents since 2017.
Clinical examination
31.Mr Salucci states that he is right-handed and height was measured at 167 cm and weight 108 kg. He sat comfortably during the interview and examination.
32.Cervical spine
33.On testing range of movement, flexion/extension was 80% of expected range and side bending rotation were 80% on the left and 50% on the right with asymmetry noted. On palpation of tenderness over the right trapezius muscle and the right side of his neck. Brachial tension test was positive on the right with a positive Spurling’s test.
34.On neurological examination of the upper limbs, reflexes were normal on the left with an absent right bicep reflex and normal supinator and triceps reflexes. There was slight weakness on testing the right arm which was 4/5 and 5 out of 5 on the left. There was a normal range of shoulder movement bilaterally.
35.Slight muscle wasting was noted in the right upper arm with the circumference 38.5 cm on the right and 40.5 cm on the left (10 cm above the olecranon process) and in the upper forearm 32 cm in the right and 33.5 cm on the left. On inspection of the right biceps muscle, there was some deformity which indicated a possible previous injury. The Panel considers that the decrease in circumference of this upper arm is due to a deformity in the biceps muscle bulk and not due to wasting as a sign of radiculopathy.
Right elbow
36.There was decreased sensation over the 4th and 5th fingers on the right arm and index and middle finger . Two-point discrimination is worse than 5 mm (no two-point discrimination on the pinwheel) there is positive Tinel’s test over the ulnar nerve at the cubital fossa. There was a full range of movement in flexion/extension supination and pronation of both elbows. There is slight wasting of the hypothenar and interosseous musculature. Strength is 4/5. This
Lumbar spine
37.Mr Salucci walked with a normal gait and when attempting to walk on his toes had a slight weakness in the left leg. He was able to walk on his heels. He could hop on his right leg but was unsteady when hopping on the left leg with a positive Trendelenburg sign.
38.On testing range of movement, flexion/extension, side bending and rotation were all within normal limits and symmetrical. Straight leg raise was 90° on the right and 70° on the left with a positive sciatic nerve root tension sign. On palpation of the lumbar musculature, no guarding or spasm was noted.
39.On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power, but there was decreased sensation over the lateral left calf and dorsum of the foot when tested to light touch and using pinwheel. There was normal sensation over the medial left leg and entire right leg. This was in the distribution of the L5 dermatome. No muscle wasting was apparent with the circumference of the lower thighs 34 cm in the right and 33 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 43 cm bilaterally.
Hips
40.On testing range of movement of the hips, flexion of the right hip was 120° and 110° on the left. There was full extension and the right hip but a flexion contracture 15° on the left. Internal rotation was 20° on the left and 30° on the right, external rotation is 15° on the left and 30° on the right with and abduction of 20° on the left and 30° on the right and adduction 15° on the left and 20° on the right.
41.( In assessing impairment of the hip, the worst range of movement is selected which is a 15° flexion contraction which is a mild impairment of 2% WPI)
Imaging studies
42. The Assessors were able to personally review three relevant sets of imaging. These are MRIs of the cervical lumbar spine and plain x-ray of the left hip.
43. Left hip – this shows evidence of congenital dysplasia. The acetabulum is open in the AP view and measures approximately 50° of lateral inclination on the anterior posterior view. The lateral view shows that the acetabulum is very shallow, it is not a hemisphere but rather is about twice the width compared to the depth. This makes interpretation anti-version difficult. Congenital dysplasia of the hip is part of the spectrum of mall development of the hip joint which at one extreme results in congenital dislocation of the hip and at the other an abnormally shallow hip joint with excessive lateral inclination. Mr Salucci is at this end of the spectrum. Mild degrees of congenital dysplasia are not associated with any symptoms or disability in the young but there is increased probability of precocious osteoarthritis in the aged. Symptoms develop in the 40-to-50-year age group but our first mild and not disabling and the sufferer may not notice any problems in day-to-day activities but problems athletic activities such as the speedskating that Mr Salucci has not been able to return to since the accident.
44. MRI of the cervical spine – the most part this shows age-related degenerative changes most pronounced in the lower cervical spine. The cervical spine canal is of normal contour but there is hypertrophy of the facet joints and some foraminal stenosis of the exit canal is for the cervical nerve roots on both sides. There is a lateral flexion injury to the cervical spine followed by a compression injury in the second component of the motor vehicle accident.
45. MRI the lumbar spine – this generally shows age-related changes but the panel note that on the sagittal imaging the distance between the posterior margin of the vertebral body an intervertebral disc to the anterior margin of the posterior elements is markedly narrowing the lower three lumbar segments, L4/5/S1 that in the upper lumbar spine L1/2/3. This is also seen in the transverse views. At the lower level these showed facet joint hypertrophy leading to the cross-section of the spinal canal having a fat T shape. The upper spinal canal maintains the normal oval shaped. Mr Salucci has a combination of mild congenital spinal stenosis and secondary lateral stenosis caused by hypertrophy of the facet joints at the lower levels. As a consequence, there is some narrowing of the nerve root exit foramina on both sides. Clinically he has an L5 radiculopathy on the left. This could be due to lateral foraminal stenosis at L5/S1 though this particular foramina does not seem to be particularly more affected than any of the others. As with the cervical spine there is lateral flexion combined with compression. A traction injury the L5 nerve root is possible. It is also noted that he suffered a distinct recurrence of the L5 radiculopathy when exercising at the gym with the intention of strengthening his week left leg that followed the motor vehicle accident.
Mechanism of injury
46. The motor vehicle accident had two components. First, there was a T-bone accident to the left side of his vehicle. He notes that he struck the transmission tunnel/gearshift. This is as anticipated from the first component of the motor vehicle accident, as he was stationary in respect to the car but on impact the car shifts to the right and his inertia caused direct contact with structures to his left side, particularly his flexed left hip. There is thus a direct blow to the left side of the hip caused by the motor vehicle accident and acceleration/aggravation of any previously noted early osteoarthritis may be a consequence.
47. The second component occurred when his vehicle mounted the median strip. In this case the vehicle jumped vertically. He reported direct contact with his flexed right elbow against the armrest on the driver door. This too is very plausible, and a direct injury to the medial side of the flexed right elbow (ulnar nerve) is therefore likely.
Impairment assessment
48. There are thus four injuries to consider:
49. Aggravation/acceleration of the congenital dysplasia of the left hip. The motor vehicle accident makes a material contribution. There is no deduction for pre-existing condition because this was asymptomatic prior to the motor vehicle accident – 2% WPI.
50. L5 radiculopathy – though there is a mixture of congenital and degenerative spinal stenosis symptoms begin with the motor vehicle accident, there is a plausible mechanism of injury and the motor vehicle accident makes a material contribution. – 15% WPI.
51. The situation in the cervical spine and right arm is more complex. The dermatomal mapping the sensory disturbance is much more widespread than a simple radiculopathy. It best follows the ulnar nerve distribution – C8/T1, anaesthesia on the ulnar border of the forearm and the ring and small fingers with some wasting of the small muscles of the hand and a positive nerve tension signs on palpation of the ulnar nerve just proximal to the elbow (Tinel’s sign). There is also anaesthesia in the index and middle fingers – this normally has a C6/7 distribution but it is noted that the thumb sensation (also C6) and muscles are spared. Carpal tunnel compression tests are negative so there is no median nerve compression. One possible explanation is the normal variation in formation of peripheral nerves. This may be in the spinal canal before the nerve root is formed from the sometimes variable number of sensory nerve rootlets that bundle within the epidural sheath to form the nerve roots, variations in how the nerve roots bundle and divide into trunks in the brachial plexus, variation in how the trunks contribute to the peripheral nerves and finally occasional communicating branches from the ulnar nerve to the median nerve in the forearm. The sensory and motor contribution of the median and ulnar nerves is variable (medial or ulnar dominance), and whilst ulnar dominance is uncommon it is not rare. This seems the best explanation for the clinical findings. The dermatomal map C6 in the right upper limb shows sparing of large components of C6, the radial side of the forearm and the thumb.
52. Impairment calculations for the cervical spine are therefore DRE 2, 5% WPI, due to the presence of dysmetria but not DRE3 as there is no true radiculopathy.
53. Impairment calculations for the ulnar nerve consist of the potential sensory loss of the ulnar nerve above the mid forearm, maximum 7% UEI plus what would normally be the radial and ulnar palmar branch contributions to the ring as per table 15, and middle finger and the radial side of the ring finger. Combined 20% upper extremity impairment as per table 15. Modified by table 11 clinical grade 3, (50%.) Plus 46% upper extremity impairment for motor deficit table 15 modified by table 11 clinical grade 4 (25%) – the calculation then becomes 10% UEI +11% combined 19% UEI which table 3 translates to 11% WPI.
54. Table 15 ulnar n.(above midforearm) sensory deficit is 7 % UEI . Using table 11a grade 3 which is 60 %of 7 % = 4.2 % and rounded down to 4 % UEI. The motor component is assessed using table 12 to be grade 5 which is 0 %. The rule is to use the highest level for each grade in accordance with the Procedure mandated in table 11b.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Thoracic spine | Chapter 3 | Yes | 0% | 0% | 0% |
| 2 | Lumbar spine | Chapter 3 table 72 | Yes | 15% | 0% | 15% |
| 3 | Left hip | Chapter 3 table 40 | Yes | 2% | 0% | 2% |
| 4 | Cervical spine | Table 73 AMA | Yes | 5% | 0% | 5% |
| 5 | Right ulnar nerve | Table 15,11a,12 | Yes | 4% | 0% | 4% |
56. Total impairment using Combined Tables: 24%
Reasons
As there was no challenge by the parties to Assessor Preston’s finding of 0% whole person impairment of the claimant’s thoracic spine, there was no re-examination of the claimant’s thoracic spine, and the Panel confirms the 0% whole person impairment finding.
Although injuries to the claimant’s left leg, left foot and right hand were referred for assessment to Assessor Dr Preston, the Panel notes that no Frank injuries to these body parts were caused by the accident. The symptoms noted in the left leg and left foot are a result of the injury of the claimant’s lumbar spine, and have been assessed as part of that injury. The symptoms of the right hand result from the injury to the ulnar nerve, and have been assessed as part of that injury.
The insurer’s submissions of 14 November 2022 (insurer’s bundle pages 1 – 8) dismiss a number of the claimant’s criticisms of the Certificate of Assessor Preston on the basis that the Assessor found that the injuries to the claimant’s neck/cervical spine, left leg, left foot, right elbow and right hand were not caused by the motor vehicle accident.
However, the insurer did not engage with the submissions made by the counsel for the claimant (claimant’s bundle page 114 at paragraph 14) based upon the principles in Insurance Australia Ltd Trading as NRMA Insurance v Brown [2019] NSWSC 1236 at [77]. Button J there found that where the causation of a referred injury was not explicitly or implicitly in dispute, that there was no ability of a Panel to agitate this issue.
Wright J’s comments at [65] of Wood v Insurance Australia Group Ltd trading as NRMA Insurance [2022] NSWSC 1290 made it clear that a Medical Assessor has no ability to determine “that the relevant injury was not caused by the motor accident when that issue was not referred to him for assessment.”
In relation to the insurer’s submissions concerning the lack of a deduction in respect of the claimant’s 1996 injury to his neck, the Panel agrees with claimant’s counsel’s submissions at paragraph 15 (page 114 – 115 of the claimant’s bundle) that clause 6.31 of the Permanent Impairment Guidelines directs that the unless there is objective evidence of pre-existing symptomatic permanent impairment, its possible presence should be ignored.
In the present matter, the claimant’s treating general practitioner’s clinical notes reveals no consultations or treatment for his neck from at least 2011 until the time of the motor vehicle accident.
Accordingly, the Panel finds that can be no deduction from the impairment found in the claimant’s cervical spine on the basis of his 1996 injury.
The Review Panel accordingly agrees with and adopts the findings and conclusions of Assessors Dr Moloney and Dr Stubbs.
Conclusions
It therefore follows that the Certificate of Assessor Dr Preston is revoked.
Review Panel Certification
67. This certificate has been viewed by Assessor Moloney and Assessor Stubbs who have confirmed that they are in agreement.
0
3
0