Singh v AAI Limited t/as GIO
[2022] NSWPICMP 306
•30 June 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Singh v AAI Limited t/as GIO [2022] NSWPICMP 306 |
| CLAIMANT: | Jatinder Singh |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL: | Member Belinda Cassidy Medical Assessor David McGrath Medical Assessor Shane Maloney |
| DATE OF DECISION: | 30 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical assessment of whole person impairment (WPI) and claimant’s review under section 63 of the Motor Accident Compensation Act 1999; claimant injured as a back seat passenger in a four-car rear end collision; claimant alleged injury to neck, lower back and left shoulder; original Assessor determined WPI was 10%; 5% for the neck and 5% for the back but 0% for the left shoulder due to similar restriction of range of motion in uninjured right shoulder; Held — WPI not greater than 10%; panel satisfied injury to neck and lower back but no direct injury to either shoulder; any restriction of movement in shoulders due to neck injury; claimant did not, at the time of examination satisfy Diagnostic Related Estimates II; restricted shoulder movement for both shoulders assessed by range of motion method at 8%. |
DETERMINATIONS MADE: | Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Assessor Herald dated 22 June 2021. 2. Certifies that the degree of Mr Singh’s permanent impairment resulting from the injuries caused by the motor accident on 31 December 2016 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Jatinder Singh was involved in a motor accident on 31 December 2016. He was a back seat passenger in the second car from the front caught up in a four-car collision.
The car Mr Singh was travelling in was written off, and Mr Singh was injured.
On or about 10 January 2017, Mr Singh made a claim against GIO the third-party insurer of the offending vehicle.
A dispute has arisen between Mr Singh and GIO about Mr Singh’s entitlement to non-economic loss. That dispute was first referred to the Medical Assessment Service of the State Insurance Regulatory Authority in 2018 and Assessor Eugene Gehr determined the claimant did not have an entitlement to non-economic loss. That assessment was the subject of an application for review.
The claimant sought a further assessment of the dispute from the Personal Injury Commission[1] (the Commission). That assessment was undertaken by Assessor Herald who also determined the claimant did not have an entitlement to non-economic loss and it is that assessment that is the subject of the current review.
[1] Following the abolition of the Medical Assessment Service on 28 February 2021.
The Delegate of the President determined that the application for review should proceed and the President of the Commission has convened this Panel to undertake the review of Assessor Herald’s assessment.
STATUTORY FRAMEWORK
Mr Singh’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[2] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2021 is $590,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Assessor Gehr’s, further medical assessments such as Assessor Herald’s and the Review of medical assessments by a review panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Assessment of the spine
When undertaking an assessment of the spine, there are three segments of the spine (cervicothoracic, thoracolumbar and lumbosacral). Each injured segment is assessed separately and then Diagnostic Related Estimates (DRE) are applied to determine the degree of impairment resulting from the injury to each of the three segments.
Table 7 in the Guidelines includes the following summary of three of these DREs which are relevant to this claim and the Panel’s assessment[6]:
(a) low back pain, neck pain or symptoms – DRE I which attracts a WPI of 0%;
(b) low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II which attracts a WPI of 5%, and
(c) low back or neck pain with radiculopathy – DRE III which attracts a WPI of 10%.
[6] For example, there is no suggestion in Ms Singh’s matter that he sustained a vertebral body compression of less than 25% or any spinal fracture which might attract a DRE II assessment.
The Guidelines contain a definition of non-verifiable radicular complaints which is relevant to the DRE II categorisation as follows[7]:
“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).”
[7] Table 8.
There is also a definition of radiculopathy which is relevant to the categorisation of an injury as DRE III as follows[8]:
“Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
1.138.1 loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.2 positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.3 muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
1.138.4 muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
1.138.5 reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
[8] Clause 1.138.
Assessment of the shoulders
When assessing upper extremity impairment, the shoulder is considered part of the upper extremity as is the upper arm, forearm, hand and fingers. Injuries to various parts of the upper extremity are assessed, then combined to determine an “upper extremity impairment” (UEI) which is then converted into a WPI percentage.
Clause 1.50 of the Guidelines provides that:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed.”
Guidance is given for the assessment of range of motion including use of a goniometer “where clinically indicated”. Only active range of motion measurements should be used “with at least three consistent repetitions” if there is a concern about reliability. If the range of motion is inconsistent, then its validity it affected and “the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present”.
Clause 1.51 of the Guidelines provides:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”
MEDICAL ASSESSMENTS
Assessor Herald – assessment under review
Assessor Herald’s certificate is dated 22 June 2021[9].
[9] After an examination on 1 June 2021.
Assessor Herald notes that he was asked by the Commission to assess:
(a) cervical spine soft tissue injury;
(b) lumbar spine soft tissue injury, and
(c) left shoulder soft tissue injury.
The Assessor records the following history:
(a) the claimant had no previous medical problems or injuries to his neck, back or shoulders;
(b) after the accident the tow truck came, and a replacement car was dispatched to take him home;
(c) ambulance did not attend and the claimant did not go to hospital but he felt neck and back pain;
(d) he attended Dr Usmani his treating general practitioner (GP) who referred him for physiotherapy and anti-inflammatory medication including Targin and then Tramadol. He was referred for counselling;
(e) Mr Singh has been seen by a pain specialist with no treatment recommended and six months ago he attended upon Dr Darwish (neurosurgeon), and
(f) the claimant developed plantar fasciitis after the accident for which he has had treatment.
Assessor Herald says under the heading “current symptoms” that:
“He continues to have neck pain with pain radiating to his left shoulder as well as some back pain radiating to both legs. He has no focal shoulder pain but the pain he does feel in his shoulder seems to radiate from his neck.”
On examining the neck, Assessor Herald found the claimant was tender over his cervical spine with restricted range of motion to about one quarter of the range. Some spasm was observed and a “positive Spurling’s test” mainly in the left shoulder and to a lesser degree in the right. There were no neurological abnormalities in the upper limbs.
When Assessor Herald examined the claimant’s back, there was lumbar spine tenderness and some non-verifiable radicular complaints (tingling and numbness) radiating to both legs but no loss of tone, power or reflexes. The claimant walked normally and was able to straight leg raise to 30 degrees.
On examination of the claimant’s shoulders, Assessor Herald formed the view that there was restriction of motion due to pain in the neck rather than any direct shoulder problem.
Assessor Herald reviewed the CT scan of 6 January 2017 which was said to show broad-based disc protrusions at L5/S1 and L4/5 and the MRI of the cervical spine dated 22 January 2019 showing central disc protrusions at C4/5. An MRI of the left shoulder showed an acromio-clavicular joint sprain with subacromial bursitis and an MRI scan of the thoracolumbar showed minor disc desiccation at L4/5.
Assessor Herald diagnosed a whiplash injury to the neck with pain and non-verifiable radicular complaints predominantly to the left shoulder blade with a soft tissue injury to the lumbar spine. While identifying a subacromial bursitis he noted this appeared to have resolved.
Assessor Herald commented that there were no inconsistencies.
He assessed the claimant’s cervical injury at 5% and also the lumbar spine at 5% both of which are DRE category II.
In terms of the left shoulder while Assessor Herald assessed the impairment due to the loss of motion in the six planes of the left shoulder, he measured both shoulders and found the range of motion in both was equal. As the claimant did not allege injury to the right shoulder, he considered therefore that because the two were equal and therefore both shoulders were impaired, there was no impairment to the left due to the accident.
Assessor Gehr – previous assessment
Assessor Gehr had undertaken an assessment of WPI issuing a certificate dated 10 May 2018 after an examination on 27 April 2018[10]. He certified the claimant had a lumbar spine soft tissue injury which had resolved and attracted a 0% WPI. Dr Gehr had been asked to assess the cervical spine, lumbar spine and left shoulder on the basis that each had sustained soft tissue injury.
[10] Document AD7 in the Commission’s electronic file.
The claimant told Assessor Gehr he was taking Lovan, Pelexia and Panadeine Forte, that he had not returned to work and that he could not clean his apartment, undertake maintenance and can only drive for short distances.
The claimant reported to Assessor Gehr that he first had pain in the mid lumbar part of his spine and that minor pain in his neck increased with time. The claimant also reported pain in both knees and both heels which developed “several months after the accident”.
When asked to list his current symptoms the claimant describes pain in the mid lumbar part of his back, pain in his neck and the superior aspect of the left shoulder.
Assessor Gehr undertook measurements three times with a goniometer and recorded four signs for non-organic low back pain. Assessor Gehr pointed the claimant to incidents of inconsistency and recorded his responses.
Assessor Gehr was not satisfied any neck injury was caused by the accident due to the absence of complaints and was not satisfied the claimant’s left shoulder restriction of movement was consistent or indicative of injury. He found there was a lumbar spine injury but that it had resolved. Assessor Gehr did not have all the documentation that was later provided to Assessor Herald and which is before the Panel.
SUBMISSIONS
Claimant’s submissions
The claimant’s bundle of documents includes two copies of the submissions in support of an application for review of Medical Assessor Eugen Gehr’s original assessment dated 10 May 2018. These submissions were drawn up by counsel and are dated 24 January 2022.
The claimant has also attached a copy of its submissions in support of his application for general assessment of his damages. These submissions deal with issues not before the Panel.
The claimant attached the submissions made to the delegate of the President in support of an application for further medical assessment under s 62. These submissions were accepted by the relevant decision maker and the further assessment was allowed and it is Assessor Herald who undertook the further assessment. The Panel can see no utility in repeating these submissions.
The submissions lodged in support of the current application[11] take issue with the reduction of the claimant’s left shoulder impairment by 6%. The claimant raises four errors:
(a) improperly applying cl 2.5 of the Guidelines;
(b) failing to explain why the injured left shoulder joint would have similar findings to the uninjured right shoulder joint before injury;
(c) the right shoulder joint had near full range of motion when examined by Dr Conrad and Dr Gehr and therefore would not have been expected to be the same as the left shoulder joint, and
(d) failed to consider whether any right shoulder range of motion was affected by neck pain.
[11] Drawn by counsel and dated 18 August 2021 and lodged separately to the claimant’s bundle.
The claimant says the assessor did not set out the rationale for the assessment in particular the use of the right shoulder as the “baseline”.
Insurer’s submissions
The insurer refers to cl 1.5 of the Guidelines and says this requires:
(a) the contralateral uninjured joint (right shoulder) to have a less than average mobility;
(b) the uninjured joint can then serve as a baseline and be subtracted from the impairment of the injured joint;
(c) this is only done if it is reasonable to assume the two joints would be the same before injury, and
(d) the rationale must be explained.
The insurer sets out the range of motion found for the right shoulder and says they are less than average (and less than the full range found by Dr Menogue).
The insurer also submits that both shoulders were equal when assessed by Dr Menogue in September 2019 and that it was open to the assessor to compare the uninjured with the injured shoulder to arrive at the figures he arrived at.
The insurer also provides a copy of the submissions it lodged seeking a further assessment which refers to an earlier assessment of Assessor Gehr (not provided). The Panel does not see any need to summarise those submissions as they relate to another assessment which has been supplanted by Assessor Herald’s. Review of the evidence
Decision of the President’s Delegate
The Delegate of the President allowed the review on the basis that the Assessor did not provide clear reasons to explain why he used the claimant’s uninjured right shoulder to serve as a baseline in breach of cl 1.51.
REVIEW OF THE EVIDENCE
Factual and treating material[12]
[12] While the claimant provided an indexed bundle of documents in answer to a direction from the Panel, the bundle was not paginated therefore there are no references to page numbers for any of the claimant’s documents.
The claim form says that the vehicle Mr Singh was in was hit from behind by a car that had in turn been hit from behind. Mr Singh says the vehicle in front of his was hit by the car he was in.
The claim form is signed and dated 10 January 2017. At question 22 the claimant says he only injured his lower back and that his GP is Dr Usmani.
Dr Usmani has completed the medical certificate attached to the claim form which is also dated 10 January 2017 and says he has been the claimant’s GP since 2 January 2017. The only area of the body injured was the lower back which was said to have produced pain radiating to the heels. A referral of the same date for physiotherapy also refers to back pain and heel pain.
The claimant relies on a statement dated 25 July 2019. He says that when he got home after the accident, he realised he had severe pain in the lower back and pain in his neck radiating towards his left shoulder. He started taking Brufen for the pain every eight hours but did not feel relief from pain so saw his GP on 2 January 2018 [sic].
He says at [19] “I continued to have pain in my lower back, neck, right shoulder” and that after a few months he developed pain down his legs into his knees and back of his ankles. He refers at [21] to significant pain in the lower back, neck, right shoulder and down his legs.
Mr Singh says he tried to get back to work but had difficulty because of the “pain in my neck, in my lower back radiating down my legs, in my right shoulder radiating down my arms.”
In [31] the claimant refers to pain in his lower back radiating down his legs through to his heels and pins and needles in his heels on both sides. He also says he has pain in his neck radiating down both shoulders but worse on the left.
A statement relevant to gratuitous domestic assistance was provided from Niti Pearl and another from Himani Rana
In terms of radiology there is a CT lumbar spine dated 6 January 2017 – with a history of post traumatic leg pain right more than left. The report identifies a broad based disc bulge at L4-5 with lesser but similar finding at L5-S1.
There is an MRI of the claimant’s cervical spine and left shoulder dated 22 January 2019 however this referral comes from Brydens and not from a treating doctor. The history taken for both is “compensation”. This appears to be a medico-legal expense and not treating radiology. There was a small bulge at C4/5, some narrowing of the left neural exit foramina due to an osteophyte at C5/6 but the cord and upper thoracic cord appeared normal. The left shoulder was reports as having a mild AC joint sprain and supraspinatus tendinosis and subacromial subdeltoid bursitis. There was no right shoulder radiology.
An MRI of the lumbar spine was also undertaken by referral from Brydens which revealed “Minor disc desiccation and disc bulge at L4/5 not causing significant canal or foraminal stenosis. Otherwise, normal MRI appearance to the thoracolumbar spine”.
Notes from ReFit Physiotherapy were provided which note the first attendance on 12 January 2017 with this history “neck and bilateral shoulder, occasional back pain”. Upper back pain was reported and the shoulder pain was greater on the left than right and there was lower back pain radiating to the knees and ankle with heel pain.
The GP notes indicate back pain only on the first visit of 2 January 2017 and on 20 January, “Complains of worsening lower back pain and now new neck pain started”.
Dr Gronow, a pain management specialist who treated the claimant has provided a report dated 21 September 2017 to the insurer. He has a history of the claimant developing neck and back pain in the evening of the accident (New Year’s eve) and seeing his GP two days later. Mr Singh complained of sharp pain in his back, knee pain, constant ankle pain with pain in the heel when walking. Neck pain was constant which Mr Singh said could radiate across the shoulders but not down the arms.
Dr Gronow said:
“Mr Singh is presenting with mainly mechanical cervical and lumbar spine pain with secondary postural pain in his ankles due to his abnormal gait. He is presenting with marked fear avoidance and castastrophisation which is inhibiting his ability to progress, and he has very passive adaptive coping strategies.”
Medico-legal reports
Claimant’s medico-legal experts
Dr Conrad provided a report dated 4 October 2017. The history he obtained is of immediate neck and back pain and attendance on his GP. Dr Conrad notes present symptoms of pain in the neck radiating to both shoulders and upper arms. Ongoing back pain radiating down the backs of both legs to the knees.
On examination of the neck there was moderate restriction of movement which was asymmetrical and muscle spasm present. The right shoulder demonstrated full movements and there was restriction of flexion, extension adduction and abduction in the left shoulder. There was some muscle spasm present over the thoracolumbar spine but no neurological symptoms.
Dr Conrad diagnosed whiplash injury to the neck with pain and restriction of movement in the left shoulder due either to radiculopathy or discrete injury to the shoulder with ongoing back pain.
Dr Conrad assessed WPI in a separate report as follows:
(a) neck – DRE II 5% WPI;
(b) lower back – DRE II 5% WPI;
(c) upper extremity - 4% whole person impairment, and
(d) total - 14% WPI.
In a further supplementary report dated 12 February 2019, Dr Conrad reviewed the MRI scans ordered by Brydens and did not change his views on WPI as a result.
Gerard Clancy psychologist has provided a report dated 9 April 2019. The claimant reported sleep disturbance and trauma related anxiety, low mood, strong pain. His greatest pain was back pain, then knee pain and neck pain.
Dr Davis of the occupational health assessment centre provided a report dated 9 July 2020. He has a history of the claimant being a nearside (kerbside) passenger which suggests a seatbelt was over the claimant’s left shoulder.
Dr Davis has a history of the onset of lower back pain with right lower limb symptoms through the calf to the under surface of the right and left foot. He then has a history of increasing neck and left shoulder symptoms.
On examining Mr Singh’s neck, Dr Davis found some mild right-sided spasm in the neck, symmetrical loss of range of motion in the shoulders, no neurological findings in the upper limb. The claimant was tender from L4 to S1 and lower limb reflexes were present with no abnormal sensation in an anatomical distribution.
He diagnoses mechanical trauma to the lower back and neck.
While Dr Davis noted the claimant’s injuries had stabilised and impairments had become permanent. The assessment of WPI was contained in a separate report dated 9 July 2020 expressing the view the clamant had DRE II ratings of 5% each for the cervical and lumbar spines with a total WPI of 10%[13]. He did not assess any shoulder impairment.
[13] The report of Dr Davis without the WPI assessment was included in the bundle provided by the claimant. The WPI assessment was provided following the Panel’s request and is document AD6 in the Commission’s electronic file.
Insurer’s medico-legal expert
Dr Menogue examined the claimant and provided a report to the insurer dated 11 October 2017[14]. The claimant said he had no previous injuries to his neck, back, arms or legs. The claimant reported difficulty cooking complicated Indian dishes, that he did some things around the home but that he has a flat mate who pays no rent in exchange for cooking and cleaning.
[14] Document AD 8 in the Commission’s electronic file.
The claimant said he injured his neck, lower back, both knees and both heels but no other injuries. Dr Menogue reviewed the contemporaneous records and noted the absence of neck pain for three weeks after the accident.
Dr Menogue has a history of treatment consistent with the records and reviewed Dr Gronow’s report. Dr Gronow was a treating doctor. The claimant reported taking Brufen at the rate of 1-2 tablets per day.
Dr Menogue reports that the claimant confirmed neck pain coming on three weeks after the accident and that with movement he gets a “low, left-sided ache”.
On examination there were restricted movements in the neck, back and shoulders which Dr Menogue thought were self-limited possibly “due to fear avoidance”. He recorded a number of movements confirmed by goniometer including the shoulders which were basically normal.
Doctor Menogue accepted that the claimant’s neck pain could have developed three weeks later and was therefore causally related as was the lumbar spine. He expressed the view that there was no causal relationship between any heel or knee pain and the accident due to the absence of any complaint and the biomechanics of the accident. He says, “there was a full and normal range of movement when assessing both shoulders, knees, ankles and subtalar joints.” He did not consider there was any assessable impairment.
A later report was obtained from Dr Menogue dated 9 September 2019. The claimant says he was not working now but was working at the time of the accident in a restaurant. He was not driving (he only has a learner permit) and shares some of the domestic duties and there is no external garden or lawn care.
There is a history of the accident and early treatment consistent with that taken by Assessor Herald. The claimant says he had 30 sessions of physiotherapy until mid-2017 and that Dr Gronow was of the view he did not need pain management.
Mr Singh had also had some further psychological treatment and physiotherapy in 2019.
The claimant reported to Dr Menogue that his neck pain commenced some weeks after the accident he described a low ache but no symptoms of pain or loss of sensation in the upper limbs.
The claimant reported more intense back pain, intermittent, mid-line, lower lumbar ache.
The claimant also reported intermittent deep ache in both knees and ‘shaking’ in the calves. The claimant complained of heel pain reduced from what it was two years ago.
Dr Menogue noted the absence of complaints of neck or shoulder pain and that the medical certificate, initial referrals for physiotherapy and workcover certificate from 24 August 2017 refers only to low back pain.
He undertook an examination of the spine and the shoulders and measured the right shoulder movements with a goniometer. He examined the knees and recorded normal ranges of motion.
Dr Menogue considered the accident was a low-speed accident and thought it was “incomprehensible that plantar fasciitis would develop as a result of any accident related injury”.
Dr Menogue noted there was no reference to knee pain in the GP’s notes and no imaging had been undertaken of the knee. While noting the absence of neck complaints for three weeks after the accident he did accept there was an injury along with the lumbar spine.
He considered there were no significant abnormal objective signs and no signs of radicular complaints verifiable or non-verifiable.
He undertook a separate impairment assessment of 0%.
There is a supplementary report dated 24 April 2020. Dr Menogue was asked to review the photographs of the cars involved in the accident. He described the damage as minor and notes that no airbags deployed. He did not alter any of his opinions.
The insurer has attached an investigator’s report which includes statements from two of the drivers. Those statements suggest there may have been three occupants (not four) of the vehicle the claimant was in and that there were four vehicles in total. The picture painted by the statements was one of four vehicles involved with varying amounts of damage and some post-accident confusion on the part of all involved.
RE-EXAMINATION REPORT
Background matters
The claimant attended a re-examination with Assessors McGrath and Maloney on 31 May 2022 at 3.30pm.
Mr Singh is 37 years of age. He emigrated to Australia in 2009 at around the age of 24. He is married and his wife works in the disability area.
Mr Singh has a high school diploma and a Bachelor of Management qualifications from Australia. In Australia, he worked for an Indian kitchen takeaway and as a local Sydney truck driver.
He reports recreational interests of folk dancing and social cricket.
Past medical health
Mr Singh records previous good health. He had some surgery for a nose condition but reported no previous accidents or injuries.
Accident
Mr Singh said he was involved in an accident on 31 December 2016. He was a backseat passenger behind the driver in a vehicle which was hit from behind. He was vaguely aware of lower back discomfort at the time of the accident but overnight further pain developed and he took some medication.
Treatments
He consulted his GP on 2 January 2017 and investigations were requested and he was given a referral for some physiotherapy.
Symptoms and disability
Mr Singh sketched out his pains onto a body diagram. He indicated that he had three areas of concern:
(a) lower neck pain;
(b) pain beneath the left shoulder blade, and
(c) lower back pain.
He completed a disability questionnaire indicating that he had loss of sitting capacity which he rated at two hours. His standing capacity was reduced to 20-30 minutes before the onset of significant lower back pain.
He was asked how he filled in his day. He indicated that he watched TV and YouTube.
Current treatments
Mr Singh has been treated with physiotherapy and an exercise program. He takes the following medications:
(a) Tramadol 1 tablet per day;
(b) Panadol on an as needs basis, and
(c) previously he took Targin a stronger narcotic preparation.
Currently, he does not perform any exercises for his injuries. He will apply some local heat to the affected areas.
When asked about the future, he stated that he hoped to participate in a pain management program. This has not been approved by the insurer.
Examination
His weight is 105kg. He says he was formerly in the 80-85kg range prior to the accident.
All of the affected areas were carefully examined and measurements taken with a goniometer and repeated three times.
Cervical spine
Mr Singh had a reduced range of axial rotation in the neck region. This was uniformly restricted without signs of muscle spasm or guarding was observed by the medical members of the Panel. He did describe sensory disturbance in the left arm, but it did not conform to a dermatomal distribution in the clinical judgment of the Panel.
Neurological examination of the upper limbs was normal. That is, he had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy.
Upper arm circumference was measured at 30cm left and right.
Lower arm circumference was measured at 27cm for the left and 27.5cm for the right which is not a clinically significant difference.
Thoracic spine
Mr Singh reported no symptoms referable to the thoracic spine. He had normal axial rotation and flexion/extension from this region of the spine. There were no sensory or motor deficits related to that area.
Lumbar spine
Mr Singh had a mildly reduced range of motion in lateral flexion and flexion/extension however there were no signs of asymmetry of movement. Muscle guarding or spasm were not observed by the members of the Panel. He also had sensory disturbance into the left leg, but it did not conform to a dermatomal distribution in the clinical judgment of the Panel.
A careful neurological examination of the lower limbs revealed no abnormalities. He had normal straight leg raising and a negative slump test. He had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy.
Upper and lower leg circumference was measured at 44cm both the right and the left thigh and at 34cms for both the left and right calves.
Straight leg raising terminated at 60° in both left and right legs with the onset of lower back pain.
Upper extremity
The active range of motion of the shoulders was observed by both Assessors McGrath and Maloney, measured by goniometer three times for certainty and tabulated below along with the upper extremity impairment for each plane of movement:
Shoulder Movements Active ROM RIGHT Active ROM LEFT Flexion
150°
120°
Extension 40° 50° Adduction 50° 40° Abduction 120° 130° Internal Rotation 70° 80° External Rotation 70° 80°
Consistency
There were no inconsistencies within the examination undertaken by Assessors McGrath and Maloney. That is the repeated measurements were consistent. The measurements and the clinical findings are considered an accurate account of Mr Singh’s pain and dysfunction at the time of the Panel’s examination.
FINDINGS OF THE PANEL
General observations and causation of injury
Mr Singh was involved in an accident which led to slowly developing lower back pain. Over time he has developed further discomfort in the cervical region and shoulder girdle.
Current examination indicates a biomechanical disturbance in the lower back and neck region with extended dysfunction into the shoulder girdle and pelvis. He has developed a localised bursitis in the left glenohumeral joint from investigations. Clinical range of motion in the right is comparable.
There are no signs of nerve involvement in either upper or lower limbs, but he has transient neurological disturbance into the limbs primarily associated with abnormal muscle tension and altered circulation. This is a non-radicular symptom, commonly seen by the Medical Assessors on the Panel with failed rehabilitation and acquired poor motor patterns.
Mr Singh has no knowledge of therapeutic exercise with the potential to improve dynamics and encourage healing. He has become sedentary with a report of increase in weight over time.
Having considered the documentation provided by both parties and the examination of the claimant, the Panel is comfortably satisfied that the claimant sustained an immediate injury to his lower back and the developed neck pain over the next three weeks.
The claimant’s statement reports impaired motion in the right then the left shoulder and in other histories he has reported pain in both shoulders (Dr Conrad and Dr Gronow) or only in the left shoulder (Dr Davis and Dr Menogue). The Panel considers it significant that while there has been some investigation of the left shoulder (the 2019 MRI requested by Mr Singh’s solicitor) there has never been any investigation of the right shoulder and Mr Singh (or his solicitors) have never referred any right shoulder injury for medical assessment.
The Panel is not satisfied that there was any, or any significant frank or direct injury to the left shoulder or left shoulder joint. The claimant’s restricted range of left shoulder movement is, in the view of the medical members of the Panel, due to the claimant’s soft tissue neck injury. This would explain why the ranges of motion reported by examiners have varied over time as the claimant’s neck symptoms have waxed and waned which is to be expected.
The Panel is also not satisfied there was any frank or direct injury to the claimant’s right shoulder or right shoulder joint. There has been no allegation of such injury and the contemporaneous records do not indicate any specific problem with the right shoulder and normal (or near normal) range of motion recorded by experts for both the claimant and the insurer as well as the independent Assessor Gehr. Any restriction to right shoulder movement is, in the clinical judgment of the medical members of the Panel due again to the claimant’s neck injury.
IMPAIRMENT ASSESSMENT
Cervicothoracic spine – neck
The claimant has consistently complained of pain in his neck since soon after the accident. The claimant clearly satisfies DRE category I.
To satisfy DRE category II, the claimant would be required[15] to have:
(a) Guarding – both Assessors McGrath and Maloney did not observe any guarding in the neck;
(b) Dysmetria (non-uniform range of motion) – while Mr Singh demonstrated restricted range of neck movement, both Assessors McGrath and Maloney observed that the restriction was symmetrical or uniform;
(c) Non-verifiable radicular complaints – while Mr Singh indicated some loss of sensation in the upper arms, Assessors McGrath and Maloney observed, after careful examination, the suggestion of loss did not follow a specific nerve root distribution and there was no objective clinical finding of any dysfunction of any nerve root.
[15] See table 7 of the Guidelines.
It therefore follows that Mr Singh does not satisfy DRE category II and has a 0% WPI in respect of his neck.
Lumbosacral spine – lower back
The claimant has also consistently complained of pain in his lower back since soon after the accident. The claimant also clearly satisfies DRE category I.
To satisfy DRE category II, the claimant would be required[16] to have:
(a) Guarding – both Assessors McGrath and Maloney did not observe any guarding in the lower back when Mr Singh was examined;
(b) Dysmetria (non-uniform range of motion) – while Mr Singh demonstrated mild restrictions of movement in flexion and extension, both Assessors McGrath and Maloney observed that the restriction was symmetrical or uniform;
(c) Non-verifiable radicular complaints – while Mr Singh indicated some loss of sensation in the left leg (but not the right), Assessors McGrath and Maloney observed, after careful examination, this did not follow a specific nerve root distribution and there was no objective clinical finding of any dysfunction of any other nerve root. Reflexes, power and sensation was normal and there were no signs of atrophy.
[16] See table 7 of the Guidelines.
It therefore follows that Mr Singh does not satisfy DRE category II and has a 0% WPI in respect of his neck.
Upper limbs – left and right shoulders
The Panel is aware that if there is any impairment to Mr Singh’s shoulders resulting from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[17] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[17] (2011) NSWSC 351.
Mr Singh demonstrated restriction of movement in both the left and the right shoulders. Assessors McGrath and Maloney are of the view that these restrictions are caused by the claimant’s experience of pain in his neck and his desire to avoid further pain and injury.
As the Panel has found that the claimant’s restriction of shoulder motion and subsequent impairment is due to the claimant’s neck injury, no issue of the application of cl 1.50 arises. That clause would only apply when there was an injury to a shoulder joint not an impairment to shoulder motion caused by an injury to the cervical spine.
The table below notes the range of motion (ROM) in terms of degrees and the upper extremity impairment (UEI) percentage for each plane of motion.
Shoulder
MovementsRight Left ROM UEI% ROM UEI% Flexion
150°
2
120°
4
Extension 40° 1 50° 0 Adduction 50° 0 40° 0 Abduction 120° 3 130° 2 Internal Rotation 70° 1 80° 0 External Rotation 70° 0 80° 0 Total UEI% 7% 6%
A UEI of 6% or 7% attracts a WPI of 4% which when both impairments are combined gives 8% WPI which is not greater than 10%.
The Panel has, in the annexure to these reasons summarised the various ranges of motion measurements obtained by various examiners. The Panel notes that the range of motion in both shoulders has varied over time and that the left shoulder range of motion has varied more than the right. The measurements obtained by Assessor Gehr for the left shoulder are wildly different to any of the others and the measurements obtained by Assessors Herald, McGrath and Maloney are much less for both shoulders than any of the earlier examinations.
While this may suggest Mr Singh was not applying his best efforts in the examination before the Panel it may also be that there are psychological symptoms at play or that Mr Singh is significantly deconditioned due to five and a half years of reported inactivity. It is, in the Panel’s view, not necessary to consider this further noting that the claimant has a WPI which is not greater than 10%. If the claimant was not applying his best efforts, he would if applying his best efforts have a WPI of significantly less than 10%. If his psychological symptoms or deconditioning were addressed and his state of fitness improved, he would also be highly likely to be assessed as having a WPI of less than that assessed by the Panel.
CONCLUSION
The Panel notes that Assessor Herald found spasm in the claimant’s neck and non-verifiable radicular symptoms in the lower back neither of which were found by both medical members of the Panel during the course of their examination resulting in 0% WPI for both Mr Singh’s neck and lower back injury. A finding of 0% does not mean the claimant did not sustain injury to those parts of his body in the accident rather that the injuries he sustained do not attract an impairment rating in accordance with the AMA 4 Guides and the Guidelines.
Due to the Panel’s findings regarding the claimant’s shoulder impairments, it therefore follows that the certificate of Assessor Herald is revoked, and a fresh certificate will be issued.
ANNEXURE 1
Left and Right Shoulder movements recorded by various examiners since the date of the accident.
| Left shoulder movements | ||||||
| Examiner | Conrad | Menogue | Gehr | Menogue | Herald | Panel |
| Flexion | 140 | 180 | 70 | 180 | 100 | 120 |
| Extension | 30 | 50 | 20 | 50 | 40 | 50 |
| Adduction | 30 | 40 | 0 | 40 | 40 | 40 |
| Abduction | 140 | 170 | 70 | 170 | 100 | 130 |
| Internal Rotation | No loss | 80 | 30 | 80 | 80 | 80 |
| External Rotation | No loss | 80 | 0 | 80 | 60 | 80 |
| Right Shoulder movements | ||||||
| Examiner | Conrad | Menogue | Gehr | Menogue | Herald | Panel |
| Flexion | Normal | 180 | 170 | 180 | 100 | 120 |
| Extension | Normal | 50 | 50 | 50 | 40 | 50 |
| Adduction | Normal | 40 | 70 | 40 | 40 | 40 |
| Abduction | Normal | 170 | 110 | 170 | 100 | 130 |
| Internal Rotation | Normal | 80 | 70 | 80 | 80 | 80 |
| External Rotation | Normal | 80 | 60 | 80 | 60 | 80 |
0
0
0