Singh v QBE Insurance (Australia) Limited
[2024] NSWPICMP 555
•9 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Singh v QBE Insurance (Australia) Limited [2024] NSWPICMP 555 |
CLAIMANT: | Ishwaramma Singh |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 9 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the injuries caused by the motor accident give rise to a permanent impairment greater than 10%; whether MRI to the cervical spine and right shoulder relates to the injury caused by the motor accident; whether the treatment is reasonable and necessary in the circumstances; claimant a passenger involved in a T-Bone collision with a truck; Medical Review Panel assessed injuries to the cervical spine, lumbar spine, right shoulder, left knee, right wrist; no radiculopathy found; previous right shoulder injury, inconsistencies meant that assessment of right shoulder impairment via measurement not appropriate, analogy adopted; Medical Assessor found a 7% permanent impairment and the treatment request to be related to the injury caused by the motor accident but not reasonable and necessary; Held – Medical Assessment Certificate revoked; requests for MRI are related to the injury caused by the motor accident but are not reasonable and necessary in the circumstances; 6% permanent impairment. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION WHETHER THE DEGREE OF PERSON IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS The Review Panel revokes the certificate of Medical Assessor Home dated 7 December 2023 and issues a new certificate as follows: The following injuires caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:
ASSESSMENT OF TREATMENT AND CARE – CAUSATION The following treatment and care:
RELATES TO THE INJURY caused by the motor accident ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY The following treatment and care:
IS NOT REASONABLE AND NECESSARY in the circumstances MEDICAL ASSESSMENT PERMANENT IMPAIRMENT COMBINED CERTIFICATE WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Review Panel revokes the combined medical certificate dated 30 January 2024 and issues a new combined certificate certifying that the following injuries caused by the motor accident give rise to a permanent impairment of 8% that is not greater than 10% · Cervical spine – soft tissue injury · Lumbar spine – soft tissue injury · Right shoulder – aggravation of pre-existing right shoulder condition associated with kinesiophobia · Left knee – soft tissue injury · Right wrist – soft tissue injury · Fatty liver and deranged liver function tests |
STATEMENT OF REASONS
INTRODUCTION
Ms Ishwaramma Singh (the claimant) suffered injury on 8 October 2020 when she was the front seat passenger of a vehicle, when a “T-bone” collision occurred with the truck.
The claimant subsequently lodged a claim with the compulsory third party insurer of the truck, QBE (Insurance) Australia Limited (the insurer).
The insurer has a liability to pay Ms Singh statutory benefits and/or damages in accordance with the provisions of the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Home who issued a certificate dated 7 December 2023 certifying that the claimant’s physical injuries caused by the motor accident are not greater than 10%.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
The President’s delegate, in a decision dated 19 March 2024, referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[7]
[7] Clause 6.2 of the Guidelines.
Interim directions dated 9 April 2024 were issued to the parties by the Panel requiring the parties to lodge bundles of all documents relied upon in the review. Both parties lodged a bundle in compliance with same.
The Panel convened via teleconference on 7 May 2024. The Panel decided that a re-examination of the claimant was necessary, and an examination was arranged to occur on
29 May 2024 accordingly, to be conducted by Medical Assessor Maloney on behalf of the Panel.
ASSESSMENT UNDER REVIEW
Medical Assessor Home diagnosed the claimant as suffering the following injuries caused by the motor accident:
·Cervical spine: soft tissue injury
·Lumbar spine: soft tissue injury
·Left knee: soft tissue injury
·Right wrist: soft tissue injury
·Right shoulder: aggravation of pre-existing right shoulder condition, marked kinesiophobia
Following examination, Assessor Home assessed the cervical spine as a DRE Cervico-thoracic Category I. In this regard, no muscle spasm or muscle guarding was found. Symmetrical spinal motion was found and no verifiable or non-verifiable radicular complaints.
In respect of the lumbar spine a DRE Category II impairment was found, with a finding of spinal dysmetria and muscle guarding. The clinical presentation did not meet the criteria for radiculopathy (cl 6.138 of the Guidelines). This gave rise to a 5% whole person impairment (WPI).
In respect of the right shoulder, Assessor Home concluded that range of motion was not a reliable measure of impairment due to internal inconsistencies. Utilising an analogy, the Assessor stated: “due to the known pathology (healed rotator cuff repair) there could be an impairment at the right shoulder akin to the presence of mild AC joint synovial hypertrophy.” He found a 2% WPI.
A 0% WPI was found in respect of the right wrist (active range of motion within normal limits) and a 0% whole person impairment of the left knee.
A total WPI of 7% was assessed.
In respect of the referral for an MRI of the cervical spine, Assessor Home found that it relates to the injury caused by the accident. However, concluded that it was no reasonable and necessary in circumstances where there had been no interval change in the symptoms since the MRI of 31 October 2020.
In respect of the referral for an MRI of the right shoulder, Assessor Home found that it relates to the injury caused by the accident. However, given there had been no internal change in symptoms since an MRI of 16 October 2020 it is not reasonable and necessary.
OTHER MEDICAL ASSESSMENTS
Medical assessment of Medical Assessor John Garvey dated 22 January 2024
The Assessor certified a 2% WPI due to an injury of fatty liver and deranged liver function tests caused by the motor accident. The Assessor concluded that the multiple medications taken by the claimant post-accident gave rise to the potential for hepatotoxicity, fatty liver and arrangement of liver of function tests.
Combined Certificate of Medical Assessor Home dated 30 January 2024
The Assessor certified a combined WPI that was not greater than 10%. In his reasons, he combined his own finding of 7% WPI for physical injuries with the 2% WPI found by Medical Assessor Garvey, giving a total WPI of 9%.
SUBMISSIONS
Claimant’s submissions dated 12 April 2023
These submissions were made in support of the original application. The submissions allege accident related injuries as follows:
·Cervical spine (soft tissue injury, non-verifiable radiculopathy, restricted range of motion, pain and discomfort);
·Right shoulder (soft tissue injury, re-injury of right shoulder, marked aggravation of pre-existing pain and disability, kinesiophobia, partial thickness supraspinatus tear and superodistal partial-thickness insertional tear, biceps labral complex tear, mid bursitis, restricted range of movement, pain and discomfort);
·Right wrist (soft tissue injury, tear of the TFCC, ganglion cyst, tenosynovitis, restricted range of movement, pain and discomfort);
·Lumbar spine (soft tissue injury, non-verifiable radiculopathy, restricted range of motion, pain and discomfort);
·Left knee (soft tissue injury, pain and discomfort);
·Psychological injury (post traumatic stress disorder/major depressive disorder/chronic pain disorder), and
·Digestive/live (Consequent digestive symptoms including pain and nausea, high elevated liver enzymes, moderately increased echogenicity and fatty infiltration, moderate diffuse hepatic steatosis).
Insurer submissions dated 3 May 2023
The insurer notes an extensive prior medical history including a prior CTP claim arising from a motor accident of 29 November 1996. The insurer also notes a fall to the right arm, which resulted in a right rotator cuff tear being performed on 19 March 2020 by Dr Baba.
The insurer refers to the medical evidence in respect of the motor accident and then suggests that the claimant’s subjective reported complaints should be “treated with a high level of caution in light of the opinion of Dr Bisht.”
It is submitted that little weight should be given to the report of Dr Dryson due to a failure to deduct the reduced range of movement of the uninjured left shoulder. In addition, it is submitted the doctor failed to consider the issue of causation in respect of the right wrist injury and incorrectly assessed the permanent impairment of the right wrist.
Causation is put in issue by the insurer in respect of the cervical spine with an observation that the claimant denied any pain or symptoms to her cervical spine immediately after the accident. The insurer also notes evidence of pre-accident cervical spine complaint.
It is also submitted that if the issue of causation was found in favour of the claimant, there is objective evidence of pre-existing permanent impairment (DRE III) which should be deducted from any assessment.
In respect of the right shoulder the insurer submits there is clear evidence of pre-existing injury, and the motor accident temporarily aggravated such condition.
The issue of causation is also raised in respect of the right wrist noting there is no record of any symptoms immediately after the accident. In addition, prior complaints to the wrist are noted from the material.
The insurer submits that the alleged injury to the lumbar spine has resolved, consistent with the opinion of Dr Wallace.
Claimant’s review submissions dated 12 February 2024
It is submitted that the Medical Assessor was in error to engage with the claimant’s submissions. In this regard, it is noted that the claimant had submitted that although she had previous pain in the right shoulder she was making slow and steady progress in terms of reduced pain and functional gains. It is submitted that the Assessor’s findings in respect of the right shoulder that she was not making a steady recovery are inconsistent with the records. The submissions refer to the records of Mt Druitt Hospital and Mr Hicks, Physiotherapist, that purportedly demonstrate functional gains recorded over a short period of time.
The submissions reiterate that there is no denial that the claimant suffered a prior injury, however, the motor accident caused further tearing of the muscle fibres and a substantial aggravation of pain. It is therefore submitted that there were no inconsistencies in the claimant’s presentation.
It is submitted that had Medical Assessor Home found there were no inconsistencies he may have adopted a different approach to the assessment of WPI.
It is further submitted that the Medical Assessor Failed to disclose a path of reasoning and failed to provide adequate reasons in respect of the analogy adopted for the assessment of the right shoulder.
In addition, it is submitted that Assessor Home did not provide adequate reasons for his findings that the claimant’s neck injury is consistent with DRE category I.
Insurer’s submissions dated 4 March 2024
The insurer submits the reasons of Assessor Home clearly indicate that he considered and reviewed the documentation provided by the parties. It is further submitted that it was open to the Assessor to form an opinion that the right shoulder was still restricted at 2 weeks prior to the motor accident as set out in the treating physiotherapist notes.
The insurer submits that the Assessor clearly sets out the inconsistencies he found in respect of the right shoulder, and his application of the relevant clauses of the Guidelines.
The insurer further submits that the Medical Assessor did set out his path of reasoning in respect of his findings of the right shoulder and classification of the neck injury as DRE Category I.
DOCUMENTATION
The Panel has considered all material included in the bundles provided by the parties in compliance with the Panel interim directions.
Medico-legal reports
Dr Dryson, occupational physician, dated 5 April 2022
On examination, the claimant had total immobility of the right shoulder and was unable to move it in any direction.
Dr Dryson assesses a 19% WPI. This includes a 5% WPI of the lumbar spine (DRE Category II), 5% cervical spine (DRE Category II), right wrist 11% WPI as a provisional assessment.
The doctor does not provide a WPI assessment of the right shoulder noting the zero degrees of movement in all directions. He notes that assessment based on range of movement was “not realistic”. He states that the loss of movement is due to kinesiophobia and fear and avoidance. He also notes the significant pre-accident impairment and the accident would “at best represented 20% of total impairment.”
Dr Wallace, orthopaedic surgeon dated 25 July 2022
The doctor reported to the insurer’s legal representatives. The doctor noted the claimant to have no active range of movement at the right shoulder with tenderness and hypersensitivity globally about the right shoulder. It is noted the claimant did not make any effort on strength testing.
Dr Wallace diagnosed a muculoligamentous strain of the cervical and lumbar spines that have now resolved. He considered the right shoulder disability as being due to the pre-existing pathology.
Radiology
MRI right shoulder 30 January 2019 – high grade near full-thickness articular sided tear of the anterior supraspinatus measuring 6 x 6.5mm and constituting up to 80-90% of the cuff thickness. Moderate grade subacromial/subdeltoid bursitis.
MRI right shoulder 19 October 2020 – partial thickness insertional supraspinatus tear 3mm medial lateral x 2mm anteroposterior. Insertional partial-thickness subscapularis tear 4mm superoinferior x 5mm medial lateral. Mild subacromial bursitis noted.
MRI right wrist dated 10 December 2021 – tear of ganglion cyst along volar margin. Degeneration of the scapholunate ligament but without frank disruption. Tiny ganglion cyst along the volar margin of the lunotriquetral interval. Mild ECU tenosynovitis.
Mt Druitt Hospital Physiotherapy
The notes document the claimant receiving physiotherapy treatment. On 19 June 2020. The notes noted a right shoulder rotator cuff repair, bursectomy, acromioplasty and biceps tenotomy on 19 March 2020. On examination, range of motion is recorded as flexion 30 degrees, abduction 30 degrees, extension 35 degrees. Some fear avoidance, and hypersensitive in shoulder soft tissue is noted.
The claimant is noted to have required pain killers to control the pain and she was unable to lie on her right side.
The claimant presented again for treatment on 29 June 2020. The claimant is noted to have aching in her right shoulder. On examination, range of movement is recorded as flexion 70 degrees, abduction 30 degrees, extension 40 degrees.
On 10 July 2020 the shoulder movement is recorded as flexion 80 degrees, extension 40 degrees, flexion 90 degrees.
On 24 July 2020 the movements are recorded as flexion 90 degrees, extension 30 degrees with hyper-sensitivity around shoulder with a fear to move.
A letter from the hospital physiotherapy department dated 23 November 2020 noted the claimant had cancelled multiple appointments after 24 July 2020 and did not make any further appointments since 4 September 2020 and she was therefore discharged from physiotherapy.
Ambulance report
Ambulance officers document the claimant being involved in a T-bone motor accident. The claimant had self-extricated and was walking around. She complained of pain in her right shoulder, left buttocks and lateral left knee pain. She stated that her knees struck the dash board and used her arms to brace herself.
Westmead Hospital
The claimant is documented to have attended the emergency department on the day of the accident, with a history of right shoulder and lumbar pain. Midline lower lumbar tenderness noted. The claimant complained of immediate pain to the right shoulder after the accident due to bracing herself on impact. The existing right shoulder pathology is noted.
The notes also include admission documentation in respect of the claimant’s right rotator cuff repair performed by Dr Mohammed Baba on 19 March 2020.
Treating reports
Dr Nazha, pain specialist
A report of 20 January 2021 notes the rotator cuff repair of March 2020 and a slow but steady improvement, however the motor accident intervened. It is stated that the pain is significantly worse after the accident. She described constant pain affecting her whole shoulder and right upper trapezius muscle with significant reduced range of motion.
A 27 August 2021 report states the right sided shoulder pain was significantly worse with significant sensitivity after the motor accident. Significant reduced range of motion is noted.
Dr Soo, orthopaedic surgeon, dated 18 November 2021
Dr Soo consulted the claimant via telehealth. The claimant complained of restricted range of motion and constant pain in the posterior and lateral aspects of the right shoulder. After considering the examination findings of Dr Nazha, Dr Soo opines the claimant’s symptoms and signs are consistent with likely adhesive capsulitis of the right shoulder. He does not recommend surgery.
General practitioner records
The records of Workers Doctors are noted. Injuries in respect of the motor accident are documented as cervical spine and lumbar spine strains and right shoulder aggravation in additional psychological symptoms. On 4 November 2021 the claimant was noted to have ongoing pain in the shoulder and lower back with restrictions lifting with right shoulder.
The file of Mt Druitt Medical and Dental Centre are noted. The last consultation recorded in the notes in 14 October 2021 with the claimant complaining of neck pain. On
13 September 2021 cervical spine movement was recorded as three quarters of range. Shoulder movement is recorded as 100 degrees flexion, 40 degrees internal rotation and 90 degrees abduction. A similar record ins made on 27 August 2021.Before the accident a record of 28 April 2020 noted the claimant to be progressing well after surgery with improved elbow movement however limited shoulder movement due to pain.
The file of Plumpton Medical Centre is noted. The notes begin in 2013 and document various unrelated health ailments. A record of 24 December 2018 notes the claimant suffering a fall on her right upper arm, with complaints of pins and needles down her arm. Ongoing consultations note ongoing symptoms in the right shoulder.
Matthew Hicks, physiotherapist
An allied health recovery request (AHHR) dated 18 August 2020 of physiotherapist,
Matthew Hicks records right neck and shoulder pain. The prior rotator cuff repair is noted. Symptoms in the right wrist are noted with a note an X-ray was required. Lower back pain is complained of with no clear radiculopathy. Also recorded is knee pain.A further AHHR dated 1 March 2021 recorded right shoulder movement as flexion 45 degrees, extension 30 degrees.
A report to the claimant’s GP dated 3 September 2020 notes that pain was playing a significant role in the claimant’s movement capacity. It was noted that she had extremely limited range of movement at the right shoulder both actively and passively due to muscle guarding and pain. Flexion is noted as no more than 20 degrees and external rotation as “not even at neutral”. Wrist range of motion was also noted as poor.
AHHR’s are also provided from Priyanka Wijekumar of Infinity Allied Healthcare. The request dated 26 April 2022 records right shoulder movements flexion 10 degrees, abduction 20 degrees with other movements unable to be assessed.
RE-EXAMINATION
MVA 8 August 2020
Mrs Singh attended the medical suites at Commission on 29 May 2024. She was examined by Medical Assessor Moloney. She was unaccompanied.
Pre-accident history
Mrs Singh states that she lives with her husband and has 3 children 2 of which live at home. Her son drove to the appointment today. Prior to injuring her right shoulder Mrs Singh was working full-time as a nurse in an aged care facility .
She sustained a rotator cuff to the right shoulder in 2019 and this was repaired surgically in March 2020. She was not employed at the time of the accident and felt that she had been improving since the surgery but the treating physiotherapist had recorded that there was still marked restriction in range of movement two weeks prior to the accident. Mrs Singh states that she had had no other injuries.
History of motor accident
Mrs Singh was a front seat passenger in a car driven by a husband when their car was T-bones by a truck with the front impact. She was wearing a seatbelt at the time but airbags were not deployed. She states that she put her right hand up onto the dashboard to brace for the impact. She was able to get out of the car and transported by ambulance to Westmead Hospital for assessment. X-rays were clear at the hospital and she went home. She was consulted by her treating GP and an MRI of the right shoulder was organised and physiotherapy continued.
Subsequent history and treatment
Mrs Singh states that after the accident she had low back pain on the left side, left knee, right wrist and shoulder and neck pain. She was also referred to a pain specialist, Dr Nazha. An injection to the right shoulder was organised which gave no benefit. There was also a consultation with the neurosurgeon, Dr Kam who advised that surgery was not needed for her lumbar spine pain. She attended Dr Yi, an orthopaedic surgeon for persisting pain in the right wrist and he organised a cortisone injection which she states gave some benefit.
Current symptoms
Mrs Singh has pain in the right shoulder in a global distribution and neck pain which increases with movement. There was no pain referral to the upper limbs or any radicular complaints. Both of these pains wake her at night resulting in poor sleep. There is weakness in the right wrist and she has trouble holding a cup. There is persistent low back pain which radiates down the left leg to the level of the knee with an ache around the knee joint. Since the accident she is limited walking for 10 minutes which is restricted by low back pain and is no longer driving. She says she does no house work and stays home most of the time
Current treatment
Present medication is gabapentin 300 mg one twice a day, Panadol osteo 2 a day, duloxetine 60 mg a day, melatonin one at night and an antidepressant. She is also taking medication for blood pressure. There is some relief with applying heat packs and Voltaren gel to the shoulder and neck.
No manual therapy is being undertaken at present and she attended her GP when needed. She still consults her psychologist and is involved in a social support group.
Clinical examination
Mrs Singh walked into the rooms with a slow gait and sat comfortably during the interview. The height was measured at 155 cm and weight of 88 kg. She states that she is right-handed.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension side bending and rotation were all 50% of expected range with no asymmetry. No muscle guarding or spasm was noted on palpation but there was generalised tenderness over the paravertebral muscles of the neck and trapezius muscles.
On neurological examination of the upper limbs, reflexes were equal but weak, there was a global decrease in sensation in the right arm compared to the left, which was not dermatomal and no muscle wasting was noted. The circumference of the upper arms 32 cm on the right and 31 cm on the left (10 cm above the olecranon process) and in the upper forearm 26 cm bilaterally (5 cm below the olecranon process). On testing for power, there was normal movement in the left arm but negligible movement in all joint on the right arm due to pain behaviour.
Shoulders
On inspection of the shoulders no muscle wasting was noted that on passive movement there was a resistance at greater than 10° in any range. Active movements were measured using a goniometer and repeated with minimal movement in the right shoulder. Mrs Singh stated that shoulder movement is restricted due to pain in the entire shoulder joint but no referral of pain from the cervical spine.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 10° | 170° |
| Extension | 10° | 40° |
| Adduction | 10° | 40° |
| Abduction | 20° | 170° |
| Internal Rotation | 20° | 70° |
| External Rotation | 20° | 80° |
Lumbar spine
Mrs Singh walked with a slow normal gait but was unable to stand on heels and toes or squat due to imbalance. On testing range of movement flexion/extension was 25% of expected range with side bending 30% of expected range bilaterally with no asymmetry. Straight leg raise when lying was 20° on the left, restricted by pain generalised in the leg and low back and 80° on the right but when seated 80° bilaterally with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, reflexes were equal bilaterally with no sensory changes noted and normal power. No muscle wasting was apparent with the circumference of the lower thighs 51 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 37 cm bilaterally.
Knees
On inspection of the knees no effusions were noted and no ligament laxity on testing. On passive movement no crepitus was detected and active movement near normal range was recorded.
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° | 110° |
| Extension | 0° | 0° |
Wrists
On palpation there was marked tenderness over the dorsum of the left wrist with no effusions noted. Active movement was measured using a goniometer and there was negligible movement in any direction of the right wrist. With passive movement there was resistance at greater than 10° in any direction.
| Wrist Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 30° | 70° |
| Extension | 10° | 70° |
| Radial Deviation | 0° | 30° |
| Ulnar Deviation | 0° | 30° |
Whole person impairment
Cervical spine: soft tissue injury
This injury is a consistent with DRE I classification which is 0% WPI. There was persistent pain with no guarding or spasm noted on palpation and a symmetrical reduction in range of movement with no dysmetria. There were no signs of non-verifiable radicular complaints or signs of radiculopathy in the upper limbs.
Lumbar spine: soft tissue injury
This injury was also consistent with DRE I classification which is 0% WPI. At the time of the examination by the Panel, no guarding or spasm was noted on palpation and on testing range of movement there was a symmetrical reduction with no dysmetria. Assessor Home recorded dysmetria at the time of his examination but this was not observed at the time of our examination. There were no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.
Left knee: soft tissue injury
Left knee was assessed using table 41 of AMA 4th edition which is 0% WPI.
Right wrist: soft tissue injury
The right wrist would usually be assessed by using range of movement. However, at the time of the examination by the Panel there was minimal movement in all planes. Assessor Home had recorded a near normal range of movement 6 months prior to our examination. Mrs Singh could not explain why there had been such a significant difference in that time and there had been no further injuries sustained. It was explained to Mrs Singh that due to this variability that range of movement could not be used to assess impairment and she stated that she understood this. The Panel could not clinically determine why there had been such a significant change in range of movement given that it is nearly 4 years since the motor vehicle accident.
The Panel has determined that the most appropriate method of assessing impairment would be by analogy. Using table 18 the entire wrist is 36% WPI, this is then calculated using table 19 as mild crepitation which is 10% of the joint impairment. The right wrist then is accorded 3.6% which is rounded up to 4% WPI. Assessor Home had determined 0% WPI for the right wrist. This was also, in the Panel’s clinical opinion, the extent of impairment they would expect under the circumstances.
Right shoulder: soft tissue injury
The right shoulder would usually be assessed using range of movement but at the time of the examination by the Panel, there was minimal movement in all planes. Mrs Singh stated that prior to the accident she had recovered from her surgery to the right shoulder and had a normal range of movement. The Panel acknowledges the claimant’s submissions that assert that the claimant was making a steady recovery prior to the accident. However, 2 weeks prior to the accident the treating physiotherapist recorded limited flexion of 90° and noted a fear to move her shoulder. Mrs Singh could not explain this inconsistency when it was put to her by Medical Assessor Maloney.
After the accident, it was reported by Mr Gallardo in September 2021 that there was flexion of 100°, abduction of 90° and internal rotation 40°. In July 2021, he had recorded a flexion of 120° and abduction at 90°. These recordings are similar to those noted prior to the accident. Assessor Home had recorded minimal range of movement of the right shoulder at the time of his examination. Dr Wallace had also recorded minimal movement at the time of his examination. Several other examining doctors had observed fear avoidance behaviour or kinesiophobia and inconsistent clinical presentation.
Due to this inconsistency over time, the Panel has determined that range of movement would not be an appropriate method to assess impairment. Mrs Singh’s explanation was that she is getting worse every day. The Panel has determined that the right shoulder would be best determined by analogy. Assessor Home came to the same conclusion due to this inconsistency. Utilising skill and judgement, it was decided that the most appropriate analogy was using table 18, the WPI over the acromioclavicular joint is 15% and for a mild crepitation this joint using table 19, 10% of 15% is 1.5% which is rounded up to 2% WPI for the right shoulder. This was also in the Panel’s clinical opinion the extent of impairment they would expect under the circumstances.
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA table 73 | Yes | 0% | 0% | 0% |
| 2 | Lumbar spine | AMA table 72 | Yes | 0% | 0% | 0% |
| 3 | Left knee | AMA table 41 | Yes | 0% | 0% | 0% |
| 4 | Right shoulder | AMA table 18, 19, figures 38, 41, 44, MAA guidelines 6.50 | Yes | 2% | 0% | 2% |
| 5 | Right wrist | AMA table 18, 19 and guidelines 6.50 | Yes | 4% | 0% | 4% |
* %WPI = percentage whole person impairment
Determination Regarding the Degree of Permanent Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident
The total percentage permanent impairment for assessed injuries caused by the motor accident is 6%. Therefore, the total WPIis not greater than 10%.
Determination as to treatment and care
The Panel has determined that the motor vehicle caused injuries to the claimant’s right shoulder and cervical spine. Accordingly, the Panel concludes that the referral for MRI of the cervical spine and an MRI of the right shoulder relates to the injury caused by the motor accident.
However, the Panel does not accept that the referral for an MRI to the cervical spine, and a referral for an MRI of the right shoulder is reasonable and necessary. For the cervical spine, there were no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern and no nerve root compression recorded. In this situation, an MRI is not indicated clinically.
The right shoulder had a pre-existing tear which was repaired in March 2020. The treating physiotherapist had recorded significant loss of range of movement 2 weeks prior to the accident and a near identical range soon after the accident. An MRI was done on 19 October 2020 of the right shoulder which reported a continual supraspinatus tear and an additional subscapularis tear. Repeating another MRI is not clinically indicated in the view of the Panel.
CONCLUSION
Noting the difference in assessment of WPI, the Panel follows that the certificate of Medical Assessor Home should be revoked. A new certificate is attached to the front of these reasons.
The impairment assessed by the Panel is combined with the separate medical assessment certificate provided by Medical Assessor Garvey dated 22 January 2024 pursuant to
s 7.26(8) of the MAI Act. The combined medical assessment certificate dated
30 January 2024 is revoked as the combined permanent impairment is different. A new combined medical assessment certificate is issued certifying that the injuries caused by the motor accident give rise to a permanent impairment that is not greater than 10%.
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