Solis v AAI Limited t/as AAMI

[2024] NSWPICMP 409

DETERMINATION OF REVIEW PANEL

CITATION:

Solis v AAI Limited t/as AAMI [2024] NSWPICMP 409

CLAIMANT:

Bertha Solis

INSURER:

AAMI

REVIEW PANEL

MEMBER:

Hugh Macken

MEDICAL ASSESSOR:

Christopher Oates

MEDICAL ASSESSOR:

Les Barnsley

DATE OF DECISION:

25 June 2024

CATCHWORDS:

MOTOR ACCIDENTS – Review of medical assessment; amended Certificate of Determination; pre-accident medical history; post-accident treatment; permanent impairment determinations; asymmetric loss of active range of motion; non-verifiable radicular complaints; assessment upper extremities; active range of motion; Held – revocation of Medical Assessment Certificate; new Medical Assessment Certificate issued.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT
Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017 (the Act)

1.     The Review Panel revokes the certificate of Medical Assessor Mohammed Assem dated 16 January 2024 and issues a new certificate that:

The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:

(a)    cervical spine – soft tissue injury with referred pain to the left shoulder (Nguyen);

(b)    thoracic spine – soft tissue injury, and

(c)    lumbar spine – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

1. Bertha Solis (the claimant) is a 43-year-old woman who was injured in a motor vehicle accident on 14 September 2020. The vehicle she was driving was struck from the rear by the insured’s vehicle which pushed it into the car in front. The claimant has attended a number of medical assessors since lodging a claim. She has been examined by Medical Assessor Sam Perla (Certificate dated 10 February 2022), Medical Assessor Ian Cameron (Certificate dated 5 May 2022), Medical Assessor Michael Hong (Certificate dated 1 July 2022) and Medical Assessor Rebeck (Certificate dated 10 March 2022).

2. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the 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.

3. The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).

4. Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.

5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.

6. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.

STATUTORY PROVISIONS/GUIDELINES

1. Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.

2. Sections 58 and 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.

3. On 16 January 2024 the claimant was examined by Medical Assessor Mohammed Assem in respect to the whole person impairment consequent on the injuries sustained in the motor vehicle accident. The body parts to be assessed were the cervical spine, lumbar spine, thoracic spine and the left shoulder. In a Certificate dated 16 January 2024 Medical Assessor Mohammed Assem found the following injuries caused by the motor accident give rise to a permanent impairment of 7%.

   ·        cervical spine: soft tissue injury referred pain to the left shoulder, and

   ·        thoracic spine.

4. The claimant sought a review of this certificate, which was opposed by the insurer, and in a certificate dated 2 April 2044 the President’s delegate Ratula Gupta determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.

5. The matter was then referred to the Review Panel who met by Teams on 7 May 2024 and directed that the claimant attend a medical examination on 14 May 2024 before Medical Assessor Christopher Oates and Medical Assessor Les Barnsley. The claimant had all the material which was before Medical Assessor Mohammed Assem.

Reasons

Details of who attended the Assessment

1. Ms Solis attended unaccompanied for re-examination by Medical Assessor Barnsley and Medical Assessor Oates at the PIC Medical Suites on 14 May 2024 as arranged.

2. An accredited Spanish interpreter was present for the entire assessment. 

History 

Pre-accident medical history and relevant personal details

1. Ms Solis came from Peru to Australia in 1996.

2. She did various jobs whilst in Australia and at the time of the accident, was a nursing assistant in an aged care facility. She worked as a casual but on full-time hours.

3. Her previous health was good, with no history of any accident, injury, operation or regular medication.

History of the motor accident

1. Ms Solis said on 14 September 2020, she was driving a Nissan SUV with three children, taking them to school, and whilst stationary at the red light her vehicle was rear-ended by another SUV, shunting it into the car in front. The airbags in her vehicle did not deploy. 

2. The impact caused her to go forwards towards the steering wheel. Her eldest son was seated next to her and her daughter and second son were sitting in the back. She was not knocked out. She was wearing a seatbelt. She does not recall any impact injury and was in no pain at the time of the accident. The seatbelt tensioned tightly at the time of the impact. She was in shock and very concerned about the welfare of her children.

3. No ambulance attended. She called the police, but they did not attend. She reported the accident to them the next day. Her husband arrived at the accident scene after about one hour and drove her to the hospital in his vehicle. Her vehicle was towed away and subsequently repaired.

Summary of relevant medical evidence

1. There is no mention of any prior musculoskeletal injury in the medical notes. Specifically, the unattributed health summary, which appears to have been produced in response to a request from St Joseph’s Medical Centre to Kenyon St medical Centre and printed on 11 February 2020 makes no mention of any musculoskeletal or pain problem (page 501 of the claimant’s bundle). Similarly, the summary from St Joseph’s Medical Centre printed on 22 June 2023 is silent on any relevant background. Certificates from Dr Yasser Mustafa-Moreno note “nil” in response to the question “Details of any pre-existing factors which may be relevant to this condition”. All Commission assessments and medico-legal reports report no prior relevant history.

2. After the accident, she presented to Westmead Hospital. She was noted to have complaints of neck, upper back and left shoulder pain. Because she had experienced a trauma, she was investigated with a “pan scan” which included imaging of the lumbar spine. From the clinical request this would appear to be based on a trauma protocol (page 67, claimant’s bundle). There is some ambiguity in the notes as to whether she had low back pain or upper back pain. The discharge summary states that she had upper back pain (page 65, claimant’s bundle), but the term “back pain” without further descriptor is used on page 68 of the claimant’s bundle. She was advised to wear an Aspens collar.

3. The first general practice notes after the motor vehicle accident are from her first presentation to the Salud Medical Centre on 16 September 2020, two days after the motor vehicle accident, when she complained of neck pain and left shoulder pain. She was noted to have a full range of motion in the shoulder. She was referred to Dr Kanawati, orthopedic spine surgeon (see below).

4. Further consultation took place to issue medical certificates on 24 September 2020, 16 October 2020 and 22 October 2020. No additional clinical data was available from these consultations (page 161, claimant’s bundle) The certificates note the same diagnoses, [sic] – “MNeck, upper back nad Left Shoulder injury”. These exact words and misspellings are reproduced in all certificates covering the period to 20 January 2021 (page 214, claimant’s bundle). The Review Panel lends little weight to these certificates as evidence for the presence or absence of pain outside the mentioned anatomical regions. Low back pain was mentioned in the clinical notes on 18 November 2020.

5. Dr Kanawati, orthopedic spinal surgeon, first saw the patient at the request of Dr Yasser Mustafa-Moreno on the 12 October 2020. Dr Kanawati’s notes include a pictogram which indicates Ms Solis was experiencing pain in the neck radiating to the left shoulder with tingling radiating to the right neck, low back pain and left arm pain. At subsequent review, he considered a cervical MRI scan and the lumbar CT scan from Westmead Hospital and concluded she had no evidence of neural impingement and he did not consider surgery was indicated.

6. Dr Sam Perla, assessed her for determination of a threshold injury on 24 February 2023. He found no evidence for cervical or lumbar radiculopathy and all injuries (cervical spine, thoracic spine, lumbar spine and left shoulder) were assessed to be threshold injuries. The claimant’s complaints were of neck pain radiating to both shoulders, as well as pain in the upper and lower back. The history obtained was of the lumbar spinal pain starting three weeks after the motor vehicle accident. There was no history of right shoulder pain.

7. Medical Assessor Trudy Rebbeck assessed a treatment dispute for the Commission on 17 February 2022. She recorded the symptoms then as being left sided neck and shoulder pain, and left arm pain. On a pain diagram pain is also reported in the low back and along the upper part of the right trapezius. No radiculopathy was detected on clinical examination. There was a full range of motion in the lumbar spine, asymmetric loss of movement in the cervical spine, and normal shoulder movements.

8. Medical Assessor Ian Cameron assessed her in a treatment dispute. He obtained a history of neck, back and left arm pain. He found symmetric loss of movement in the cervical spine, thoracic spine and lumbar spine, and normal upper and lower limb neurological examinations. He noted a full range of motion in both shoulders.

9. Dr Sean Low, occupational physician, prepared a report for the claimant’s solicitor on 4 March 2023. There is no history provided of her early symptoms or their temporal characteristics. He describes her current symptoms as neck pain radiating to her left shoulder girdle, pins and needles affecting the entire left arm, and restrictions of both shoulders. She had thoracic and lumbar back pain. He found asymmetrical loss of movement in the cervical spine with guarding. There was symmetrical loss of movement in the lumbar spine. There were no neurological abnormalities in the upper or lower limbs. Shoulder movements are tabulated below.

   Shoulder ranges of movement by examiner and date

   Right Side in Degrees

Perla 10/03/2022	Rebbeck 10/03/2022	Cameron 05/05/2022	Low 04/04/2023	Assem 16/01/2024
Flexion	180	Full	Full	150	150/120/120
Extension	50	Full	Full	50	50
Abduction	180	Full	Full	150	150/120/120
Adduction	50	Full	Full	50	30/40/30
Internal Rot	90	Full	Full	90	60/60
External Rot	90	Full	Full	90	50/50/60

Left Side in Degrees

Perla 10/03/2022	Rebbeck 10/03/2022	Cameron 05/05/2022	Low 04/04/2023	Assem 16/01/2024
Flexion	130	Full	Full	90	80/70/60
Extension	50	Full	Full	50	20/20/20
Abduction	120	Full	Full	90	80/70/50
Adduction	50	Full	Full	50	20/10/0
Internal Rot	90	Full	Full	90	70/60
External Rot	90	Full	Full	90	50/50/50

History of symptoms and treatment following the motor accident 

1. She later developed low back pain which was worse with prolonged walking and standing. She says the low back pain developed about two or three weeks after the accident and there was no intervening new incident.

2. The examiners asked her about the Claim Form dated 13 October 2020, which had not mentioned low back pain, and she said she truly did not know she hadn’t included low back pain on the form.

3. On 12 October 2020, she saw an orthopaedic spine surgeon, Dr Kanawati, and the pictogram for her attendance indicates pain at the neck radiating to both upper trapezii, and tingling down the left arm to the hand, and also pain in the lower back. Dr Kanawati ordered an MRI scan of the cervical spine and recommended physiotherapy.

4. Over time, the pain has persisted in the same areas but is more intense. Her general practitioner (GP), Dr Moreno, has treated her with analgesics and sent her to physiotherapy.

Details of any relevant injuries or conditions sustained since the motor accident. 

1. Nil relevant. 

Current symptoms 

1. She has persisting neck pain radiating mainly to the left side, to the upper trapezius/ scapula area, and also low back pain. The pain is worse with driving.

2. There is also some mid to upper back pain. There is not much problem on the right side, just some muscular discomfort. She no longer has pins and needles down the left arm, now just in the left hand affecting all fingers intermittently, which is noted when she is at rest.

3. Central low back pain is present with walking and standing still and radiates to the left groin, but there are no radiating pain symptoms or pins and needles affecting the legs.

4. She did not return to work in aged care after the accident and her first job since the accident was from April to May 2022, when she was packing tablets in a factory, but she was standing at a work bench and this caused increased soreness in the back, so she ceased this job. 

5. She got a new job which was lighter, although she does get some left arm pain, in June 2022. She sits to do this assembly job. She works five days per week.

6. With respect to housework, her mother-in-law moved in to help her. Her husband does the yard work. Also present in the house are their three children.

Current and proposed treatment 

1. She has Panadeine Forte as required, about three times a week, and an anti-inflammatory tablet four or five days a week.

2. She no longer has physiotherapy. She gets five sessions per year from Medicare. She is just about to start a course of physiotherapy for 2024 with treatment to the neck and left shoulder gridle area, and middle and upper back.

3. She also sees a psychologist. 

Examination 

General presentation

1. Ms Solis is right hand dominant. Her height was 157cm and weight 71.9kg, and she was of average to solid build.

Cervical spine (cervicothoracic) 

1. On the right side there was no acromioclavicular or glenohumeral or trapezial tenderness. There was tenderness in the left upper trapezius with hypertonicity extending to the left lower paracervical muscles. There was muscle guarding present in the left upper trapezius. There was a mark of chronic hot pack usage on the left shoulder girdle area posteriorly.

2. Flexion was one-half normal and extension was one-third normal. Rotation to the right was one-third normal and to the left was one-half normal. Lateral flexion was one-half normal bilaterally.

3. Power – right equals left, with the left side inhibited by trapezial pain, causing give-way. Reflexes were brisk and symmetrical. Sensation to light touch and pin prick was normal on the right upper limb but on the left was said to be globally reduced, which was a non-dermatomal pattern. 

4. Upper arm girth; right equals left equals 28cm at 10cm above the elbow crease.

5. Forearm girth; right 25cm, left 24cm at 10cm below the elbow crease. This is consistent with stated right-hand dominance. 

6. There were no non-verifiable radicular complaints. The complaints of paraesthesia affecting all fingers of the left hand does not follow a specific spinal nerve root distribution. 

Thoracic spine (thoracolumbar) 

1. There was no guarding. There were non-verifiable radicular complaints. There was no dysmetria. 

2. Thoracic rotation was one-half of normal range bilaterally. There was symmetric reduction in thoracic flexion and extension to one-half normal.

Lumbar spine (lumbosacral) 

1. There was tenderness in the paralumbar area at L5 but no guarding.

2. Flexion and extension were both one-half normal range. Lateral flexion was one-half normal range bilaterally. Rotation was symmetrically reduced by one-half normal range. 

3. Reflexes were symmetrical. Plantar responses were both down-going (flexor). Power in the lower limbs was normal. Sensation in the lower limbs was normal.

4. Straight leg raising on the right side caused complaint of low back pain at 60° and similarly on the left side was possible to 60° but with no complaint of pain. The nerve stretch was negative bilaterally. 

5. Thigh girth; right 47cm, left 46cm at 10cm above the superior patellar pole.

6. Calf girth; right equals left equals 36cm at 10cm below the inferior patellar pole. 

7. There were no non-verifiable radicular complaints.

Upper extremity 

1. Active range of movement measured with a goniometer.

Shoulder Movements
Active ROM measured right	Active ROM measured left
Flexion	180°	70°, 60°, 60°  with complaint of left trapezial pain
Extension	50°	20°, 30°, 30°
Adduction	50°	10°, 10°, 10°
Abduction	180°	60°, 50°, 50°  accompanied by deep breathing with complaint of pain in the trapezial area
Internal rotation	80°	90°, 60°, 90°  with complaint of left trapezial to shoulder discomfort
External rotation	90°	60°, 70°, 60°  with complaint of trapezial pain

Consistency of presentation 

1. The Medical Assessors asked the claimant why the range of left shoulder abduction and flexion was much less than that reported by Dr Low, independent medical examiner (IME), in April 2023. She replied that she was having physiotherapy at that time and that may explain why the range of movement was better then. 

2. She repeated that her condition was getting gradually worse over time. 

Medical imaging

1. The following imaging films were brought to this examination: 

   ·         MRI cervical spine – 21 October 2020 – the Medical Assessors viewed the imaging of X-ray and MRI cervical spine and agreed with report of normal findings in the cervical spine X-ray and slight broad-based posterior C5/6 disc bulge.

   ·         CT lumbar spine – 2 June 2021 – the Medical Assessors viewed the films and agreed with the report which showed some mild multi-level lumbar degenerative changes.

   ·         CT cervical spine – 25 March 2022 – the Medical Assessors viewed the films and found no significant abnormality. 

DETERMINATIONS – PERMANENT IMPAIRMENT 

Diagnosis, causation and reasons 

1. The diagnoses are soft tissue injury to cervical spine, upper thoracic spine and lumbar spine. 

2. The accident was a cause of these injuries because cervical spine and thoracic spine are mentioned in the hospital records and the early GP records of 16 September 2020. 

3. Left shoulder radiation from the neck is also mentioned in the hospital records and GP record of 16 September 2020.

4. Lumbar spine is referred to in the specialist record of 12 October 2020, and the Medical Assessors considered that this was consistent with the history given by the claimant of the onset of low back pain two to three weeks after the accident, and considered that this timeframe was sufficiently contemporaneous to find a temporal association between the accident and the lumbar spine soft tissue injury. 

1. It is possible that in the early days following the accident, her attention was drawn to the more significant areas of pain, namely the neck and upper thoracic spine.

2. The accident was not a cause of specific injury to the left and right shoulder joints. These areas of upper trapezius towards the scapulae, particularly on the left side, were the site of symptoms radiating from the cervical spine. The symptoms were predominantly on the left side but to an extent also involved the right upper trapezius towards the shoulder.

DETERMINATIONS 

Permanent impairment 

Cervical spine

1. There was asymmetric loss of active range of motion and guarding, which are differentiators for diagnosis-related estimate (DRE) Cervicothoracic Category II giving 5% whole person impairment. 

2. As explained earlier, the Medical Assessors did not consider that non-verifiable radicular complaints were present.

3. There were not criteria present to support a diagnosis of cervical radiculopathy, hence a higher DRE category was not given. 

Thoracic spine 

1. At the thoracic spine, there was no dysmetria, no guarding and no non-verifiable radicular complaints, and no radiculopathy, placing her in DRE Thoracolumbar Category I giving 0% whole person impairment.

Lumbar spine 

1. At the lumbar spine, there was no guarding, no non-verifiable radicular complaints, no asymmetric loss of active range of motion, and no radiculopathy. The differentiators present place her in DRE Lumbosacral Category I giving 0% whole person impairment. 

Upper extremities 

1. In the right shoulder, the ranges of movement were full or almost full in all planes, giving rise to no assessable permanent impairment. 

2. The range of movement in this part was greatly improved compared with that reported by the original Medical Assessor, Dr Assem.

3. With respect to the left shoulder, the range of movement was variable when repeated on the date of Medical Panel re-examination, and also inconsistent with that recorded by the original Medical Assessor and by other medical examiners, including Medical Assessor Perla and Medical Assessor Cameron and Medical Assessor Rebeck, who reported a normal range of shoulder motion.

4. In view of this inconsistency, the Medical Assessors decided that active range of motion was not a valid or reliable indicator of permanent impairment and decided to use an analogous condition. 

5. The condition chosen was joint crepitation of the acromioclavicular joint. This was chosen as the most appropriate analogy because this type of condition can cause symptoms and findings, namely pain on attempted elevation of the shoulder, in the shoulder girdle area which is akin to the situation observed on clinical examination today. 

6. The acromioclavicular joint has 25% upper extremity impairment. Crepitation of mild severity gives 10% impairment of the joint. That is 10% of 25% giving 2.5% rounded to 3% upper extremity impairment, which is equivalent to 2% whole person impairment. 

7. Combining 5% from the cervical spine with 2% from the left shoulder under Nguyen, and using an analogy, results in a total impairment of 7% whole person impairment.

8. The Review Panel notes the claimant’s submission regarding causation of the lumbar spine and has determined that the lumbar spine injury was causally related to the accident, after review of the evidence and re-assessment of the claimant. 

9. With respect to the left shoulder, the Review Panel has explained its rationale for using the analogous condition which it chose, to deal with the referred symptoms from the cervical spine towards the left shoulder in calculating an impairment according to the “Nguyen v MAA of NSW and Anor (2011) NSW SC 351“ ruling.

10. The Review Panel has explained why its finding regarding causation of the lumbar spine differs from the original Medical Assessor.

Left shoulder 

1. The Review Panel confirms it undertook three readings of active range of movement of the left shoulder using a goniometer and explained its rationale for choosing the analogous condition of acromioclavicular joint crepitation.