Sorrenti v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 92
•1 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Sorrenti v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 92 |
| CLAIMANT: | John Sorrenti |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL: | Member Susan McTegg Dr Alan Home Dr David McGrath |
| DATE OF DECISION: | 1 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Medical Review; permanent impairment; inconsistency on examination; causation; fractured femurs; shoulder injury; thumb injury; cervical spine injury; lumbar spine injury; hip injury; knee injury; scarring; combined certificate; the claimant suffered injury in a motor vehicle accident on 11 October 2017: the dispute related to the assessment of permanent impairment under the Motor Accident Compensation Act 1999; inconsistency demonstrated on examination and on surveillance; pre-accident evidence of left ulnar neuropathy; no evidence of injury to the ulnar nerve in the accident; Held- cervical spine soft tissue injury, lumbar spine soft tissue injury, right shoulder pain referred from neck caused by accident; injury caused by accident assessed at 7% whole person impairment; injury to the thoracic spine, left arm/ulnar neuropathy and left shoulder not caused by the accident. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Hollo dated 1 June 2021 and issues a new certificate determining that the following injuries were caused by the motor accident but give rise to a permanent impairment which is NOT GREATER THAN 10%: · cervical spine soft tissue injury; · lumbar spine soft tissue injury, and · Right shoulder, referred pain from the neck. The Review Panel finds the following injuries were not caused by the accident: · thoracic spine injury; · left arm/left ulnar neuropathy, and · left shoulder injury. |
STATEMENT OF REASONS
INTRODUCTION
Mr John Sorrenti (the claimant) suffered injury in a motor vehicle accident on 11 October 2017 (the accident).
Insurance Australia Limited T/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Sorrenti under the Motor Accident Compensation Act, 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Sorrenti as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 the
MAC Act. The relevant medical assessment was conducted by Medical Assessor Claire Hollo. She issued a certificate dated 1 June 2021.
An application for review of the medical assessment of Assessor Hollo was lodged on 13 August 2021 within 28 days of the date on which the certificate of Assessor Hollo was made available to the parties.[2]
[2] Section 63(7) of the MAC Act.
On 13 October 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review Panel for a medical assessment constituted under the MAC Act.
Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.
The new review provisions provide that a review Panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.[4] The President’s Delegate referred this application for review to the Panel.
[4] Section 63(3) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[5]
[5] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical assessor.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 21 December 2021 (the first Direction) requiring each party to file an indexed, paginated bundle of documents.
In response to this Direction the solicitor for Mr Sorrenti uploaded four bundles of documents paginated from pages 1 to 340 and marked AD2, AD3, AD4 and AD5 in the portal. However, documents comprising AD5 relate to the application for review of the assessment of Medical Assessor Doron Samuell in respect of psychological injury and are not relevant to this dispute.
The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 757 and marked AD6. The Panel had difficulty opening the surveillance footage filed in the portal by the insurer and marked AD7. At the request of the Panel the insurer re-uploaded the footage of Mr Sorrenti taken on 4 May 2021 and filed in the portal as AD11.
On 7 February 2022 the Panel agreed an examination was required.
The Panel issued a report dated 7 February 2022 addressing documents numbered R22 to R28 included in the insurer’s bundle marked AD6 which had not previously been served on Mr Sorrenti and were not provided to Medical Assessor Hollo. As indicated in that report the Panel agreed to consider documents numbered R22 to R27 but to exclude from consideration the Forensic Accounting Report of Vincent’s Accountants.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
MEDICAL ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Hollo for assessment:
· cervical spine - Neck – musculoligamentous injury and facet joint trauma of the cervicothoracic spine;
· thoracic spine - Upper back - musculoligamentous injury and facet joint trauma of the cervicothoracic spine;
· lumbar spine - Lower back - musculoligamentous injury and facet joint trauma of the lumbosacral spine;
· shoulder - Right shoulder (Nguyen principle) – radiation symptoms to shoulder and arms causing restricted range of movement;
· shoulder - Left shoulder (Nguyen principle) - radiation symptoms to shoulder and arms causing restricted range of movements, and
· left arm – left ulnar neuropathy at the elbow.
Assessor Hollo examined Mr Sorrenti and provided a Certificate dated 1 June 2021. She assessed a 5% whole person impairment (WPI) as a consequence of injury sustained to the neck.
Assessor Hollo found that Mr Sorrenti also sustained the following injuries caused by the accident although those injuries had resolved:
(a) lumbar spinal pain;
(b) right shoulder (Nguyen principle), and
(c) left shoulder (Nguyen principle).
Assessor Hollo found the following injuries were not caused by the accident:
(a) thoracic spine, and
(b) left arm – left ulnar neuropathy at the elbow
Assessor Hollo noted the prior history of two neurological studies of the upper limbs. She also noted the prior history of non-insulin dependent diabetes mellitus documented in November 2014 and the reference to a fall off a roof in 2015.
Dr Hollo noted early documentation of bilateral shoulder pain recorded by Dr Marinucci on 14 November 2017 and subsequent documented complaints at the thoracolumbar junction. She noted numbness in the left third, fourth and fifth fingers was documented on 8 January 2018 in addition to right elbow pain, right neck pain, and lower back pain affecting the left shoulder. There is a referral for MRI imaging of the cervical spine, lumbar spine and left elbow. She documented a vocational history of driving a truck about once monthly. At that stage, pain was more severe on the right side at the neck. Dr Hollo documented pain in the right post-auricular region but no pain in the left side of the neck, head, trapezius or left arm.
Left arm – left ulnar neuropathy at the elbow
Assessor Hollo reported there was a lack of documentation of left arm complaint until 8 January 2018.There was no evidence of assessment of the left elbow while in hospital or subsequently by Dr Marinucci.
Assessor Hollo noted Mr Sorrenti reported left 4th and 5th digit paraesthesia on 20 November 2017. Assessor Hollo noted the MRI of the neck speculated on left C6 nerve impingement, however, she noted the C6 nerve root does not contribute to sensation of the 4th and 5th digits.
There was evidence that Mr Sorrenti had pre-existing pathology at the ulnar nerve noting that the electrophysiological imaging pre-dated the accident.
Assessor Hollo concluded there was no evidence Mr Sorrenti injured his left elbow in the accident.
Thoracic spine
In relation to the thoracic spine Assessor Hollo reported no complaints of pain and found no injury caused by the accident.
Cervical spine
Assessor Hollo found there was no conclusive evidence of an ongoing painful cervical spinal anatomical structure to explain the persisting cervical pain but given the circumstances of the accident and the history of treatment to date concluded Mr Sorrenti had sustained some structural impairment of the cervical spine.
Lumbar spine
In relation to the lumbar spine Assessor Hollo found Mr Sorrenti had a provisional diagnosis of L5/S1 lumbar segmental dysfunction.
She commented that there was no evidence of significant physical disability apparent on the surveillance of 22 July 2020.
Assessor Hollo concluded that Mr Sorrenti may have aggravated his underlying lumbar spinal pathology, but he had recovered from the aggravation.
Right shoulder (Nguyen principle)
Assessor Hollo found there was no evidence of shoulder pathology radiologically to explain the pain or limited shoulder function complained of by Mr Sorrenti. She also concluded there was no evidence from the right C6 transforaminal injection that the neck pathology referred pain to the shoulder.
She stated the surveillance video demonstrated normal functioning of the right shoulder. Assessor Hollo concluded there was no objective medical consistency to support local right shoulder impairment or disability and no evidence of impairment or disability of the right shoulder based on the Nguyen principle.
Left shoulder (Nguyen principle)
Assessor Hollo found a full and painless range of movement of the left shoulder and arm. She found no medical evidence of impairment or disability involving the left shoulder due to local shoulder pathology or based on the Nguyen principle.
SUBMMISSIONS
Claimant’s submissions
Mr Sorrenti provided submissions dated 13 August 2021 in support of the application for review.[9]
[9] AD3 page 9.
In respect of the left ulna neuropathy at the elbow Mr Sorrenti has identified the lack of reference in the notes of Dr Marinucci to any ongoing problems with the left arm or hand from September 2015 until the accident. Mr Sorrenti submits that he, in fact, consulted Dr Marinucci on 20 November 2017, following the accident when he complained about the left fourth and fifth finger.
Mr Sorrenti submits there is a temporal connection between Mr Sorrenti’s complaints of numbness in the left fourth and fifth fingers and the accident. Mr Sorrenti submits those symptoms could have been emanating from Mr Sorrenti’s neck, shoulder or ulnar nerve. Mr Sorrenti notes Dr Davis attributed a 1% WPI to the ulnar nerve neuropathy under Chapter 3, Table 11 of the Guides.
In relation to the cervical spine Mr Sorrenti submits that Assessor Hollo misdirected herself in failing to put to Mr Sorrenti what she perceived to be inconsistency between the surveillance footage and Mr Sorrenti’s presentation. Mr Sorrenti also notes that a complaint of neck pain was recorded by Dr Marinucci on 20 November 2017, nine days after the accident.
In relation to the lumbar spine Mr Sorrenti submits Assessor Hollo erred in comparing Mr Sorrenti’s functional and clinical presentation by reference to his presentation in 1986 and during the 1990’s and not to the period immediately prior to the accident. It is also submitted that Assessor Hollo relied upon surveillance footage to the disadvantage of Mr Sorrenti without taking that footage up with Mr Sorrenti.
In relation to the right shoulder Mr Sorrenti submits that diagnostic scans, notably the right shoulder ultrasound of 5 September 2018, established rotator cuff damage and bursitis which suggests a frank injury to the shoulder was sustained in the accident. Mr Sorrenti submits Assessor Hollo erred in concluding there was no evidence of shoulder pathology radiologically and in failing to give Mr Sorrenti an opportunity to address the surveillance footage.
In relation to the left shoulder Mr Sorrenti submits it is necessary to distinguish between symptoms emanating from the neck as opposed to an injury in the shoulder. Mr Sorrenti submits that the left shoulder appears to be more likely to be characterised as referred from the neck given the absence of pathology. Mr Sorrenti notes that the presence of sensory disturbance in the ring and little fingers of the left hand has persisted and gives rise to the possibility that those symptoms are referred from the neck as opposed to the elbow.
Insurer’s submissions
The insurer provided submissions dated 26 August 2020 in respect of the permanent impairment application and submissions dated 2 September 2021 addressing the application for review and the decision to be made by the President’s Delegate. Those submissions argue no error was made by Assessor Hollo. In further submissions dated 21 January 2022 the insurer sought, inter alia, to rely upon the Forensic Accounting Report of Vincent’s Accountants to question Mr Sorrenti’s assertions about the post-accident profitability of his business. The 21 January 2022 submissions have not been considered by the Panel.
The insurer submitted Mr Sorrenti had not been forthcoming in disclosing his pre-accident medical history, particularly, his prior complaints affecting his lower back, neck and hands. The insurer also notes Mr Sorrenti was in receipt of the disability support pension from at least 1996 to 1998 and was off work for seven years after the workplace accident.
The insurer also submitted Mr Sorrenti had been inconsistent in the history conveyed to doctors regarding his incapacity:
(a)On 23 October 2019 Dr Davis reported Mr Sorrenti had returned to work but only performed supervisory work.
(b)On 19 May 2020 Dr Smith psychiatrist reported Mr Sorrenti had not returned to work since the accident.
(c)On 20 March 2020 Dr Keller reported he had stepped back from the hand-on side of things and was averaging two days a week taking orders and checking jobs. “He has trouble turning his head to reverse the car and check the blind spot…His shoulders worry him with pain and restricted movement…His pain is exacerbated by elevation of above the horizontal, more so on the right than the left.”
(d)In May 2020 Dr Vickery reported Mr Sorrenti was “no longer walking long distances and he is unable to do physical lifting at work as well as repetitively getting in and out of a vehicle”. He also alleged he was unable to turn his head to the right and left side and was restricted in lifting his right arm past mid chest. He also said his son does it all now although he sometimes goes with him to measure up for a quote.
(e)Demonstrated his physical capacity to perform various tasks when assessed by Ms O’Dwyer in July 2020.
(f)Mr Sorrenti’s travel to Thailand is inconsistent with the history recorded by Ms O’Dwyer that he could not perform sustained sitting.
(g)Dr Keller found grossly inconsistent restriction of motion in the cervical spine, shoulders and lumbar spine.
The insurer submits the test of consistency ought to be applied pursuant to clauses 1.40 and 1.41 of the Guidelines
The insurer noted the alleged level of incapacity was inconsistent with the video surveillance. Further the insurer submits the range of motion demonstrated in the shoulders, lumbar and cervical spine are inconsistent with the examinations of Dr Khan, Dr Davis and Dr Harrington although supportive of Dr Keller’s observations on examination.
Medical Assessor Samuell reported Mr Sorrenti would go into his business two or three times a week to see how things were going and he would go with his son, whilst the insurer submits the surveillance footage shows Mr Sorrenti arriving and leaving the worksite alone and on 4 May 2021 operating a forklift and truck before his son arrived. However, the Panel notes Assessor Samuell’s reported Mr Sorrenti “sometimes” goes with his son on work sites not that he is always accompanied by his son.
The insurer submits less weight should be placed on the opinion of Mr Sorrenti’s medico-legal specialists where they did not have the benefit of considering the complete records of Dr Marinucci.
The insurer relies upon the opinion of Dr Keller who reported gross inconsistencies on examination and concluded Mr Sorrenti had only suffered a temporary exacerbation of pre-existing lumbar spine degenerative changes. He considered that complaints relating to other body parts were not related to the accident.
The insurer also relies upon the opinion of Dr Keller that the ulnar nerve condition was diagnosed following the nerve conduction study in 2015 and predated the accident.
MEDICAL EXAMINATION
Mr Sorrenti was examined by Medical Assessor David Home and Medical Assessor David McGrath on 23 March 2022.
Mr Sorrenti’s history
Mr Sorrenti could not recall his history with clarity.
Whilst he recalled suffering the onset of diabetes mellitus two years ago, the medical file appears to indicate the onset eight years ago. This condition is now controlled with three tablets daily.
He underwent bilateral inguinal hernia repairs in his youth.
He suffered a left forearm fracture at age 10.
Approximately 25 years ago, he suffered injury to his mid-back at the workplace in the course of his work at Boral. He recalled that he suffered a fall whilst manually handling boards. He says that he suffered back pain for a period of seven years. He required physical therapy and spinal injections. He recalls that the pain was predominantly felt in the thoraco-lumbar region.
He recalled that symptoms improved significantly after an 18-month period of osteopathic treatment approximately seven years after the onset of his symptoms.
He recalled that his back was then asymptomatic. He did not recall the use of medication or medical attendances in relation to spinal pain prior to the accident.
He could not recall a fall off a roof documented to have occurred around October 2015.
He could not recall undergoing nerve conduction studies of his upper limbs in 2012 or 2015 or the reason for those investigations.
History of the accident
Mr Sorrenti stated that he was involved in a motor vehicle accident on 11 November 2017 as the seat-belted driver of a Toyota Landcruiser travelling the M1, when a vehicle travelling in the opposite direction jumped over a barrier into the path of oncoming traffic. Although he recalls slamming on his brakes, he could not slow down much prior to impact. His vehicle
T-boned the passenger aspect of the other vehicle. His vehicle was not fitted with air bags. His vehicle was written off with significant front-end damage, although some of the force was taken by a forward-facing towbar. He was able to self-extricate from the vehicle.
Mr Sorrenti believed he injured his shoulders in the accident as a result of holding onto the steering wheel with his arms outstretched bracing for the impact.
Police and ambulance attended. He recalled suffering from symptoms of shock.
Mr Sorrenti was taken from the scene of the crash by a tow truck driver and driven to his home. He was subsequently driven by his son to the Wyong Hospital Emergency Department.
He recalled early symptoms of low back pain and pain about his left shoulder.
Mr Sorrenti underwent CT scan imaging of the thoracolumbar spine. No fractures were found. He was discharged with analgesia and told to undergo follow-up by his general practitioner.
He recalled subsequent review by his general practitioner.
Mr Sorrenti stated that he experienced the onset of neck pain in the days after the accident. He recalled the subsequent development of pain and paraesthesia along the ulnar border of his left forearm. He could not recall the timing of onset of those symptoms.
Mr Sorrenti recalled attending a physiotherapist until the COVIC-19 outbreak in March 2020.
He underwent MRI scans of the cervical spine and lumbar spine.
Mr Sorrenti could not recall the name of his previous treating specialists, although on inquiry he confirmed his attendance on Dr Diwan, neurosurgeon in April 2018.
He was referred on for further imaging. Mr Sorrenti confirmed that he underwent perineural injections in the right and left sides of his neck. He recalled no significant anaesthetic or durable benefit from the procedures.
In 2019 Mr Sorrenti attended Dr Jonathon Parkinson, neurosurgeon for management of a left ulnar neuropathy. He was referred for ultrasound examination to exclude subluxation of the ulnar nerve. There was a subsequent decision to pursue surgical neurolysis of the ulnar nerve. This was performed by Dr Parkinson in late 2019.
Mr Sorrenti reported that the surgery was unsuccessful in alleviating symptoms in his left forearm/hand.
Mr Sorrenti reported he attended a Thai masseur for twice weekly massages, which he continued until the COVID-19 outbreak in March 2020. However, there had been little treatment over the past two years.
Mr Sorrenti described:
· persistent intermittent left-sided neck pain, with restricted motion to the left. His main complaint is of left-sided stiffness;
· intermittent lower back pain, more severe on the right side, with radiation to the back of the right thigh but not below the knee;
· reduced sensibility in the ulnar two digits of his left hand. There is intermittent pain shooting from the left elbow to the ulnar aspect of the left hand, and
· bilateral shoulder discomfort exacerbated by overhead activity and heavy lifting, which he avoids.
Mr Sorrenti described difficulty using his left hand due to exacerbation of medial left elbow pain from manual activity. Consequently, he primarily steers a motor vehicle with his right hand. He reported that he limited lifting to his right hand.
Mr Sorrenti estimated a sitting tolerance of one hour, and a walking tolerance of 90 minutes. There was no disability for crouching, kneeling or stair climbing. He avoids deep bending at the waist. His sleep pattern is disrupted by left upper limb complaints in particular.
There is difficulty dressing in shirts.
Mr Sorrenti estimated he had a capacity to lift a light bag up to five kilograms with his right hand. He does not undertake any domestic chores at his home. He says that he has delegated these to his son. His son undertakes all of the shopping.
Vocational history
Mr Sorrenti reported that he completed high school at aged 14, leaving school due to illiteracy. He subsequently obtained work in spray painting and tiling before working as a forklift operator at Boral for three years before his workplace accident.
Subsequently, he commenced his own business as a wrought iron worker performing the fabrication of balustrades and steel structures.
Mr Sorrenti states following the subject accident, he returned to work in a sporadic fashion. He was initially performing customer service work. He recalled operating the forklift on one day. He does not recall significant manual handling tasks.
Mr Sorrenti said he did not engage in sports prior to the accident. He enjoyed motorbike riding but had not returned to that activity following the accident.
Examination findings
Mr Sorrenti is a 62-year-old, standing 170cm, weighing 116kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature without muscle spasm. There is reduced range of active motion with flexion to four-fifths normal range, extension three-fifths normal range, right rotation four-fifths normal range, left rotation three-fifths normal range, right lateral flexion one-half normal range, left lateral flexion one-half normal range. There is no muscle guarding.
Upper extremities
Neurological examination of the upper extremities reveals normal upper limb power of all muscle groups apart from mild weakness of left little finger abduction. There is reduced sensibility in the ulnar two digits of the left hand consistent with prior ulnar neuropathy. There is relative wasting of the left hypothenar eminence. The deep tendon reflexes are otherwise preserved although reduced in amplitude symmetrically.
Right shoulder
Examination of the right shoulder revealed no observable muscle wasting. The examinee declined active flexion or abduction beyond 100°, citing pain in the superior shoulder girdle.
There was a full range of extension measured at 50°, adduction 50°, external rotation 90°, and internal rotation 80°. Motion is measured with goniometer methods.
Left shoulder
At the left shoulder there is no local muscle wasting. Flexion is performed to 100°, extension 50°, abduction 100°, adduction 50°, external rotation 90°, internal rotation 80°.
Mr Sorrenti resisted passive and assisted active motion beyond the active range demonstrated.
Left elbow
At the left elbow, there is a healed surgical scar without adverse features. Tenderness is elicited to palpation overlying the cubital fossa.
Thoracolumbar spine
Examination of the thoracolumbar spine reveals increased lumbar lordosis due to abdominal obesity. Lumbar flexion is performed to half normal range, extension half normal range, right and left lateral flexion are symmetrically performed to half normal range. Ipsilateral pain is declared during right-sided lumbar lateral flexion.
Tenderness is elicited to palpation overlying the right sacroiliac joint.
Straight leg raise is performed to 60° bilaterally with right-sided back pain declared during straight leg raise on the right. However, La Sègue's sign is negative. A slump test is negative.
Lower extremities
Neurological examination of the lower extremities reveals no muscle wasting. There is normal myotomal power. There is normal sensibility. The deep tendon reflexes are symmetrically preserved.
REVIEW OF MEDICAL DOCUMENTS
Pre-accident medical records
Mr Sorrenti underwent a lumbar spine X-ray on 24 June 1985. No abnormality was detected.
In a report dated 25 June 1986 Dr Waddell, orthopaedic surgeon diagnosed a contusion to the lumbosacral spine after Mr Sorrenti was driving a “dumpy” on or about 30 May 1986 which lurched and fell into a hole on a worksite.[10]
[10] AD6 page 99.
On 1 June 1998 Dr Lyn March, rheumatologist suggested Mr Sorrenti suffered from inflammatory joint disease involving both knees.
In a report dated 17 November 1989 Dr Warwick Bruce reported Mr Sorrenti first injured his thoracic spine four weeks earlier when pulling some large sheets of gyprock.[11] On 8 December 1989 Dr Bruce reported the thoracic pain was associated with left-sided neck pain and occasional left arm paraesthesiae.[12] On 3 January 1990 Dr Bruce noted complaints of lower back pain and on 19 January 1990 Dr Bruce noted there was still tenderness on the left side of the lower rib cage, but Mr Sorrenti was fit to return to light duties.[13]
[11] AD6 page 96.
[12] AD6 page 95.
[13] AD6 pages 73 and 75.
Mr Sorrenti apparently suffered an injury to his ‘mid back’ whilst employed as a forklift driver with Boral Australia on 23 August 1990, confirmed by a medical certificate which accompanied a letter from Taylor & Scott dated 27 February 1991.[14]
[14] AD6 page 52.
Reports from Dr John Ditton, specialist anaesthetist dated 17 July 1990, 15 August 1990 and 4 September 1990 documented persisting constant local pain near the lower border of T12 and an unimpressive response to injections.[15]
[15] AD6 pages 69, 70 and 71.
On 15 October 1990 Dr Edmund Graham reported pain and tenderness of the back and left rib cage.[16] On 7 December 1990 Dr Graham reported an MRI showed a definite haemangioma about T10 level on the right side of the midline in the thoracic spine.[17]
[16] AD6 page 68.
[17] AD6 page 67.
On 11 December 1991 Dr Graham referred to an exacerbation of thoracic back pain. On 3 August 1992 he diagnosed a myofascial pain syndrome of the thoracic spine. Mr Sorrenti was unable to do any work which involved lifting or bending.
On 22 May 1991 Dr Matthew Swann at Prince of Wales Hospital provided a diagnosis of myofascial pain syndrome related to the thoracic spine.[18]
[18] AD6 page 62.
A disability support pension treating doctors report completed by Dr Marinucci dated 29 January 1992 provided a diagnosis of myofascial pain syndrome thoracic spine. He certified Mr Sorrenti could not work as labourer or forklift driver.[19]
[19] AD6 page 58.
On 16 June 1997 Dr March reported Mr Sorrenti had been on a disability pension for the past five years following a back accident at work.[20]
[20] AD6 page 109.
On 7 December 1999 Dr Graham reported an MRI scan showed a very definite haemangioma about T10 level on the right side of the midline in the thoracic spine although Mr Sorrenti’s symptoms were on the left side.
Right knee symptoms were documented in the late 1990s by Dr Warwick Bruce and on 9 August 2003 by Dr Waddell.
On 15 January 2012 the clinical notes report bilateral carpal tunnel syndrome.
Mr Sorrenti underwent Nerve Conduction Studies on 19 February 2013. The report states:
“Reduced amplitude all sensory nerve action potentials.
Slowing of the right median sensory conduction across the wrist. Prolonged right median motor terminal latency. Consistent with moderate right and minor left median nerve lesions in the region of the wrist. Probable additional ulnar sensory branch lesions in the region of the wrist”.
Clinical notes from Wentworthville Medical Centre document a short history of diabetes mellitus in 2015.
On 28 April 2015 Mr Sorrenti attended Wentworthville Medical Centre and reported right lower back pain for three days after lifting a heavy object. He also reported left groin pain for one month after heavy lifting (steel) and he had been limping.[21]
[21] AD6 page 669.
The report of nerve conduction studies undergone on 21 September 2015 states:
“The sensory and motor median nerve responses were within normal limits bilaterally. The ulnar sensory and motor studies showed small amplitude and distal prolongation on the left, when compared to the right.
These findings are consistent with an ulnar nerve entrapment at the level of the elbow on the left.”
On 6 October 2015 Dr Marinucci reported Mr Sorrenti fell off a roof six weeks earlier. He reported a painful left leg and persistent pain in the left groin.[22]
[22] AD6 page 148.
Reports from Dr Katelaris, gastroenterologist indicate Mr Sorrenti has suffered from longstanding diabetes, chronic gastritis, obesity and sleep apnoea.[23]
[23] AD4 pages 129, 134 and 135.
Post-accident medical records
The Discharge Referral from Wyong Hospital documents the accident on 11 November 2017. The emergency department attendance occurred four to five hours after the incident with thoracolumbar spinal pain. There was no cervical spine tenderness reported. There was midline tenderness at T11/12 but no paraspinal tenderness. CT scans of thoracolumbar spine demonstrated no acute fracture.
Mr Sorrenti consulted Dr Marinucci on 13 November 2017 when he reported he was injured in a motor vehicle accident on 11 November 2017. He complained of pain in the thoraco-lumbar region.[24]
[24] AD4 page 107.
On 14 November 2017 Dr Marinucci reported Mr Sorrenti had bilateral shoulder pain noting he “held steering wheel firm”.[25] The medical certificate completed by Dr Marinucci on 14 November 2017 described soft tissue injuries to the shoulders and injuries to the thoraco-lumbar spine.[26] Mr Sorrenti was fit for pre-injury duties, albeit with no lifting and difficulty going up stairs until 13 December 2017.
[25] AD4 page 107.
[26] AD4 page 63.
The Personal Injury Claim Form dated 14 November 2017 reported injury to the mid and lower back and to the left and right shoulder. He also recorded a back injury some 20 years earlier.[27]
[27] AD4 page 60.
Whilst the handwritten records are difficult to read it appears Mr Sorrenti complained of numbness of the 4th and 5th fingers and severe pain at the shoulders on what was believed to be 20 November 2017 even though the entry refers to 20 October 2017. [28]
[28] AD4 page 108.
On 6 December 2017 Five Dock Physio reported “S/MVA 3/52 ago. Left side impact. Shoulder pain and restricted range L>R. Numbness through first 3 fingers in left hand. Lower back also in pain, unable to stand smoothly or lie on the left/back for prolonged periods”.[29] He apparently only attended two physiotherapy sessions.
[29] AD4 page 260.
On 8 January 2018 Dr Marinucci recorded persistent left arm pain and numbness of 3rd, 4th and 5th fingers of the left hand, right elbow pain, right neck pain, lower back pain, clicking left shoulder on rotation. Mr Sorrenti was referred for an MRI of the neck, lumbar spine and left elbow.
Report of Dr Diwan dated 19 April 2018 documents chronic pain issues since the accident with complaints of chronic aches and pains in the neck radiating to both shoulders. It was also associated with pain in the right arm running along the C5/6 dermatomal pattern and further symptoms on the left conforming to a C7/8 dermatomal distribution. There was also lumbosacral pain radiating to the posterior right thigh aggravated by driving. It is documented that Mr Sorrenti managed his metal fabrication business with his son but could not do a lot of physical labour since the accident.
On 1 August 2018 Dr Marinucci recorded Mr Sorrenti still had persisting lower back pain. He also reported severe right shoulder pain. He was unable to elevate that shoulder. He reported pins and needles in the right arm. He was referred for an ultrasound of the right shoulder and a bone scan.
An ultrasound of the right shoulder on 5 September 2018 demonstrated bursitis and recommended injections.
On 26 September 2018 Mr Sorrenti underwent left C7 and right C6 perineural injections with cortisone.
In September 2018 and again on 8 November 2018 Dr Marinucci documented numbness of the right thumb and the 4th and 5th fingers on the left. Mr Sorrenti underwent a CT guided right C6 nerve root injection.
On 16 November 2018 Mr Sorrenti underwent an ultrasound guided right shoulder injection.
On 23 November 2018 Mr Sorrenti underwent a CT guided left C7 nerve root injection.
On 18 December 2018, persistent bilateral shoulder pain was treated with anti-inflammatory medication.
The Allied Health Recovery Request dated 27 February 2019 from osteopath, James Harrison documented findings of stiffness in the neck, pain in the right shoulder and lower back pain with stiffness.
On 1 July 2019, complaints were documented of left-hand paraesthesia of the 4th and 5th fingers.
On 30 August 2019 Mr Sorrenti was reviewed by Dr Jonathon Parkinson, neurosurgeon. He referred to the accident and documented pain in the left arm with paraesthesia in the ulnar aspect of the arm and the ulnar two digits of the left hand. He reported the pain was exacerbated by bumping the left elbow. On 17 September 2019 following an ultrasound Dr Parkinson confirmed the diagnosis of left ulnar neuropathy and recommended ulnar nerve neurolysis.
Dr Parkinson performed an ulnar nerve transposition procedure in October 2019.
Dr Sikander Khan
Mr Sorrenti was reviewed by Dr Sikander Khan, injury management specialist on 6 November 2018 at the request of Brydens Lawyers. He reported following the accident Mr Sorrenti had pain in the neck, lower back and right shoulder. Both hands felt numb as he was holding the steering wheel tightly when the accident occurred. He reported Mr Sorrenti saw Dr Marinucci at Haberfield General Practice, had physiotherapy at Five Dock and remedial massage in Woy Woy twice weekly with only temporary relief. He also reported Dr Diwan recommended conservative management. An ultrasound of the right shoulder had demonstrated bursitis and Mr Sorrenti was due to have injections in the right shoulder and neck. By that stage there were symptoms of pain in the neck, right shoulder and arm, left shoulder and arm and the back.
Dr Khan diagnosed musculoligamentous injuries, facet joint trauma in the cervicothoracic spine, rotator cuff tendonitis/bursitis of the right shoulder, restricted motion in the shoulders and arms, non-verifiable radicular symptoms in both arms and musculoligamentous injury and facet joint trauma of the lumbosacral spine.
Dr John Davis
Mr Sorrenti was assessed by Dr John Davis, occupational physician who provided a report dated 23 October 2019. He reported an earlier back injury some 25 years ago with a significant period of lost time. He recorded significant restriction of range of motion of the cervical spine.
At examination, Dr Davis documented marked restriction of active elevation at both shoulders, restricted neck motion more so to the left side concordant with the findings at the current assessment. He found restricted right-sided spinal mobility and restricted lumbar extension although preserved neurological findings. It was not apparent that Dr Davis had available the previous nerve conduction studies from 2015.
Dr Chris Harrington
Mr Sorrenti was assessed by Dr Chris Harrington, orthopaedic surgeon at the request of the insurer. He provided a report dated 25 March 2019. He reported musculoskeletal problems involving the neck, both shoulders and the lower lumbar spine with paraesthesia in the ulnar aspect of the left upper limb.
He noted ultrasound findings of cuff tendinopathy and bursitis at the right shoulder of 5 September 2018 with X-rays of the cervical spine and lumbar spine showing degenerative changes consistent with his age. He found that although there was restricted motion of the shoulders, he believed this to be coming from the neck.
He diagnosed soft tissue injuries to the cervical spine and lumbar spine but found at presentation there may be exaggeration of complaints and felt that it was difficult to provide a diagnosis for the musculoskeletal algorithm for the perceived invalidity in sedentary lifestyle.
Dr Andrew Keller
Dr Keller assessed Mr Sorrenti at the request of the insurer and provided a report dated 20 March 2020. He documented ongoing treatment with physiotherapy and massage twice weekly. He had attended an osteopath for four months in 2019 without lasting benefit. There had been corticosteroid injections to the right side of the neck on 8 November 2019, to the right shoulder on 16 November 2018 and to the left side of the neck on 23 November 2018. On 5 September 2019, ultrasound of the left elbow was normal. He underwent a left ulnar nerve release at the elbow in November 2019 with brief improvement in symptoms
Symptoms by that stage were of pain in the right side of the neck, the lumbar spine and the right shoulder. There was restricted motion of the right shoulder with full range of motion at the left shoulder. Dr Keller noted increased range of neck and right shoulder motion at other stages during the examination. There was reduced sensibility in the left hand at ring and little fingers. He found marked restriction of spinal mobility. Dr Keller noted that there had been prior nerve conduction studies on 19 February 2013 showing right-sided carpal tunnel syndrome and mild left-sided carpal tunnel syndrome. Further, on 21 September 2015, a nerve conduction study had shown left ulnar nerve entrapment.
Dr Keller found that Mr Sorrenti suffered a lower back injury but did not suffer shoulder injuries or neck injuries because of the accident. He noted the diagnosis of left ulnar neuropathy was made in September 2015, predating the accident
Dr Keller reported “gross inconsistencies in demonstrated restriction of motion and incapacity” observed not only during his own examination but also by reference to the assessment undertaken by Dr Davis on 23 October 2019 and the assessment by Dr Khan on 6 November 2018.
Dr Keller concluded Mr Sorrenti may have suffered a temporary exacerbation of pre-existing lumbar spine degenerative changes and that complaints in other body parts were not related to the accident. He found no ongoing injuries attributable to the accident that require treatment.
Dr Keller provided a further report dated 3 July 2020, having been provided with the clinical records of Dr Marinucci and the report of Dr Harrington. His opinion remained unchanged.
Dawn Piebenga, occupational therapist
Ms Piebenga of Interface assessed Mr Sorrenti at the request of the insurer and provided a report dated 12 May 2020. Ms Piebenga reported Mr Sorrenti displayed restricted movement in his neck, back and right upper limb. She noted his movements were slow and guarded and self-limited by pain.
The photographs attached to the report documented a good range of active motion at the left shoulder although somewhat restricted abduction of the right shoulder.
In a supplementary report dated 10 September 2020 Ms Piebenga noted Mr Sorrenti demonstrated a greater range of movement in the surveillance footage than he reported and demonstrated during her assessment of him on 8 April 2020.
Detta O’Dwyer, occupational therapist
Ms O’Dwyer provided a report at the request of the claimant dated 6 July 2020. She reported Mr Sorrenti was unable to undertake tasks which required bending at the hip, crouching, sustaining neck flexion, prolonged standing, repetitive pushing/pulling, sustained grasp, carrying weighted loads, sustained sitting, prolonged mobility, forward reaching and repetitive hand movements.
Certificate of Medical Assessor Samuell
Medical Assessor Samuell issued a certificate dated 21 May 2021 in which he certified Mr Sorrenti had not sustained a permanent impairment as a result of psychological injury.
Investigations
The Panel reviewed the following imaging:
Plain radiographs of lumbar spine, 1985
Normal.
CT scans of abdomen and pelvis, 16 April 1999
Normal.
CT scans of neck, 4 August 2011
Following removal of abscess. No abscess seen.
MRI scans of cervical spine, 13 March 2018
There is slight reversal of normal cervical lordosis with anterior retro-positioning. There is no prevertebral soft tissue swelling. No bone marrow oedema or fracture identified. At C2/3, no significant disc bulge. There is evidence of mild facet joint arthrosis without significant central or foraminal narrowing. There is C1 and C2 hyperintense lesions within the right margin of the C2 vertebral body which measures 10mm. It is likely an intraosseous hemangioma. At C3/4, there is a disc bulge, slightly eccentric to the right which does result in narrowing of the central canal. There is no cord oedema evident. There is mild bilateral foraminal narrowing. At C4/5, there is disc osteophyte complex evident without significant central or foraminal narrowing. At C5/6, there is a disc osteophyte complex eccentric to the left, extending into the foramen resulting in significant left foraminal narrowing. There is likely impingement of the exiting left C6 nerve root. There is moderate crowding of the right foramen without definite impingement of the right C6 nerve root. At C6/7, there is a shallow diffuse disc bulge without significant central or foraminal narrowing. At C7/T1, there is no significant disc bulge complex.
MRI lumbar spine, 13 March 2018
The clinical history is severe MVA, 11 November 2017. Severe neck pain left elbow pain and lower back pain.
Findings: At T12/L1, there is mild disc desiccation without a significant posterior disc bulge. There is moderate facet arthrosis. At L1/2, mild disc desiccation without a significant posterior disc bulge. There is mild facet joint arthrosis. At L2/3, mild facet joint arthrosis. At L3/4, mild facet arthrosis. At L4/5, mild facet arthrosis with minimal annulus bulge. At L5/S1, a diffuse disc bulge slightly eccentric to the left with mild bilateral foraminal crowding without definite impingement of the exiting L5 nerve roots although the left L5 does closely approximate the disc within the foramen and just beyond. The lateral recesses are clear. There is mild facet joint arthrosis.
Bone Scan (Dr Morony) - 8 May 2018
Minor activity of uncertain significance associated with left C1/2 articulation. No evidence of active cervical facet joint arthropathy. Normal activity at the cervical disc spaces.
Normal activity through the lumbar spinal joints, lumbar disc spaces and sacroiliac joints.
X-ray cervical and lumbar spine, 8 May 2018.
Cervical spine – there is no significant loss of vertebral body height or biconcavity. There is reversal of the normal cervical lordosis at C5/6 as well as loss of disc height, endplate sclerosis and osteophytosis. No end stability is demonstrated on flexion and extension views.
Lumbar spine – there is no significant loss of vertebral body height or biconcavity. There is minor loss of disc height and endplate sclerosis at T12/L1 and L1/2. The other disc spaces appear reasonably preserved. There is hypertrophy of the facet joints in the lower lumbar spine but no spondylolisthesis. There is no focal destruction of the pedicles or focal or vertebral lesion. The SI joints are normal.
Ultrasound right shoulder, 5 September 2018
There is tendinosis of the supraspinatus without a tear. There is associated moderate bursitis. There is mild insertional tendinosis of the subscapularis. The biceps tendon is intact.
CT-guided right C6 perineural injection was performed 8 November 2018
Ultrasound-guided right shoulder injection was performed 16 November 2018
CT-guided injection to the left C7 nerve root was performed 23 November 2018
Ultrasound left elbow/ulnar nerve, 5 September 2019
No significant abnormality was seen.
Review of surveillance evidence
The Panel had the opportunity to review surveillance evidence.
Dr Keller provided a supplementary report dated 17 March 2021 in which he commented on the surveillance footage. He stated:
161.“On 1/7/20 I observed him driving a ute, pushing a shop door with his right hand, looking over his right shoulder with full neck rotation to the right, neck flexion of 45 degrees, leaning forward resting on his right hand with right shoulder flexion of 120 degrees, able to look up while driving with neck extension of 30 degrees, looking over left shoulder neck rotation to left of 90 degrees.
162.On 6/7/2020 I observed him washing a car using a hose with right shoulder flexion and external rotation of 90 degrees, his neck movements did not appear restricted, he was able to lift a ratchet strap over his head with the right hand showing shoulder flexion greater than 120 degrees, (1322hrs), climbing a ladder with both hands above head and bilateral shoulder flexion of 135 degrees, neck extension more than zero degrees, lower a ladder off a truck with right shoulder flexion approaching 180 degrees.
163.On 10/8/2020 I observed him carrying a moderate weight close to his chest. He was seen driving a forklift loading a large steel part appearing to demonstrate full neck rotation to the left and right at times. While strapping steel to a truck neck rotation to the left and right appeared unrestricted and extension was greater than zero degrees. He was observed driving a truck and attending a worksite wearing a hard hat. He was observed to have a limp favouring putting weight on the left leg”.
In addition to the surveillance referred to by Dr Keller the Panel also viewed surveillance footage taken on 29 April 2021 and 4 May 2021.
On 29 April 2021 Mr Sorrenti was observed to walk with a distinctive limp whilst on 4 May 2021 Mr Sorrenti was seen to operate a forklift, carry a bin from the warehouse whilst walking with a normal gait, sorting and throwing scrap metal into the truck, bending from the waist several times. He also moved the tip truck before moving some fence wire and sections of steel.
In the video footage Mr Sorrenti did not display any apparent restriction of movement of the neck, the low back, or the arms although he was seen to walk with a limp.
The Panel has reviewed the surveillance evidence and the Panel’s findings conform with those set out by Dr Keller.
The surveillance evidence was discussed with Mr Sorrenti. Mr Sorrenti recalls that he was taking Panadeine Forte during the period of surveillance.
Mr Sorrenti recalls driving a forklift on only one day during the period between the accident and the Panel assessment.
The Panel recalls that he was primarily performing customer service work at his workplace.
Mr Sorrenti attests that his range of neck and shoulder motion is greater on some days due to his use of analgesia.
Comments regarding consistency
Mr Sorrenti’s pre-accident past medical history is incomplete.
Mr Sorrenti could not recall a history of undergoing electrophysiological studies of his upper limbs in 2012 and 2015.
He could not recall undergoing a right shoulder injection following the accident.
He could not recall the timing of onset of his left upper limb symptoms following the accident.
Mr Sorrenti’s physical presentation of restricted elevation of both shoulders is inconsistent with the medical records and, in particular, the previously documented range of active motion observed by Assessor Hollo on 1 June 2021, the most recent examination of Mr Sorrenti.
Mr Sorrenti was also advised that the surveillance evidence showed greater range of motion than he had demonstrated during the clinical assessment.
Mr Sorrenti indicated that he was able to move his shoulders to a greater range after taking analgesia such as Panadeine Forte, but he otherwise limited the range of shoulder elevation due to neck pain and local pain at the top of the shoulders.
The Panel found that Mr Sorrenti’s explanation for these inconsistencies did not explain the disparity between the current clinical findings, the medical evidence, the findings of Assessor Hollo and the previous surveillance evidence.
Diagnosis and causation
Mr Sorrenti was involved in the accident in which his vehicle struck head-on the passenger side of a car that had passed over a barrier in the median strip of the M1 into the path of Mr Sorrenti’s vehicle. Mr Sorrenti’s vehicle sustained front-end damage.
Mr Sorrenti was subsequently taken home by a tow-truck driver but later attended Wyong Hospital with early documented complaints of back pain, neck pain and right shoulder pain.
Mr Sorrenti cannot recall the timing of the onset of paraesthesia in his left upper limb, however, it appears that he developed at least neurological symptoms along the ulnar border of the left forearm by January 2018. There is a subsequent diagnosis of ulnar neuropathy.
The Panel did not find Mr Sorrenti suffered an injury to the ulnar nerve at the level of the elbow in the accident. The Panel notes there was no evidence of bruising, swelling or other signs of local trauma to the medial aspect of the left elbow at the time of the accident. Mr Sorrenti had no recollection of injury to the left elbow at the time of the accident and the Panel is not satisfied the accident caused a local contusion of the left ulnar nerve in the cubital tunnel.
The Panel notes that Mr Sorrenti consulted Dr Marinucci reporting numbness in the 4th and 5th fingers and neck and back pain on 20 November 2017. There is no other early documentation of symptoms of left ulnar neuropathy in the claim form nor in the medical records prior to January 2018.
Further, the Panel notes that Mr Sorrenti had undergone electrophysiological studies to the left upper limb on 19 February 2013 and 21 September 2015 with identification of ulnar neuropathy on electrophysiological testing.
Therefore, the onset of left ulnar neuropathy is considered to be a recurrence of a pre-existing left ulnar neuropathy that is not causally related to the accident.
The panel notes Mr Sorrenti's submissions regarding the ulnar neuropathy condition. Despite Mr Sorrenti's submission that there is a lack of reference to ongoing problems with the left hand from September 2015 to the date of accident, this does not exclude a pre-existing condition, as identified on the previous testing.
Further, the panel notes that Mr Sorrenti could not recall his past history of upper limb complaints reliably and finds there is a gap in his history with no explanation as to why he was referred for electrophysiological testing in the past. The panel has considered causation and finds that the criteria for causation set out in clause 1.6 of the Guidelines is not met.
The Panel finds Mr Sorrenti sustained a soft tissue injury to the cervical spine superimposed upon underlying degenerative change.
The Panel finds Mr Sorrenti also sustained soft tissue injury to the lumbar spine. This is causing ongoing intermittent pain.
The current clinical presentation is also consistent with pain arising from the right sacroiliac joint, which was not caused by the accident.
The Panel does find that Mr Sorrenti sustained a material injury to the right shoulder in the accident. The Panel notes Mr Sorrenti’s consistent complaint and treatment referable to the right shoulder dating back to the accident.
Subsequent imaging demonstrated supraspinatus tendinopathy and associated subacromial bursitis, for which a corticosteroid injection was administered.
Mr Sorrenti’s current clinical presentation is more consistent with referred pain from the neck rather than local shoulder pathology.
The Panel found however that Mr Sorrenti’s clinical presentation of restricted motion of the right shoulder was internally inconsistent, and inconsistent with the previous medical record and the surveillance evidence.
The Panel did not find that the degree of restriction presented at this assessment was consistent with injuries arising from the accident, noting that Mr Sorrenti had previously demonstrated a full range of active shoulder motion at the assessment of Assessor Hollo on 1 June 2021.
In relation to the listed left shoulder condition, there is no record of left shoulder injury following the accident.
Mr Sorrenti was photographed demonstrating a full range of left shoulder motion during an Activities of Daily Living assessment on 8 April 2020 by Ms Piebenga and Mr Sorrenti had demonstrated a full range of active shoulder motion at examination by Assessor Hollo on 1 June 2021.
The Panel notes Mr Sorrenti's submission that the left shoulder appears to be more characterised as referred from the neck given the absence of pathology
The Panel did not find that the clinical findings were consistent with local pathology of the left shoulder and nor did the Panel consider that there was likely to be a reliable restriction of left shoulder elevation due to Mr Sorrenti’s neck complaint, noting that Mr Sorrenti was able to demonstrate a full range of active motion on previous occasions.
The Panel found that Mr Sorrenti’s presentation of restricted motion of the left shoulder was inconsistent and could not be used as the basis for an assessment of impairment.
Further, the Panel did not find there was corroborative clinical evidence of significant left shoulder impairment by way of local wasting at the left shoulder or restricted rotation of the left shoulder such as to determine a rateable impairment for the left shoulder condition by analogy.
The following listed injuries are caused by the accident:
· cervical spine soft tissue injury;
· lumbar spine soft tissue injury, and
· right shoulder injury, referred pain from the neck.
The following listed injuries are not caused by the subject motor vehicle accident:
· thoracic spine injury;
· left arm/left ulnar neuropathy, and
· left shoulder injury.
The following injury was not listed and was not caused by the motor vehicle accident:
·injury to the sacroiliac joint.
DETERMINATION
Assessment of permanent impairment
Permanent medical impairment is determined using the methodology set out in the AMA 4 Guides and the Guidelines.
Cervicothoracic spine
There is evidence of spinal dysmetria. The clinical findings for a diagnosis of radiculopathy are not met. Although there are symptoms in the ulnar border of the left hand, these are considered to be related to the ulnar neuropathy as the area of reduced sensibility is confined to the pattern of the ulnar nerve.
There are further clinical features of motor weakness at the ulnar enervated hypothenar muscle. The other clinical findings of radiculopathy required as set out in section 1.138 of the Guidelines are not met as follows:
(a) the Panel did not observe any loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 of the Guidelines);
(b) the Panel did not observe positive nerve root tension signs (see the definitions of clinical findings in Table 8 of the Guidelines);
(c) the Panel did not observe muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 of the Guidelines);
(d) the Panel did not observe muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution, and
(e) the Panel did not observe reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The Panel finds Mr Sorrenti falls into DRE Cervicothoracic Category II which gives rise to a 5% WPI rating.
Lumbosacral spine
The clinical presentation is consistent with a DRE Lumbosacral Category I impairment rating. There are complaints of intermittent low back pain. There is no muscle spasm. There is symmetrical spinal motion (no dysmetria). There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding. Neurological examination is normal.
The Panel finds a 0% WPI rating arises in accordance with the methodology set out in AMA 4, chapter 3, page 102.
Right shoulder
Although there is restricted elevation of the right shoulder at this assessment, motion in all other planes is preserved. The Panel found that the range of active motion demonstrated in flexion and abduction was unreliable when compared to previous evidence including Mr Sorrenti’s presentation on examination by Dr Khan, Dr Davis, Dr Harrington and Assessor Hollo and under surveillance.
Dr Davis observed a marked restriction of active elevation at both shoulders, whilst Dr Harrington believed the restricted motion of the shoulders was coming from the neck although he also suggested Mr Sorrenti exaggerated his complaints.
Although range of motion at the shoulder was reduced, the Panel noted there was no observable wasting and was unable to provide a medical basis for the extent of variability displayed by Mr Sorrenti.
The Panel notes paragraph 1.41 of the Guidelines
“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness”.
Mr Sorrenti did not provide a satisfactory explanation for the variability in observed restriction, such that the Panel concludes that Mr Sorrenti was voluntarily self-limiting his range of shoulder motion. Indeed, Mr Sorrenti conceded he limited the range of shoulder elevation due to neck pain and local pain at the top of the shoulders.
The Panel found that the observed range of shoulder motion could not be attributed to discomfort from the neck or scapular area, which could not, on medical grounds, plausibly give rise to such gross restriction of motion.
At most a neck or scapular injury would cause a mild restriction involving terminal range of elevation. In any case, the observed restriction was so variable that it could not be considered a permanent impairment.
Under clause 1.50.4 of the Guidelines:
‘If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation’.
Further, under clause 1.50.5 of the Guidelines:
“If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present”.
In this case, the Panel determined to assess the shoulder whole person impairment by analogy.
Due to symptom referral from the neck, based on the Nguyen principle there could reasonably be a small impairment of the right shoulder akin to the presence of mild acromioclavicular (AC) joint synovial hypertrophy.
Table 20, page 59, AMA 4 provides 10% joint impairment for mild visibly apparent joint swelling. Table 18, page 58, AMA 4, provides a maximum WPI of 15% for the AC joint. Therefore, 10% of 15% is 1.5% or 2% WPI after rounding.
Therefore, a 2% WPI is present for the right shoulder.
Combined impairment
The combined whole person impairment is 7%WPI.
Body Part or System
AMA Guides/ MAA 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
AMA4 Chapter 3
Page 103
YES
5%
0%
5%
2.
Lumbar spine
AMA4
Chapter 3
page 102
YES
0%
0%
0%
3.
Right shoulder
Figures 38, 41, 44, AMA4,
pages 43, 44, 45
YES
2%
0%
2%
4.
TOTAL
7%
0
7%
* %WPI = percentage whole person impairment
0
0
0