Stephens v AAI Limited t/as GIO
[2024] NSWPICMP 376
•13 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stephens v AAI Limited t/as GIO [2024] NSWPICMP 376 |
| CLAIMANT: | Gregory Stephens |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 13 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Home; the claimant suffered injury in a motor bike accident on 3 March 2019; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, right shoulder, left shoulder and scarring; MA Home assessed 0% WPI for cervical spine, 8% WPI for right shoulder, 1% WPI for left shoulder and 0% WPI for scarring; Held – notwithstanding lack of contemporaneous complaint causation of injury to cervical spine established; Norrington v QBE Insurance (Australia) Ltd; Briggs v IAG Limited trading as NRMA Insurance; aggravation of degenerative changes of right shoulder including rotator cuff tear and need for surgery; no injury to the left shoulder where no complaint, no treatment or no investigation; scarring to right knee caused by abrasions; assessed as DRE cervicothoracic category 1 or 0% WPI; where inconsistency in range of movement of right shoulder demonstrated on examination right shoulder assessed by analogy using the acromioclavicular joint at 3% WPI; right knee scarring assessed under Table for the Evaluation of Minor Skin Impairment as 0% WPI; Medical Assessment Certificate of MA Home revoked; injures caused by accident gave rise to 3% WPI. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Alan Home dated 11 January 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 3% which is not greater than 10%: (a) cervical spine; aggravation of pre-existing cervical spondylosis; (b) right shoulder; aggravation of pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tenodesis, and (c) right knee scarring. 2. The Review Panel determines that the following injury was not caused by the accident: (a) left shoulder – impairment due to the cervical neck pathology. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 3 March 2019 Mr Gregory Stephens (the claimant) was riding his motorcycle when it was struck from behind causing him to fall from the bike and tumble along the road sustaining injury (the accident).
Mr Stephens was 63 years of age at the date of accident and is now 66 years of age.
Mr Stephens has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Stephens under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Stephens as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s physical injury was referred to Medical Assessor Home. He issued a certificate dated 11 January 2024.
EVIDENCE BEFORE THE REVIEW PANEL
The Review Panel (Panel) issued a Direction to the parties on 21 March 2024 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 431 (claimant’s bundle). The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 29 (insurer’s bundle).
In accordance with a Direction made by the Panel the claimant uploaded to the portal the clinical records of Blacktown Family Medical Centre on 7 February 2024 (Blacktown Family Medical Centre).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (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.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
1. “6.6 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.
6.7 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.”
CERTIFICATE OF MEDICAL ASSESSOR HOME, 11 January 2024
The injuries referred to Medical Assessor Home for assessment as to permanent impairment were listed as follows:
·cervical spine – cervical neck strain and aggravation of pre-existing degenerative changes;
·right shoulder – rotator cuff tear;
·left shoulder – impairment due to the cervical neck pathology; and
·skin/scarring right knee.[3]
[3] Claimant’s bundle p 14.
Medical Assessor Home noted the extensive pre-existing history including a fractured pelvis and crush injuries to the lower leg when he was trapped under a 14-tonne truck. In June 2018 Mr Stephens reported a history of right shoulder pain over 30 to 40 years worsening over the past six months. He underwent imaging of the cervical spine in August 2010 and in August 2014. He noted a right shoulder X-ray dated 13 June 2018 demonstrated a displaced fracture in the middle third of the shaft at the right clavicle and widening of the right acromioclavicular (AC) joint. An ultrasound showed a moderately sized full thickness tear of the supraspinatus tendon, with a minor amount of fluid in the subacromial bursa without impingement. Right shoulder pain was documented on 31 August 2018 and on 20 September 2018. An ultrasound of 8 November 2018 confirmed a partial thickness insertional tear of the infraspinatus. Mr Stephens had an injection to the right shoulder on 9 November 2018.
Medical Assessor Home reported Mr Stephens attended Gympie Hospital on 10 March 2019 with complaints of right sided back pain. On 14 March 2019 he attended his general practitioner (GP) complaining of back pain. Mr Stephens reported in May 2019 he attended a doctor in Mackay and was referred for an MRI of the right shoulder. He was referred to Dr Wainwright and on 8 November 2019 underwent a right shoulder rotator cuff repair, subacromial bursectomy, biceps tenotomy and tenodesis. Medical Assessor Home reported due to progressive neck pain he underwent a right C7 spinal injection before referral to a neurosurgeon Dr Laherty in October 2022.
Current symptoms were constant but variable neck pain, intermittent paraesthesia in the radial four digits of both hands and constant right shoulder pain. He reported occasional pain in the left shoulder. He reported he recently developed right knee pain, referred pain to the legs from the lower back and disturbed sleep. On examination Medical Assessor Home reported active cervical flexion to four-fifths normal range, extension four-fifths normal range, right rotation two-thirds normal range, left rotation two-thirds normal range, right lateral flexion half normal range, left lateral flexion half normal range. He reported no muscle spasm and no muscle guarding. The neurological examination of the upper extremities was normal.
Using a goniometer Medical Assessor Home measured the range of active motion of the shoulders as follows:
Shoulder movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90º
160º
Extension
40º
50º
Abduction
90º
50º
Adduction
30º
160º
Internal rotation
60º
80º
External rotation
70º
90º
Medical Assessor Home found no abnormality of the right knee joint. He noted a healed scar three centimetres by two centimetres, with hyperaemia, with reddish appearance. He described the scar as flat with no contour defect, no trophic change, no suture marks and no tethering. It was only visible on close examination.
Medical Assessor Home reported Mr Stephens did not recall any pain at the left shoulder but says he developed left shoulder pain due to overuse. He noted a mild restriction of left shoulder elevation secondary to neck pain based on the principle enunciated in Nguyen v Motor Accidents Authority of New South Wales and Anor.[4] He thought it was plausible that the right shoulder condition was aggravated by the fall in the accident noting the documented right arm abrasions. He concluded the mechanism of injury could cause a neck injury and found on balance the claimant did suffer an aggravation of the underlying cervical spondylosis in the accident. He also noted Mr Stephens suffered an abrasion to the right knee.
[4] Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351.
Medical Assessor Home concluded the following injuries were caused by the accident:
(a) cervical spine: aggravation of pre-existing cervical spondylosis;
(b) right shoulder: aggravation of pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tenodesis;
(c) left shoulder: restricted motion secondary to neck pain (Nguyen case principle); and
(d) right knee scarring.
Medical Assessor Home found intermittent complaints of neck pain, no muscle spasm, symmetrical spinal motion, no verifiable or non-verifiable radicular complaints and no muscle guarding. He assessed a diagnosis-related estimate (DRE) cervico-thoracic category 1 resulting in 0% whole person impairment (WPI). He assessed 8% WPI of the right shoulder but made no deduction for a pre-existing injury where the information was insufficient to determine the pre-existing permanent impairment. He assessed 1% WPI for the left shoulder and 0% WPI for the scarring. The combined whole person impairment rating was 9%.
REVIEW PROCEDURE
Mr Stephens has sought a review of the medical assessment of Medical Assessor Home.
The application was lodged on 8 February 2024 within 28 days of the date on which the Certificate of Medical Assessor Home was made available to the parties.[5]
[5] Section 7.26(1)(b) of the MAI Act.
On 18 March 2024 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 Panel.[6]
[6] Section 7.26 of the MAI 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.
On 30 April 2024 the Panel agreed an examination was necessary.
THE EVIDENCE
Pre-accident treating medical evidence
On 9 August 2010 Dr Roger Johnston, GP referred the claimant for an MRI of the lumbar spine because of pain in the region of L4 spinous process with radiation to both thighs. He requested an MRI of the thoracic spine because of episodic pain in the region of the T5 dermatome and an MRI of the cervical spine because of episodic pain in the region of the C4-5 dermatome.[8]
[8] Claimant’s bundle p 152.
Mr Stephens was hospitalised after a motor vehicle accident where he was trapped under a 14 tonne truck on 8 August 2011. He suffered pelvic fractures and extensive soft tissue injury to the pelvis, right thigh and right leg. He also underwent surgery to remove necrotic tissue from his right leg.
On 9 March 2018 Dr Mohamad Alshurafa reported Mr Stephens had a hurt back, “yesterday or day before got pain, got out of bed, fell on ground and couldn’t get up”. He reported he got back pain three to four times per month.
On 5 June 2018 Dr Cameron Knapp reported right shoulder pain 30-40 years, worsened over last 6 months.[9]
[9] Claimant’s bundle p 167.
On 14 August 2018 Dr Alshurafa reported shoulder osteoarthritis. On 15 August 2018 Mr Stephens had a depo Medrol injection in the right shoulder. On 31 August 2018 Dr Alshurafa reported when lifting the right shoulder Mr Stephens feels a severe shooting pain.
On 25 September 2018 Dr Alshurafa reported worsening chronic right shoulder pain for the past two years with only partial relief from prior steroid injections.[10]
[10] Claimant’s bundle p 130.
Application for personal injury benefits
In the application dated 20 May 2020 Mr Stephens listed his injuries as follows:
“Whiplash, abrasions, shoulder ligaments; internal bleeding.
* Shoulder ligaments required operation by orthopedic [sic] surgeon to repair. 3 months healing, 6 months re-hab.”[11]
Post-accident treating medical evidence.
Ambulance report
[11] Claimant’s bundle p 35.
The report states:
“Walk in pt to casualty room at station. Pt walking, GCS 15, alert and orientated, calm. Pt states at apporx 11.10 while riding his motorbike in convoy, he slowed to avoid hitting cars on the road and was bumped by another rider from behind, came off bike, minor scrapes to helmet, no pinning by bike, no LOC, no impact with stationary object. Pt had wounds cleaned onsite and continued riding for approx. 40 min before self-presenting. … no headache, no dizzy, no nausea, no central spinal pain, no spinal tenderness, no altered sensation, PEARL. E: shallow graze to right arm, both buttocks, both knees…. [sic]”.[12]
[12] Claimant’s bundle p 40.
The secondary survey describes left buttock abrasion/graze, left elbow abrasion/graze, right forearm abrasion/graze, left knee abrasion/graze and right hand abrasion/graze.
Gympie Hospital Emergency Department
On 10 March 2019 Mr Stephens presented to the Emergency Department. The history was recorded as follows:
“presents with right sided back pain
Right paralumbar region
Sudden onset last night, was lying on bed
Worse on sitting and lying, pain on mobility/walking
Able to walk independently with pain
Nil paraesthesia/numbness/weakness to legs
Stated had MBA 1 weeks ago in NSW
Was stationary
Hit from behind
Thrown over the handle bar
Landed on buttock
Went to ambulance station
Had wound dressed – nil ADT (last 10 years ago)
Was sent home as ambulance thought he was well and couldn’t identify any injury
Has been well since then …
o/e haemodynamically well, afebrile …
extensive haematoma right hip [sic]
nil mid line tenderness C/T/L spine
right hip flexion limit due to pain – L3-S1 power 5/5, sensations intact, reflex ++
tender right mid paralumbar region
abdomen soft, non tender [sic]”.[13]
[13] Claimant’s bundle p 106.
A CT scan of the abdomen and pelvis demonstrated a large right psoas muscle haematoma, with retroperitoneal bleed. A pain diagram detailed a graze to the right elbow, to the back of the left elbow, grazes to the knees and bruising to the right buttock. He was discharged the following day.
The claimant saw Dr Chandrika Pazhanivel, GP on 14 March 2019 when she reported the recent presentation to hospital post-accident. She reported a painful lower back and multiple contusions.[14]
[14] Claimant’s bundle p 168.
The claimant saw Dr Low on 21 May 2019 in respect of persistent right shoulder pain. No mention was made of the accident. [15]
[15] Claimant’s bundle p 134.
On 31 May 2019 Dr Low referred the claimant to Dr Wainwright for an opinion “regarding his right shoulder pain – feeling of pain and also sensation of something catching in his shoulder and sharp pain and also has experience of picking things up and dropping”.[16]
[16] Claimant’s bundle p 116.
On 13 June 2022 the claimant underwent a CT guided right C7 nerve root block.[17]
[17] Claimant’s bundle p 356.
On 13 September 2022 the claimant underwent an ultrasound guided injection into the right subacromial/subdeltoid bursa. [18]
[18] Claimant’s bundle p 359.
On 14 November 2022 the claimant underwent an ultrasound guided injection into the right subacromial/subdeltoid bursa.[19]
[19] Claimant’s bundle p 337.
On 15 December 2022 the claimant underwent a CT guided left T1-2 facet joint injection although it was noted that symptoms were localised to the right shoulder.[20]
[20] Claimant’s bundle p 339.
Dr Wainwright, clinical notes
On 5 June 2019 Dr Wainwright documented an inability to lift with the right shoulder, and constant pain.[21] He reported involvement in the motorcycle accident three months earlier reported he landed on the right shoulder, hit from behind. On examination he noted “wasting, swelling and tenderness”.
[21] Claimant’s bundle p 61.
On 8 November 2019 Mr Stephens underwent a right shoulder rotator cuff repair, subacromial bursectomy, biceps tenotomy and tenodesis.[22]
[22] Claimant’s bundle p 51.
Alistair Houghton, physiotherapist, physioplus
The claimant saw Mr Houghton following his right shoulder surgery. On 15 January 2020 he reported the claimant was managing well and his main issue was his neck pain.[23]
[23] Claimant’s bundle p 53.
On 12 February 2020 Mr Houghton reported the claimant had been progressing very well but unfortunately tripped and fell at home the preceding week landing heavily on his right shoulder. He had high levels of pain and a “dead arm” feeling for two to three days but then it started to improve.
On 27 November 2020 Dr Wainwright reported range of motion had improved to 80% as opposed to 40% and the constant pain had gone. Mr Stephens was experiencing occasional pain at night, early fatigue and aching in the shoulder at the end of the day.[24]
[24] Claimant’s bundle p 62.
Dr Richard Laherty, neurosurgeon
In a report dated 31 October 2022 Dr Laherty reported Mr Stephens recalled having a sore neck, right shoulder and right hip.[25] He noted he subsequently developed substantial bruising and had a haematoma in his right loin region. Dr Laherty reported Mr Stephens had shoulder surgery performed subsequently. He reported his symptoms from the neck into the right shoulder girdle and deltoid region have continued. He reported the claimant described pins and needles and numbness that can radiate to the hand. He performed a C7 block. Dr Laherty noted a CT scan demonstrated degenerative changed in the cervical spine, most marked at C5/6 and C6/7.
[25] Claimant’s bundle p 368.
Imaging
CT scan lumbar spine, 19 May 2004 – the findings were reported as follows:
“The lumbar discs at these levels appear intact with no evidence of significant protrusion or extrusion. The overall dimensions of the spinal canal appear adequate at all levels. The neuroforamina also appear adequate on both sides at all levels. Minor end place osteophytes are seen and there are facet joint OA changes, - particularly at L4-5 and L5-S1 levels. Otherwise unremarkable.”[26]
[26] Claimant’s bundle p 235.
X-ray cervical spine, 11 August 2014 – the report reads:
“There is a cervical scoliosis concave to the left associated with rotation of the spine.
There is loss of the normal cervical lordotic curve.
The C6/7 disc space and C7 vertebral body are obscured in the lateral film by overlying soft tissues of the shoulder.
There is narrowing of the C5/6 and C6/7 discs consistent with degenerative disc disease at these 2 disc levels.
Degenerative osteophyte formation is seen arising from the vertebral bodies between C2 and C7.
There are no cervical ribs.
Some calcification is noted within the ligamentum nuchae posterior to C5 and C6.”[27]
[27] Claimant’s bundle p 196.
Lumbar spine and pelvis X-ray, 11 August 2014 – the report reads:
“There is mild rotation of the pelvis and the right hip joint sits minimally higher than the left.
The upper lumbar spine tilts towards the right.
Degenerative osteophyte formation is seen arising from the vertebral bodies throughout the lumbar region.
The intervertebral disc spaces appears within normal limits.
There is no spondylolisthesis.
Both sacroiliac joints and both hip joints appear within normal limits.
Some ossification is seen within the soft tissues inferior to the left inferior public ramus consistent with ossification in a previously torn muscular insertion.”[28]
[28] Claimant’s bundle p 197.
Right shoulder X-ray, 13 June 2018 – the report noted the previously healed, displaced fracture of the shaft of the right clavicle and reported the shoulder joint appeared within normal limits.
Ultrasound right shoulder, 13 June 2018 – the report states as follows:
“Moderate sized, 16 x 8mm, irregular, full thickness tear of the supraspinatus tendon in its mid-region.
No other tendon tear is seen.
The subacromial bursa is not thickened.
A minor amount of fluid is seen in the subacromial bursa.
No impingement is present.
The acromio-clavicular joint is a little unstable.”[29]
[29] Claimant’s bundle p 177.
Ultrasound right shoulder, 8 November 2018 – the report concludes:
“Mild supraspinatus and subscapularis tendinopathy. Small partial thickness tear infraspinatus tendon. Subdeltoid bursal thickening and impingement.”[30]
[30] Claimant’s bundle p 136.
MRI right shoulder, 24 May 2019 – the report concludes:
“AC joint arthropathy. Subacromial bursitis. Partial thickness tear of the mid fibres of the supraspinatus tendon.”[31]
[31] Claimant’s bundle p 115.
MRI right shoulder, 13 March 2020 – the report concludes:
“Mild AC joint degenerative changes. Subacromial bursitis. Partial thickness bursal surface tear of themed fibres of the supraspinatus tendon. Small glenohumeral joint effusion. No full thickness rotator cuff tear.”[32]
[32] Claimant’s bundle p 80.
CT Cervical spine, 23 May 2022 – the findings were reported as follows:
“Scoliosis concave to the left centred at C5/6. There is straightening of the normal lordosis with reversal at C3/4. Alignment is otherwise normal. Craniocervical junction appears normal.”[33]
[33] Claimant’s bundle p 356.
X-ray and ultrasound right shoulder, 1 September 2022 – the report concludes:
“Impression
Moderate sized, full thickness tear of the supraspinatus tendon.
Irregular, unstable, acromio-clavicular joint.”[34]
[34] Claimant’s bundle p 334.
Bone scan, 7 November 2022 – the report concludes:
“Impression:
Multilevel degenerative disc disease most marked at C4/5 and C5/6.
Mildly active facet joint arthritis at C3/4 and C5/6 on the right and C2/3 on the left. Significantly active facet joint arthritis at T1/2 on the left.”[35]
[35] Claimant’s bundle p 337.
CT lumbar spine – the report concludes:
“Spondylosis as indicated. Mild L3-4 and moderate L4-5 canal stenosis. Likely cause of symptoms is impingement of the left L5 nerve root due to neural foraminal stenosis from disc degeneration at L5-S1.”[36]
Medico-legal evidence
[36] Claimant’s bundle p 342.
Dr John Davis, occupational physician
The claimant was assessed by teleconference by Dr Davis who reported on 29 March 2022.[37]
[37] Claimant’s bundle p 371.
In respect of past medical history Dr Davis reported Mr Stephens suffered a pelvic fracture in 2011 and at age 14 broke his right clavicle. He reported he suffered pain in his right shoulder in 2018 and following a cortisone injection his symptoms settled and he was unimpeded in undertaking his normal duties. He also reported stiffness in the neck for which he had sought chiropractic treatment.
Dr Davis reported Mr Stephens was thrown over the handlebars and landed on his outstretched right forearm, elbow and right hip. The following day he returned home. Dr Davis reported the next day Mr Stephens reported to Gympie Hospital with lower back pain and buttock pain. He was diagnosed with a right-sided psoas haematoma and a small retroperitoneal haemorrhage. Dr Davis reported he also suffered at that time with pins and needles in both arms. He reported Mr Stephens developed shoulder pain which progressively increased in intensity. He was subsequently referred to Dr Wainwright and underwent a right rotator cuff repair and subacromial bursectomy on 8 November 2019.
Dr Davis reported generalised cervical pain which radiates to both trapezii and pain in the right shoulder with reduced range of movement. He reported weakness in the right arm.
He reported active range of movement of the cervical spine as follows:
Left rotation
50%
Right rotation
75%
Left side flexion
50%
Right side flexion
50%
Active extension
75%
Flexion
100%.
Dr Davis reported wasting around the right shoulder and depression of the scapula by about 2cm. He reported active range of movement of both shoulders.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 180° Extension 30° 50° Adduction 10° 50° Abduction 90° 180° Internal Rotation 50° 90° External Rotation 50° 90°
Dr Davis reported no symptoms in the right knee but noted the presence of a 4-5cm hyperpigmented traumatic scar where there had been gravel in the knee.
Dr Davis diagnosed mechanical injury to the cervical spine due to aggravation of pre-existing asymptomatic degenerative changes and functional impairment of both shoulders, most significant on the right.
Dr Davis assessed total 11% WPI after deducting 1/3 of the impairment of the right shoulder impairment and 1/10 of the cervical spine and left shoulder impairments.
Dr Nicholas Burke, occupational physician
Dr Burke assessed the claimant for the insurer and reported on 5 July 2022.[38]
[38] Claimant’s bundle p 381.
Dr Burke reported following the accident it was five nights on the road before the claimant returned to his home in Gympie and subsequently attended Gympie Hospital. Dr Burke reported Mr Stephens was off work for approximately three weeks. He saw Dr Low on 21 May 2018 when she reported right shoulder pain and subsequently came under the care of Dr Wainwright.
Dr Burke reported ongoing symptoms relating to the right shoulder. On examination Dr Burke noted no spasm and no guarding in the cervical spine. He noted slight restriction in lateral deviation to left and right of 30º, rotation to the right was to 70º and rotation to the left 60º. He found neurological examination of the upper limbs was normal.
He reported the following active range of motion of both shoulders:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 140° 180° Extension 50° 50° Adduction 50° 50° Abduction 140° 180° Internal Rotation 70° 80° External Rotation 50° 80°
Dr Burke concluded the claimant sustained multiple abrasions affecting his right elbow, both hips and both knees and probably a right psoas haematoma which has resolved. He considered the accident caused an exacerbation of degenerative change affecting the right shoulder and contributed to the need for surgery.
He noted there was no report of any significant neck symptoms at Gympie Hospital, at the Ambulance station or when seen by Dr Low on 21 May 2019 and concluded there was no clinically significant injury involving the cervical spine.
Dr Burke assessed DRE category 1 or 0% WPI for the cervical spine and 2% WPI for the right shoulder after making a deduction of 50%.
Dr Burke provided a supplementary report dated 14 June 2023.[39] He reviewed various documents and concluded there was little contemporaneous evidence to suggest injury to either shoulder or the neck region. He noted the injuries associated with the accident are likely to be the right psoas haematoma which resolved. He stated it was possible there was an exacerbation of some underlying degenerative change affecting the right shoulder although he notes when he was seen at Gympie Hospital a week after the accident there was no report of any symptoms in the right shoulder. Nor was there any report of significant shoulder symptoms when he followed up with his GP on 14 March 2019.
[39] Insurer’s bundle p 14.
Dr Todd Gothelf, orthopaedic surgeon
Dr Gothelf examined the claimant and provided a report dated 10 May 2023.[40]
[40] Claimant’s bundle p 394.
Dr Gothelf reported neck pain as a two on a scale of zero to ten and right shoulder pain which is a three when using the arm. He also reported some minor pain in the left shoulder which he noticed over the last 12 months.
On examination he reported the 6 cm scar of the right shoulder, which was well healed, normal colour, not raised, no widening and no atrophy. Mr Stephens was not bothered by the scar.
On examination of the cervical spine there was no tenderness to palpation, no visible or palpable deformity, no observed muscle spasm or guarding. He noted cervical movement was a fraction of the normal range of motion and there was no cervical non-uniform loss of motion. Dr Gothelf reported a full range of pain-free movement of the elbows and wrists, without crepitus, muscular spasm or tenderness. Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal. He found no wasting or swelling of the upper limbs and the circumferential measurements were equal.
He reported active range of motion of both shoulders as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 60° 140° Extension 30° 20° Adduction 20° 30° Abduction 60° 130° Internal Rotation 60° 40° External Rotation 40° 70°
Dr Gothelf assessed a 0% WPI of the cervical spine. He assessed 7% WPI for the right upper extremity after deducting 1/3 for the pre-existing condition and 7% WPI for the left upper extremity. He assessed a 0% WPI for the surgical scarring resulting in a total WPI of 14%.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 8 February 2024.
The claimant submits Medical Assessor Home assessed a 0% WPI in respect of the cervical spine which accords with no significant clinical findings. However, when he examined the claimant Medical Assessor Home found restricted flexion (80% of normal), restricted extension (80% of normal), restricted right rotation (66% of normal), restricted left rotation (66% of normal), restricted right lateral flexion (50% of normal), and restricted left lateral flexion (50% of normal).
The claimant submits a loss of movement of the left shoulder arising from the cervical injury is an indication of a “significant finding” and must be taken into account in allocating a category of DRE I or DRE 2.
The claimant also notes complaints of radiculopathy to Dr Laverty including “pins and needles, and numbness that can radiate through to include his hand…” which caused the doctor to opine a C5 nerve root concern.
Medial Assessor Home reported the claimant experienced constant but variable neck pain, intermittent paraesthesia in the radial four digits of both hands, constant right shoulder pain, limited motion to the horizontal, an inability to reach behind his back, difficulty lying on his right side at night and occasional pain in the left shoulder.
The claimant notes Dr Davis found asymmetry of cervical spine motion to the right, Dr Bourke found restricted motion in the cervical spine, particularly to the left, Dr Gothelf found marked restricted of right shoulder motion, also restricted motion on the left side, and Dr Laherty reported the CT scans demonstrated degenerative changes in the cervical spine.
The claimant noted on 14 June 2023 Dr Bourke reported there had been no neck symptoms at Gympie Hospital although there had been “pins and needles in arms” at Gympie Hospital.
The claimant submits Medical Assessor Home fell into error where his findings on examination of the neck related loss of movement causing a “Nguyen” impairment to the left shoulder bespeak a significant clinical finding, arising from the cervical spine injury. The claimant submits the category would be, at least DRE 2 which results in a 5% WPI.
Insurer’s submissions
The insurer provided submissions dated 21 February 2024.
The insurer submits there is no error in the certificate of Medical Assessor Home. The insurer produces the relevant guidelines.
· Clause 6.21 of the Guidelines states:
“…the evaluation should only consider the impairment as it is at the time of the assessment.”
· Clause 6.129 states:
“Definitions of clinical findings which are used to place an individual in a DRE category are provided in Table 6.8 A definition of a muscle spasm has been included, however, it is not a clinical finding used ot place an individual in a DRE category”.
· Clause 6.129 states:
“DRE 1 applies when the injured person has symptoms but there are no objective clinical findings by the medical assessor DRE II applies when there are clinical findings made by the medical assessor, as described in the sections ‘Description and Verification’ (pages 102-107, AMA4 Guides) with the amendments in clause 6.125 for each of the three regions of the spine. Note that symmetric loss of movement is not dysmetria and does not constitute and objective clinical finding’.”
The insurer submits the claimant’s symptoms do not meet the criteria for DRE Cervico-thoracic Category II where Medical Assessor Home did not observe:
(a) any muscle guarding;
(b) non-uniform loss of range of motion;
(c) non-verifiable radicular complaints;
(d) radiculopathy, and/or
(e) loss of structural integrity.
The insurer provided submissions dated 20 June 2023 in respect of the dispute as to permanent impairment.[41]
[41] Insurer’s bundle p 6
The insurer detailed the claimant’s extensive pre-and post-accident medical history.
The insurer submits the claimant did not suffer any injury to the cervical spine as a result of the accident noting:
(a) the claimant had pre-existing cervical spine symptoms. An X-ray of 11 August 2014 found narrowing of the C5/6 and C6/7 discs consistent with degenerative disc disease, degenerative osteophyte formation arising from the vertebral bodies between C2 and C7, and dome calcification was noted within the ligamentum nuchae posterior to C5 and C6, and
(b) the claimant did not report any neck symptoms until 19 May 2020 (one year and two months after the accident) when he saw his GP for neck pain with radiation to the right thumb and two fingers.
The insurer submits that the report of Dr Gothelf does not assist where it was based on a history of no pre-accident neck problems. Dr Gothelf made to reference to the X-ray of the pelvis and spine performed on 11 August 2014 which confirmed pathology in the cervical spine thoracic spine and lumbar spine.
The insurer relies upon the opinion of Dr Burke.
In relation to the left shoulder the insurer notes:
(a) there is no medical evidence of any complaints of left shoulder symptoms in the treating records, and
(b) at the time of his assessment with Dr Burke the claimant did not complain of any left shoulder symptoms.
In relation to the right shoulder the insurer acknowledges as a result of the accident the claimant suffered an exacerbation of his right shoulder symptoms. However, the insurer submits any WPI assessment needs to take into consideration the claimant’s extensive and persistent pre-existing symptoms in the right shoulder.
In relation to the right knee the insurer submits there is no assessable impairment and notes:
(a) ambulance officers observed grazes on the claimant’s right knee;
(b) there are limited ongoing complaints of right knee symptoms;
(c) Dr Davis observed a 4-5cm hyperpigmented traumatic scar where there had been foreign body (gravel) in the knee;
(d) it appears Dr Gothelf did not observe any scarring to the claimant’s right knee, and
(e) Dr Burke accepted the claimant suffered abrasions to the right knee.
MEDICAL EXAMINATION
Mr Stephens was examined by Medical Assessor Shane Moloney at the Commission’s medical suite on 29 May 2024. He was accompanied by his wife.
Pre-accident history
There was a past history of a fracture to his pelvis after being hit by truck in 2010. Mr Stephen stated he had recovered from this accident.
There was also a past history of pain in the right shoulder which started in 2018 when a supraspinatus tear was diagnosed and of arthritis in the acromioclavicular joint. This was treated with cortisone injections, the last being on 9 November 2019 four months prior to the accident. Mr Stephens had a history of low back pain and neck pain which was intermittent.
History of the accident
Mr Stephens was riding his Harley-Davidson motorbike with a group of friends. He states one group was slowing down due to cattle on the road over a crest and a couple of other riders who had fallen behind were catching up. One of these riders collided with the rear of his bike at speed causing him to be thrown over the front handlebars and skid down the road. He states he landed on the right side of his body but was able to get up and ride his bike to the next town. An ambulance station at this town treated his abrasions with dressings and he then rode to a motel. He later rode to his hometown of Gympie.
History after the accident
In Gympie he noted a large haematoma on the right flank of his body. He presented himself at Gympie Hospital on 10 March 2019. He was assessed overnight and had a week off work. At another job in Mackay, he had to have a few more weeks off work due to pain.
Due to persistent right shoulder pain, he consulted his GP who referred him to an orthopaedic surgeon Dr Wainwright. Dr Wainwright organised an MRI and then did a surgical rotator cuff repair to the right shoulder. He was off work for a further seven months.
This shoulder was aggravated in March 2020 when Mr Stephens tripped over a garden hose at home. Further investigations reported no changes to the previous surgical correction, and this was confirmed by Dr Wainwright.
Mr Stephens also had persistent neck pain and was referred to Dr Laherty, neurosurgeon who organised a cortisone injection to the right C7 spine level which gave him relief for about two weeks. He also had chronic low back pain and he states that in February 2023 he had an L5 nerve root injection.
Current symptoms
Mr Stephens has a persistent sore neck which often cramps in the left side but is relieved by stretching. He gets pins and needles in both hands particularly in the morning and constant pain in the right shoulder region. There is a poor sleep pattern as he cannot sleep on the right side.
Mr Stephens continues to drive his truck although he says he mainly steers with his left arm. He no longer rides his motorbike which he sold.
Current treatment
At present, Mr Stephens takes two Panadeine Forte at night and four Panadol Osteo per day as well as Naprosyn SR 1000 One-A-Day. He also takes Pre-Gabapentin 300 mg at night. He avoids Panadeine Forte during the day as he is a commercial driver. He gets a massage on a fortnightly basis and consults his GP when needed.
He states that due to persistent pain in the cervical spine, it is becoming too painful to continue work as a truck driver. As a result, he plans to retire as a truck driver in June 2024.
Clinical examination
Mr Stephens is 66 years old. He height is 174cm, and his weight is 108.5kg. He states that he is right-handed. He walked with a normal gait into the rooms and sat comfortably during the interview.
Cervical spine
On testing range of movement, flexion/extension, side bending, and rotation were all 25% of the expected range with no asymmetry. On palpation there was tenderness over the paravertebral muscles bilaterally in the cervical spine and trapezius muscles, but no guarding or spasm was noted.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power. No sensory changes were noted. On testing for a carpal tunnel syndrome, Phalen’s test was mildly positive in both hands with tingling in the fingers. No muscle wasting was apparent with the circumference of the upper arms 31cm bilaterally (10cm above the olecranon process) and at the upper forearms 29cm bilaterally (5cm below the olecranon process).
Shoulders
On inspection of the shoulders there was some wasting of the deltoid muscle on the right and tenderness over the right acromioclavicular joint. No crepitus was noted on passive movement. There was a restriction of movement in both shoulders which Mr Stephens stated was limited due to anterior shoulder pain and pain over both scapulae. There was no referral of pain from the cervical spine with shoulder movement. He also considers that he is now using his left arm more frequently.
Active movement was measured using a goniometer and repeated. The findings were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 100° Extension 40° 40° Adduction 40° 40° Abduction 90° 100° Internal Rotation 70° 80° External Rotation 70° 80°
Medical Assessor Moloney discussed with Mr Stephens the inconsistencies reported when various examiners measured range of movement of the shoulders. Dr Burke and Dr Davis both reported much better flexion of the right shoulder and normal range of movement of the left. Medical Assessor Home recorded near normal range of movement of the left shoulder but a worse range of movement of the right shoulder.
Medical Assessor Moloney explained to Mr Stephens that due to this variability it was not possible to assess impairment by range of movement in the shoulders and he proposed to assess impairment of the shoulder using an analogy. Mr Stephens stated he understood this. When assessing the left shoulder, Medical Assessor Moloney found on testing range of movement there was no referral of pain from the cervical spine in accordance with the principle established by Nguyen.[42]
Scarring right knee
[42] Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351.
There is an irregular scar on the right knee, measuring 3 x 2cm. There is a slight pigmentary change with no contour defect and no trophic changes. No suture marks or tethering were visible. Mr Stephens can localise this scar, but he is not concerned by it.
Consistency of presentation
Other than the inconsistency apparent in the assessment of range of motion of the shoulders Medical Assessor Moloney found the claimant presented in a straightforward manner with no attempt to exaggerate his symptoms.
PANEL DETERMINATION
Causation and diagnosis
Cervical spine
The insurer submits causation has not been established in respect of injury to the cervical spine.
The insurer submits the claimant did not report neck symptoms until 19 May 2020 when he saw his GP for neck pain with radiation to the right thumb and two fingers. However, the Panel notes on 15 January 2020 physiotherapist Alistair Houghton reported neck pain was the main issue.
There was no complaint of neck pain recorded in the report of the NSW Ambulance Service and likewise no complaint recorded when Mr Stephens attended Gympie Hospital Emergency Department on 10 March 2019, one week post-accident. A pain diagram only detailed a graze to the right elbow, to the back of the left elbow, to the knees and to the right buttock. On 14 March 2019 Dr Pazhanivel only recorded a painful lower back and multiple contusions and on 21 May 2019 and 31 May 2019 Dr Low only referenced persistent right shoulder pain. Whilst Mr Stephens underwent a CT guided right C7 nerve root block it was not until 13 June 2022, some three years post-accident.
In Norrington v QBE Insurance (Australia) Ltd[43] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[43] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[44] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”
[44] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[45] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[45] [2016] NSWCA 229, McGiffen.
Even though there is lack of contemporaneous evidence of complaint about an injury to the cervical spine this is not decisive.
The Panel notes in Briggs v IAG Limited Trading as NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[46] His Honour stated at [70]-[72]:
[46] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
In circumstances where the claimant was thrown over the handlebars and skidded down the road the Panel is satisfied the accident could have caused the claimant to sustain an injury to his neck.
The Panel finds on the balance of probabilities the accident was a contributing cause which was more than negligible to the injury sustained by the claimant to his cervical spine having regard to the following:
(a) scientific certainty is not required to establish the legal test as to causation;
(b) there are no recorded complaints pertaining to the neck since 2014;
(c) the fall from the motor bike resulting in significant grazes and a large right psoas muscle haematoma;
(d) the claimant was thrown over the handlebars of his bike and landed on his right shoulder and in all likelihood strained his neck given there was some impact on his helmet which was apparently scratched, and
(e) the claimant’s focus following the accident was on the persistent right shoulder pain and it was not until after the surgery on 8 November 2019 that the claimant’s focus shifted to his neck pain as documented by Mr Houghton on 15 January 2020.
The Panel finds the claimant sustained an aggravation of the pre-existing cervical spondylosis.
Right shoulder
There is no dispute that the claimant suffered an exacerbation of his right shoulder symptoms as a result of the accident.
The tear of the supraspinatus tendon was identified on the ultrasound of 13 June 2018. However, the Panel finds the accident aggravated the degenerative changes including the rotator cuff tear and contributed to the need for surgery.
Left shoulder
The insurer submits causation has not been established in respect of the left shoulder injury.
The insurer notes there is no medical evidence of any complaints relating to the left shoulder in the treating records and when he was assessed by Dr Burke in July 2022 Mr Stephens did not complain about the right shoulder.
On examination Medical Assessor Moloney found no evidence of injury to the left shoulder and concluded the Nguyen principle is not applicable in this case.
The Panel also notes that both Dr Burke and Dr Davis, who reported on 29 March 2022, found a full range of movement of the left shoulder on examination, although the Panel notes Dr Davis diagnosed functional impairment of both shoulders.
Dr Gothelf provided a report dated 10 May 2023 when he stated the claimant reported some minor pain over the left shoulder which he noticed over the preceding 12 months.
Where the claimant fell on the right side at the time of the accident, where he has not sought treatment or undergone any investigations of the left shoulder, and having regard to the inconsistencies apparent on medical examination the Panel is not satisfied on the balance of probabilities that any injury to the left shoulder was caused by the accident.
Right knee scarring
There is no dispute that the claimant sustained scarring to the right knee as a result of abrasions to the right knee caused by the accident.
PERMANENT IMPAIRMENT
Cervical spine
The spine is assessed under Chapter 3 of the AMA 4 Guides in accordance with the DRE method of assessment.
At the time of his examination of the cervical spine, Medical Assessor Moloney found there was pain but there was no dysmetria, no guarding on palpation, no radiculopathy or non-verifiable radicular complaints in the upper limbs. The claimant is assessed as DRE cervicothoracic category 1 giving a 0% WPI.
The possible carpal tunnel syndrome bilaterally is a relatively new occurrence and is not related to the accident.
Right shoulder
The Panel finds the claimant had long term arthritis in the right acromioclavicular joint.
The Panel was not satisfied that the claimant’s shoulder movements on testing were reliable having regard to the inconsistency on range of movement demonstrated on examination by various medical examiners. When measuring active range of movement Dr Burke found flexion of 140º, Dr Davis 120º, Dr Gothelf 60º, Medical Assessor Home 90º and Medical Assessor Moloney 90º.
Consequently, these inconsistencies have led the Panel to conclude that range of motion was not a reliable and valid method for evaluating the claimant’s level of impairment in accordance with clauses 6.50(d) and 6.50(e) of the Guidelines. Accordingly, the Panel proposes to assess the impairment by analogy in accordance with clause 6.24 of the Guidelines.
Mr Stephens had long-term arthritis in the right acromioclavicular joint and the best analogy would be using the right acromioclavicular joint which provides for 15% WPI under Table 18 on page 3/58 of the AMA 4 Guides. The claimant has a moderate impairment due to joint crepitation which under Table 19 on page 3/59 of the AMA 4 Guides equates to a 20% joint impairment. Multiplying the impairment from the joint crepitation by the relative value of the joint this converts to 3% WPI.
Clause 6.31 of the Guidelines provides if there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident then its value should be calculated and subtracted from the current WPI value. Whilst the Panel notes the claimant had experienced pain in the right shoulder and suffered from a pre-existing condition the Panel finds there is no objective evidence of the pre-existing symptomatic permanent impairment at the time of the accident and in accordance with the Guideline its possible presence should be ignored. Accordingly, the Panel does not propose to make any deduction for a pre-existing impairment.
Right knee scarring
The scarring to the right knee is assessed using the Table for the evaluation of minor skin impairment (TEMSKI) chart.
There is an irregular scar on the right knee, measuring 3 x 2 cm. There is a slight pigmentary change with no contour defect and no trophic changes. There are no visible suture or staple marks. Mr Stephens can localise the scar, but he is not concerned by it. There is no effect on any activity of daily living. No treatment is required and there is no adherence.
The Panel finds the best fit is 0% WPI.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Alan Home dated 11 January 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 3% which is not greater than 10%:
(a) cervical spine; aggravation of pre-existing cervical spondylosis;
(b) right shoulder; aggravation of pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tenodesis, and
(c) right knee scarring.
The Panel determines that the following injury was not caused by the accident:
(b) left shoulder – impairment due to the cervical neck pathology.
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