Strbac v Allianz Australia Insurance Limited
[2024] NSWPICMP 428
•2 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Strbac v Allianz Australia Insurance Limited [2024] NSWPICMP 428 |
| CLAIMANT: | Bosko Strbac |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Tania Rogers |
| DATE OF DECISION: | 2 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was waiting at a bus stop and boarded the bus; the driver allegedly opened the door again to enable another passenger to board; the claimant was standing beside the door and allegedly was struck as it opened; claim for injury to left shoulder, left hip, neck and back; the insurer denied liability for the claim and makes no admission that the claimant suffered any injury as alleged; alleged incident not reported by bus driver; medical disputes as to person impairment caused by the accident; Medical Assessor (MA) Khan certified permanent impairment less than 10% (being 8%); Medical Review Panel considered the issue of causation according to the Motor Accident Guidelines and determined permanent impairment on the clinical signs upon examination found at the time of assessment by the Panel; Held – Panel not satisfied that accident caused injury to cervical spine; Panel finds same degree of permanent impairment as MA Khan but on different grounds; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 8 November 2023 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%: · Left upper extremity (shoulder) · Left lower extremity (left hip) · Lumbar spine (b) The motor accident did not cause an injury to the cervical spine. An assessment of the degree of permanent impairment of the cervical spine therefore is not requred. |
STATEMENT OF REASONS
INTRODUCTION
Bosko Strbac (the claimant) was involved in a motor vehicle accident on 1 April 2019. He was waiting at a bus stop. A bus, which was full of passengers, went a few metres past the stop and then halted at traffic lights. The bus driver opened the door and the claimant boarded the bus. As he was standing, the driver allegedly opened the door again, to enable another passenger to board. The claimant says he was struck by the bus door which caused an injury to his left shoulder, left hip, neck and back. He says that he did not feel much pain at the time and completed his journey. He says that, following the accident, he developed pains in his left shoulder and left hip region, which progressed. He consulted his GP and was referred for physiotherapy and specialist treatment.
The insurer disputes that the claimant suffered any injury in the alleged incident. It was not reported by the bus driver. The insurer denied liability for the claim and makes no admission that the claimant suffered any injury as alleged.
Allianz (the insurer) indemnified the owner and/or the driver of the at fault vehicle for liability to pay to the claimant damages and statutory compensation benefits under Motor Accident Injuries Act 2017 (the MAI Act).
The issue in dispute is the degree of permanent impairment that the claimant has suffered as a result of any physical injuries caused by the accident. Causation is in issue. The Review Panel notes that there was late reporting of the alleged neck and back conditions.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2 cl 2(a) of the MAI Act, the claimant was referred for assessment by Medical Assessor Sikander Khan, who certified on 8 November 2023 as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment of 8% WPI and IS LESS THAN 10%:
·Left shoulder – partial tear of supraspinatus and subscapularis, biceps tendonitis and subacromial bursitis.
·Cervical spine – post-traumatic stiffness with dysmetria, facet arthralgia and aggravation of previously asymptomatic lower cervical spondylosis.
·Lumbar spine – aggravation of pre-existing lower back strain injury and pre-existing lumbar spondylosis with radicular complaint for left sciatica.
·Hip – trochanteric bursitis of left hip associated with limp.
Medical Assessor Khan found 8% whole person impairment for the left upper extremity (shoulder). He made no adjustments for pre-existing/subsequent impairment, apportionment or treatment effects.”
Medical Assessor Khan found 0% whole person impairment for the cervical spine, left hip and lumbar spine, on the basis that they were soft tissue threshold injuries.
THE REVIEW
The claimant sought a review of Medical Assessor Khan’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
In relation to the cervical spine, the claimant submitted that Medical Assessor Khan found non-uniform loss of range of movement, which should have led him to make a determination of permanent impairment, in accordance with the AMA 4 Guides. It was submitted that Medical Assessor Khan’s findings were compatible with a specific injury. As he also found non-uniform loss of range of motion, it was submitted that the appropriate finding should have been DRE II, which gives rise to 5% whole person impairment.
In relation to the lumbar spine, it was submitted that Medical Assessor Khan noted that forward flexion and lateral rotation were reduced from normal range, but failed to record his measurements as to range of movement. It also was submitted that Medical Assessor Khan found 0% WPI for the lumbar spine because there was no evidence of radiculopathy and he considered it to be a threshold injury. It was submitted that the appropriate finding was DRE II (5% WPI) which does not require objective signs of radiculopathy.
It was submitted that Medical Assessor Khan wrongly conflated the issues of threshold injury and assessment of permanent impairment.
In relation to the lower extremity, it was submitted that Medical Assessor Khan failed to make his assessment of permanent impairment in accordance with the AMA 4 Guides, as he does not provide recorded findings on range of motion of the hip and again conflated the issue of threshold soft tissue injury with assessment of whole person impairment greater than 0%.
The insurer did not consent nor oppose the review application and did not specifically address the issues raised by the claimant.
President’s delegate Jeremy Lum issued a Determination of an Application for Review of a Medical Assessment on 17 January 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision were stated as follows:
·I accept the claimant’s submissions regarding the assessor’s clinical findings with respect to the planes of movement in the cervical spine and lumbar spine. These findings appear to translate into assessable impairment for non-uniform loss of range of movement (dysmetria).
·There also appears to be significant error with respect to the assessor’s comments to the nature of the dispute. The assessor was referred a permanent impairment dispute yet there are 6 mentions of “threshold injury” in the Certificate reasons.
Accordingly, the application was accepted and was referred to the Review Panel, which is to re-assess all of the injuries described in the referral to Medical Assessor Khan.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. The matter is determined at first instance by a Medical Assessor pursuant to s 63 of the MAC Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a)Review submissions dated 27 November 2023 (previously summarised).
(b)President’s delegate’s decision dated 17 January 2024 (previously summarised).
(c)Certificate and reasons of Medical Assessor Khan dated 8 November 2023 (previously described).
(d)Application for medical assessment.
(e)Application for personal injury benefits.
(f)Workers Compensation Commission medical assessments certificate – assessment of degree of permanent impairment dated 24 April 2009.
AMS Dr Kaleb Wilding assessed the claimant following a work injury on 24 May 2006 in which the claimant lost his balance, as he was crossing a roadway, and fell forward, striking the road with his flexed left knee and his outstretched right hand. Dr Wilding detailed a past history of accidents, dating from 1973, involving injuries to the head, back, left leg and foot, for which the claimant received 6 separate compensation settlements. In respect of the injury sustained on 24 May 2006, Dr Wilding assessed a combined 13% whole person impairment in relation to the right upper extremity, the left lower extremity and the back, after allowing for pre-existing impairments and inconsistencies.
(g)Workers Compensation Commission medical assessment certificate – assessment of degree of permanent impairment.
AMS Dr Neil Berry also assessed the claimant in respect of the work injury which occurred on 24 May 2006 that has been described. Dr Berry assessed the cervical spine, digestive system and right upper extremity. AMS Dr Berry noted that the claimant said he had undergone two medical examinations and been passed fit for work before commencing with his then employer. Dr Berry noted a history of injuries to the neck and back in a fall at work in 2000 from which the claimant recovered. Dr Berry noted a considerable degree of exaggeration but confirms that he was able to conduct a proper assessment. In relation to the cervical spine, he found an asymmetrical reduced range of movement. There were no clinical signs including local tenderness, guarding and muscle spasms. No alteration of spinal contour. Dr Berry assessed 0% whole person impairment for DRE Category I. In relation to the right upper extremity, Dr Berry assessed 8% whole person impairment, as a result of reduction in range of movement.
(h)Report and permanent impairment assessment dated 16 March 2015 by Dr Drew Dixon, orthopaedic surgeon, to NSW Compensation Lawyers.
Dr Dixon found that, in the work-related accident on 24 May 2006, the claimant suffered direct trauma to his left knee, right wrist and right shoulder, with low back pain and lumbar stiffness from favouring his left knee and using crutches, with aggravation of previously asymptomatic L2/L3 lumbar spondylosis. Dr Dixon assessed 11% whole person impairment for the right upper extremity, 7% whole person impairment for the lumbar spine and 18% whole person impairment for left total knee replacement.
(i)Reports of left shoulder ultrasound performed on various dates.
(j)Referral to Dr Haber by Dr Albadran for treatment of left shoulder.
(k)Report dated 19 February 2020 by Dr Haber to insurer relating to treatment of left shoulder. Dr Haber diagnosed a full thickness rotator cuff tear.
(l)Referral to Dr Guirgis by Dr Albadran for treatment of left shoulder.
(m)Report dated 23 June 2020 by Dr Guirgis to Dr Albadran.
Dr Guirgis made a diagnosis of:
·post-traumatic mechanical derangement of the cervical spine;
·post-traumatic symptoms in the left shoulder with ultrasound scan evidence of a 10 mm partial thickness tear of the supraspinatus tendon;
·further post traumatic mechanical derangement of the lumbar spine which triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes;
·post-traumatic symptoms in the left hip; and
·sleep disturbance.
(n)MRI left hip dated 12 August 2020.
Dr Matthew Lee concluded there was trochanteric bursitis and gluteal tendinosis.
(o)MRI cervical spine dated 24 September 2020.
Dr Lee concluded there was multi-level degenerate change, most marked at C5/C6 and C6/C7.
(p)Clinical notes of Dr Ismael Albadran for the period 16 August 2017 to 13 November 2020.
On 13 April 2019, Dr Albadran recorded that the claimant was struck on his left hip and shoulder by a closing bus door, some two weeks previously. The claimant was referred for physiotherapy. There was no mention of the neck and back in the referral. The first complaint of lower back pain was recorded on 10 January 2020. The first complaint of neck pain was recorded on 17 September 2020. There is no further mention of the neck or back in those notes.
(q)Certificates of capacity/fitness on various dates.
These all refer to left shoulder, hip pain and left loin pain.
(r)Further report dated 25 February 2021 by Dr Guirgis to Dr Albadran.
Dr Guirgis repeats his previous diagnoses.
(s)Further report dated 25 March 2021 by Dr Drew Dixon to Capitol Legal.
Dr Dixon recorded the present symptoms as being pain and stiffness in the neck, left shoulder and lower back, as well as pain in his lateral hip, which is associated with a limp. The claimant reported that his left total knee replacement is doing well. Dr Dixon notes restrictions in range of movement in the cervical spine, both shoulders and lumbar spines. He notes the radiological investigations performed since the date of the accident. He gives the following diagnoses:
1.Contusion to the left hip with post-traumatic stiffness with subacromial bursitis and rotator cuff tendinosis and bicep tendonitis with post-traumatic stiffness.
2.Whiplash injury to his neck with post-traumatic stiffness with dysmetria, left facet arthralgia and left shoulder brachalgia and trapezial muscle pain with aggravation of lower cervical spondylosis ongoing.
3.Low back strain injury with post-traumatic stiffness with aggravation of pre-existing low back strain injury and pre-existing lumbar spondylosis with radicular complaint with left sciatica.
4.Trochanteric bursitis of the left hip with a painful limp.
Dr Dixon related those injuries to the accident. He does not comment or note the late reporting of symptoms in the cervical spine and low back. Dr Dixon assesses 5% whole person impairment for the cervical spine, 0% whole person impairment for the lumbar spine and 3% whole person impairment for trochanteric bursitis of the left hip associated with a limp.
(t)Further report dated 17 June 2021 by Dr Guirgis to Dr Albadran.
The only significant difference to the previous reports of Dr Guirgis is his mention of chronic pain/anxiety/depression, for which the claimant was referred to a psychologist.
(u)Insurer’s certificate of determination dated 31 August 2021 – Internal Review.
The Reviewer confirmed the original decision to not concede that the claimant’s injuries exceed the statutory threshold for permanent impairment. As to causation, the Reviewer noted inconsistency as to the causation of the injuries and the mechanism of the accident as alleged. The Reviewer notes that the bus driver reported that no such accident occurred and that no formal incident report was made by the claimant at the time. Also, that the alleged accident was not reported to Police.
(v)The application made on 23 September 2022 to admit late documents relating to treatment of the left shoulder.
(w)Updated clinical notes of Dr Albadran for the period 14 November 2020 to 16 September 2022.
An entry on 14 January 2021 notes shoulder pain and neck pain. The next entry relating to the neck was made on 25 October 2021. There is no mention of back pain.
(x)CT cervical and lumbar spine reported on 12 February 2024 by Dr Dawes.
Comment: Multi-level degenerative disc disease with prominent anterior osteophyte formation. Marked foraminal stenosis at C6/C7 bilaterally, with probable C7 nerve root compression. Moderate foraminal narrowing at C3/C4 on the right and C5/C6 bilaterally, with potential C4 or C6 nerve root impingement.
Marked facet arthropathy at L3/L4 on the right and L5/S1 bilaterally may account for localised low back pain. Marked bilateral foraminal stenosis at L5/S1, with probable L5 nerve root compression.
The insurer relied upon the following material which the Review Panel has considered.
(a)Insurer’s reply submissions dated 19 December 2023 (R1).
(b)Insurer’s PIC submissions dated 4 October 2021 (R2).
The insurer made no admission the claimant suffered injury as alleged. The insurer noted the claimant’s pre-existing injuries which were the subject of previous claims. The insurer disputed causation of the alleged injuries to the cervical spine and lumbar spine as they were not listed in the claimant’s application for personal injury benefits. The insurer noted the claimant first reported lumbar spine pain on 10 January 2020 to Dr Albadran, approximately nine months after the accident. The insurer also noted the claimant first reported neck pain to Dr Albadran on 17 September 2020, almost 18 months after the accident. Dr Albadran referred the claimant for MRI investigations of the cervical spine which showed multi-level degenerative changes, mostly at C5/C6 and C6/C7 (A15). The insurer submitted that the claimant’s left shoulder was impaired prior to the accident and/or the reported symptomatology is a consequence of his pre-existing cervical spine injury. The insurer says that if the claimant suffered soft tissue injury to his hip in the accident, it would not result in an assessable impairment.
(c)Statement dated 8 August 2019 by the claimant.
(d)Statement dated 27 August 2019 by the bus driver.
(e)Physiotherapy report dated 24 May 2021 from Mr Ingrim.
(f)Reports of Body Health Co.
(g)NSW Police report dated 4 September 2019.
The insurer does not rely upon any qualified medico-legal specialists’ reports.
RE-EXAMINATION
The claimant was assessed on 4 April 2024 by Medical Assessor Tania Rogers whose report is as follows:
Bosko Strbac Examination
The examination was conducted with the assistance of a telephone interpreter, Bejan Grahovac NAATI CPNIBT41S.
The interpreter was available from 10:15 AM to 11:00 AM. The examination went from 10:15 AM to 11:20 AM. Mr Strbac indicated was happy to continue with the examination without the interpreter although he indicated that if any further questions were required he would prefer an interpreter.
Mr Strbac brought along the following imaging studies:·X-ray left shoulder and report, 30 March 2022 – no report
·Ultrasound left hip or groin and left shoulder, 8 May 2009 – no report
·Ultrasound left shoulder, 11 October 2021 – no report.
He also brought along the following imaging reports:
·Left shoulder ultrasound, 11 October 2019. This was reported to show a small partial thickness tear anteriorly in the supraspinatus tendon measuring 10 mm with thickening and tendinosis of the remaining tendon. The infraspinatus tendon was thickened and tendinitis. There was a small partial width tear at the insertion subscapularis tendon. There was a large amount of fluid in the biceps tendon sheath and a small joint effusion. There was thickening of the subacromial bursa.
·Ultrasound guided injection left shoulder, 30th March 2022.
·MRI left hip, 12 August 2020. Trochanteric bursitis and gluteal tendinosis.
·Multipositional MRI cervical spine, 24th September 2020, showing multi-level degenerative changes.
Mr Strbac stated that he migrated to Australia in 1972. He was employed as a form worker on building sites since 1974 until he was injured at work in 2006. He has been on an age pension since age 67.
Mr Strbac reported that he is right hand dominant.Mr Strbac related the following account of the motor accident: On April 1, 2019, at 3:20 PM, he was waiting for a bus on Moore Street in Liverpool, intending to travel home. A crowded bus passed by without stopping; however the bus subsequently had to stop at traffic lights about 20 meters down the road.
Mr. Strbac approached the bus while it was stopped at the lights. The driver opened the door, and Mr. Strbac alighted and stood near the door. After the driver closed the doors, another person asked to board the bus, so the driver opened the doors again. In doing so, the door struck Mr. Strbac in the left shoulder, causing him pain in the left hip, lower back, left shoulder, and neck.
Despite the pain, Mr. Strbac stayed on the bus and continued to his stop, disembarked, and went home. However, due to persistent pain, he later visited his general practitioner.
With regards to treatment, Mr. Strbac recalled that he received two injections in his left shoulder and was advised to undergo shoulder surgery, which he declined due to his age. He also received physiotherapy and consulted a psychiatrist.
It was brought to Mr. Strbac's attention that the original medical certificates and contemporaneous medical information did not mention any history of neck pain. Mr. Strbac stated that Dr. Guirguis advised him neck pain may not always commence immediately after an injury. When asked for clarification, Mr. Strbac later stated that he did experience neck pain immediately on the bus, but only decided later that it was severe enough to mention.
Mr Strbac reported the following symptoms:·Left shoulder and neck pain when he turns his head to the right.
·Numbness of the left hip
·Pain in the left knee.
·Pain in the back if he bends down to pick something off the floor.
·Intermittent numbness and pins and needles in the entire left thigh in a non dermatomal distribution.
·Constant numbness in the entire left leg below the knee.
Comment: the sensory symptoms in the lower limbs are not consistent with non-verifiable radicular because the findings do not follow the distribution of a specific nerve root as per Table 6.8: Motor Accident Guidelines:
Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).On specific questioning, Mr Strbac recalled a history of three previous back injuries in 1995, 1998 and 2000 however stated that the back pain had largely resolved although he has occasional backache from time to time.
He also recalled a foot injury in 1995.
There was also a work-related injury in 2006 when he fell onto his left knee and right hand while at work, injuring his left knee, right shoulder and neck.
He underwent 4 operations on his left knee and subsequently a subsequent total knee replacement in 2014. He reported that he recovered well from these injuries, although he still experiences occasional right shoulder pain.Mr Strbac stated that he takes the following medications:
·Amitriptyline 10 mg
·Tramadol 50 mg 1 bd
·Lavender oil
Mr Strbac indicated that he is married and resides with his wife. Occasionally he consumes one to two alcoholic drinks in the evening. He is a smoker.
Mr Strbac consented to proceed with the examination. I advised Mr Strbac to move within the limits of comfort. At the first sign of pain or tenderness for a given test, the test was aborted.
Mr Strbac was a pleasant gentleman of stated age and medium build who sat throughout the interview in no obvious physical distress and rose when requested after approximately 40 minutes.
He had a variable limp. He used no assistive devices and was able to transfer from sitting and standing without difficulty. He had minor difficulty getting up from a lying to a seated position.
There was a well healed surgical scar over the left knee consistent with a total knee replacement.
Cervical spine
There was no deformity of the cervical spine. Spinal curvatures were normally maintained. No scars were evident in the region of the cervical spine. There was regional tenderness of the posterior neck with no tilting or muscle guarding evident.Power was Grade 5/5 (normal) In the upper limbs. Tone in the upper limbs was normal.
There was regional sensory deficit to light touch in the entire left upper limb.
Biceps brachii, supinator reflexes were present; and triceps reflexes were symmetrically decreased.
There was active cervical spine range of movement as follows:
Forward flexion 50% normal range Extension 0% normal range Right lateral flexion 50% normal range Left lateral flexion 50% normal range Rotation to the right 1/8 normal range Rotation to the left 3/8 normal range
Upper arm circumference measured 10 cm proximal to the olecranon was 28 cm in the left and 29 cm in the right. There was a gap in the left biceps muscle suggestive of a biceps tear which could have reduced the arm circumference. Forearm circumference measured 10 cm distal to the olecranon was 26 cm in the right and 25.5 cm in the left arm.
Lumbar spine
There was regional lower back tenderness with no muscle guarding. The normal lordotic curve of the lumbar spine was mildly reduced. There was no tilt or deformity. There was no muscle guarding.
There was active lumbar spine range of movement of forward flexion as follows:
Forward flexion 75% normal range Extension 75% normal range Right lateral flexion 75% normal range Left lateral flexion 75% normal range Rotation to the right 100% normal range Rotation to the left 100% normal range
Seated straight leg raising was to 90° bilaterally and was not accompanied by complaints of pain. Supine straight leg raising testing was to 0° on the right and left and was reportedly limited by pain in the lower back.
Given the absence of thigh or leg pain in an appropriate dermatomal distribution (page 117, Motor Accident Guidelines), sciatic nerve tension testing was negative.
Knee reflexes and ankle reflexes were symmetrically decreased.
Thigh circumference was 44 cm in the right thigh measured 10 cm proximal to the upper border of the patella. Left calf circumference was 36 cm and right calf circumference was 37 cm measured 10 cm from the tibial tubercle therefore there was 1 cm atrophy in the left calf.Power was grade 5/5 (normal) bilaterally in the lower limbs.
Sensation to light touch was reduced in a stocking distribution in the left leg to the upper thigh. Sensory findings did not follow dermatomal patterns, therefore were not considered to be consistent with non-radicular complaints (page 117 Motor Accident Guidelines).
Overall, there were no signs of radiculopathy.
Hips
Trendelenburg sign was negative bilaterally.
Range of motion of the hips was assessed with a goniometer on three separate occasions and the results are as follows:
Hip Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 120° 60°, 50°, 40° Extension No flexion contracture No flexion contracture Adduction 0° 0° Abduction 60° 30° Internal Rotation 40° 30° External Rotation 40° 40° Shoulders
The shoulder contour was symmetrical. There was hitching of the left shoulder with abduction.
Range of motion of the shoulders was assessed with a goniometer on three separate occasions and the results are as follows:
Shoulder
MovementActive ROM
RIGHT
Active ROM
LEFTFlexion 80° 70° Extension 40° 30° Abduction 70° 80° Adduction 40° 40° Internal Rotation 80° 80° External Rotation 30° 50°
IMPAIRMENT
Left Shoulder
Reduced range of motion in the left shoulder is rated as 14% impairment of the upper extremity or 8% impairment of the whole person (AMA 4 pp 3/41 – 3/45; Figs 38, p 3/43; Fig 41, p 3/44, Fig 44, p 3/45, Table 3, p 3/20).
Using the same method, there is also a 14% UEI of the right shoulder. However, as there is a previous injury to the right shoulder it cannot be used as a baseline.
The Panel noted Dr Drew Dixon’s report dated 16/3/15. He was assessing injuries reported in a fall on 24 May 2006. Although the main injuries claimed were to the right upper limb, left knee and lumbar spine, he found the following AROM in both shoulders:
Shoulder
MovementActive ROM
RIGHT
Active ROM
LEFTFlexion 80° 150° Extension 30° 50° Abduction 70° 100° Adduction 30° 50° Internal Rotation 50° 80° External Rotation 60° 80° The Panel notes a similar AROM in the right shoulder to that found at this re-examination. AROM in the left shoulder is now worse, consistent with a subsequent injury. The above left shoulder range of movement gives 6% UEI (although Dr Dixon in his report appears to have incorrectly calculated 4%).
The two Medical Assessors on the Panel (both Occupational Physicians) considered that Dr Dixon’s 2015 findings were consistent with degenerative change in the left shoulder. This would be extremely common in a man of his age, especially with the long (30 year) occupational history of heavy work as a formworker.
The Medical Assessors also noted that the natural history of degenerative shoulder change is of gradual deterioration rather than any improvement in function. After considering all these issues carefully, The Panel considered that Dr Dixon’s findings should be used as an estimate of left shoulder impairment prior to the bus incident, noting also that it might be a conservative estimate. Therefore, 14% - 6% = 8% UEI, which converts to 5% WPI using Table 3, p 20 AMA 4.
Lower Extremity
·There is muscle atrophy in the left calf however this cannot be related to the left hip trochanteric bursitis.
·Range of motion in the left hip is moderately impaired, which would give 4% WPI or 10% LEI, from AMA 4 p 3/78, Table 40. However, greater trochanteric bursitis does not, per se, cause significant loss of AROM in the hip joint proper. Such loss is most often due to degenerative change (osteoarthritis) in the hip joint
·There is assessable impairment under Table 64 (AMA Guides 4 page 3/85-86).
oTrochanteric bursitis with abnormal gait – 3% WPI
There is no assessable impairment under Table 62 (AMA 4 p 3/83).
There is no true muscle weakness, joint ankylosis, skin loss, peripheral nerve deficit, peripheral vascular disease, or evidence of Complex Regional Pain Syndrome.
The impairments cannot be combined using Table 6.5. p 111, Motor Accident Guidelines.
6.70 Motor Accident Guidelines states that the most specific method, or combination of methods, of impairment assessment should be used, which in this case is impairment assessed by use of the Diagnosis Based Estimates.
Therefore, the WPI for the left lower extremity is 3% WPI due to trochanteric bursitis with abnormal gait.
Lumbar spine
There was no dysmetria, non-verifiable radicular complaints, fractures, multilevel structural compromise or previous spine operation. The lumbar spine injury is therefore consistent with DRE Lumbosacral Category I which is 0% WPI (AMA 4 p 3/102-103; Motor Accident Guidelines Section 6, Table 6.7).
Combined Impairment
5% WPI for the left upper limb and 3% WPI for the left lower limb are combined using the Combined Values Table to give a total of 8% WPI.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Rogers with which Medical Assessor Couch concurs.
[5] Section 7.26(6) of the Act
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment which is different to that provided by Medical Assessor Khan.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel is not satisfied that the motor accident caused an injury to the claimant’s cervical spine, as a matter of medical determination, and as a matter of factual non-medical determination, for the reasons stated. Specifically, the Review Panel is persuaded by the late reporting of complaints relating to the cervical spine.
Even if the Review Panel is incorrect in relation to causation, as it relates to the alleged injury to the cervical spine, the Review Panel would place the claimant into DRE Category I, resulting in 0% whole person impairment for the cervical spine.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Sikander Khan on 8 November 2023 should be revoked. Although the degree of whole person impairment is not altered, the Review Panel found the same impairment, upon a different basis. The new certificate appears at the commencement of these reasons.
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