Talukder v Allianz Australia Insurance Limited
[2023] NSWPICMP 587
•14 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Talukder v Allianz Australia Insurance Limited [2023] NSWPICMP 587 |
| CLAIMANT: | MD Aminul Kabir Talukder |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 14 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; whether degree of permanent impairment is greater than 10%; cervicothoracic injury; left shoulder injury not causally related to the accident; vehicle struck a kangaroo; overseas treatment including physiotherapy, injections and medicines; full range of movement right shoulder; left shoulder subacromial bursitis; permanent impairment; DRE1, cervical spine; range of motion not used as valid parameter due to inconsistencies noted; 2% whole person impairment; Held – revocation certificate of Assessor Preston; part 3.4 Motor Accident Compensation Act 1999. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Panel revokes the Certificate of Medical Assessor Preston dated 9 February 2022. The claimant has suffered a physical injury being a soft tissue injury to the cervical spine giving rise to zero percent whole person impairment. The claimant suffered a soft tissue injury to the left shoulder giving rise to a whole percent impairment of 2%. The claimant’s whole person impairment of 2% is not greater than 10% whole person impairment. |
STATEMENT OF REASONS
INTRODUCTION
MD Aminul Kabir Talukder (the claimant) was born on 17 November 1948 and was injured in a motor vehicle accident on 11 September 2016. The claimant applied for an assessment of whole person impairment and a certificate of Medical Assessor Preston was issued on 19 September 2019 which assessed 5% whole person impairment consequent on the injury sustained cervicothoracic spine.
Thereafter a further application was made based on updated material and the claimant was again examined by Medical Assessor Preston who issued a further certificate dated 9 February 2022 which found the claimant’s degree of permanent impairment arising from the accident was 5%.
In respect to this determination the claimant sought to have the assessment of Medical Assessor Preston reviewed on the basis that it was incorrect in the material respect. The President’s Delegate, in a decision dated 8 April 2022 determined that the Medical Assessor’s reasoning to explain her finding that the left shoulder injury was not causally related to the accident gave rise to a reasonable cause to suspect that the medical assessment is incorrect in a material respect. Accordingly, the matter was referred to a review panel comprising of Medical Assessor’s Thomas Rosenthal, Shane Moloney and Cameron Thompson.
After the re-assessment Member Thompson was unable to continue as a Member of the Panel and Member Hugh Macken was appointed to the Panel.
Mr Talukder was re-examined by Medical Assessors Rosenthal and Moloney on 14 December 2022 at the Personal Injury Commission’s rooms, 1 Oxford Street, Darlinghurst. He was accompanied by Farooque Khan (CPN7LV45W), a Bangla interpreter.
HISTORY OF THE MOTOR ACCIDENT
Mr Talukder was involved in a motor vehicle accident on 11 September 2016. He was the front seat passenger in an SUV four-wheel drive. He had his seatbelt on. He claims the seatbelt unbuckled in the accident. The car was being driven by his son. Apparently, the vehicle struck a kangaroo in the vicinity of Eastern Creek. He could not recall how fast the vehicle was going. He recalls striking his left shoulder in the accident. He said his left shoulder hit the front of the car. He could not recall if any airbags went off. The car was drivable after the accident.
HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE MOTOR ACCIDENT
He went to see a doctor the next day with ongoing complaints of neck, left shoulder and left elbow symptoms. Apparently, however, the general practitioner (GP) only recorded the elbow as being injured. He claims he reported his shoulder as being injured as well but it was not recorded by the GP.
He was referred to Dr Michael Ryan for a medico-legal assessment in October 2016. Dr Ryan diagnosed a frozen left shoulder. He also found an injury to the neck. Dr Ryan requested investigations which were subsequently performed including an X-ray of the cervical spine and MRI of the left shoulder.
Mr Talukder subsequently returned to Bangladesh where he lived and apparently he has received treatment in Bangladesh which has included physiotherapy, injections and medicine. He says the treatment has allowed for improvement in his condition. He said he has had eight injections in the last two years, the last injection being in 2020. He said he completed his physiotherapy in February 2021 and has been doing ongoing exercises since then.
PAST MEDICAL HISTORY
He denied any pre-existing conditions in regard to his neck, left shoulder and left elbow.
He does suffer from diabetes which he states he is taking medication for and it is under control. He has had prostate surgery in the past.
OCCUPATIONAL HISTORY
He retired from work in 2006. He was a senior government diplomat in Dhaka.
SOCIAL HISTORY
He lives in an apartment in Bangladesh. He has paid assistance for all his household activities. He is not driving. He does go shopping. He does some walking but no gym. He listens to music in his spare time. He says at times he has trouble dressing because of his injuries.
CURRENT SYMPTOMS
He has pain around his left shoulder joint which comes and goes. He notices pain on lifting. The pain travels towards his neck. There has been no change in his symptoms over the last 12 months. He has trouble sleeping on the left side. He said he has been offered surgery by a doctor in Bangladesh but has declined to have surgery.
CURRENT TREATMENT
He takes a painkiller called Denovo, one every 15 days. No other treatment is occurring for his motor vehicle accident injuries.
INVESTIGATIONS
No X-rays were brought to the assessment. The material attached to the Application and Reply were considered by the Panel. Additionally, the report dated 23 February 2023 was considered as leave was granted for this report to be considered as a late document.
PHYSICAL EXAMINATION
Mr Talukder walked with a normal gait and posture. He appeared to be in no significant distress.
He weighed 78.8kg. He was 174cm tall.
Examination of his neck revealed no tenderness, muscle spasm or guarding. Cervical lordosis was maintained. He had a symmetrical range of neck movement. All movements were reduced at the extreme. He reported pain on movement. There was no upper trapezial tenderness.
Brachial stretch was negative. There were no neurological deficits in his upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes.
Upper arm measurements were 28cm on both sides, 10cm above the olecranon. Forearm measurements were 25.5cm on both sides, 10cm below the olecranon.
The right shoulder exhibited a full range of movement with negative impingement, no instability or crepitus.
The left shoulder had a restricted range of motion which was inconsistent. Accurate goniometer measurements could not be obtained. All movements were affected by pain. Passive movements were greater than active. There was no instability or shoulder crepitus. Impingement signs at the left shoulder were negative. There was no muscle wasting evident around the left shoulder joint.
There was a full range of movement of the left elbow, no tenderness or swelling.
Grip strength in both hands was normal.
CONCLUSIONS
Causation
Injuries to be assessed:
· cervical spine – spondylosis, and
· left shoulder – tear of supraspinatus, infraspinatus tendon, acromioclavicular joint arthrosis and subacromial bursitis.
The Panel reviewed the issues of causation of injury to his cervical spine and his left shoulder.
Cervical spine
The Panel found that neck symptoms were initially reported in the personal injury claim form and also to his GP, Dr Modur. Dr Modur recorded neck pain in the medical certificate. The neck was subsequently mentioned in Dr Michael Ryan’s report of 25 October 2016 noting that neck pain developed soon after the accident. A cervical spine X-ray was subsequently performed on 10 November 2016 at Dr Ryan’s request.
The neck injury was consistent with the mechanism of injury where the motor vehicle that he was in struck a kangaroo causing him to be thrown forward and severely jolted in the accident.
The Panel accepted that there was an injury to the cervical spine consistent with the mechanism of the accident. The description provided by the claimant and the subsequent medical documents including the medical certificate from Dr Raghu Modur dated 15 September 2016 and the medicolegal report of Dr Michael Ryan dated 25 October 2016 also support the cervical spine injury.
Left shoulder
The Panel, having reviewed the documentation and mechanism of injury, determined that there was a left shoulder injury causally related to the motor vehicle accident. The Panel noted that the claimant stated that he was wearing a seatbelt. He was violently thrown forward and his left shoulder hit the front of the car. He also said his seatbelt in fact unbuckled on impact. This description was consistent with trauma to his left shoulder as a result of the motor vehicle accident.
The Panel did note that the GP recorded the injury as a left elbow injury but the claimant believed that the GP incorrectly recorded his symptoms at the time of presentation. The Panel, in this regard, preferred the history provided by the claimant and also the report of Dr Michael Ryan who clearly recorded that the injury was to his left shoulder. Dr Ryan found an injury to the left shoulder consistent with this accident and requested the MRI.
Thus, in the Panel’s view an injury to the left shoulder was consistent with the mechanism of the accident and contemporaneous documents including the report of Dr Ryan.
Diagnosis
Cervical spine
The panel determined that the cervical spine injury was a soft tissue injury. The cervical spine x‑ray was noted. In the Panel’s view the findings reported were of a degenerative nature. The injury was deemed to be consistent with a soft tissue injury of the cervical spine.
Left Shoulder
The panel noted the MRI report dated 10 November 2016 which concluded:
“Focal low grade bursal surface partial thickness tear at the insertion of the posterior fibres of supraspinatus with further low grade intrasubstance short segment partial thickness tear at the insertion of the anterior supraspinatus fibres. Mild to moderate subacromial bursitis and degenerative change in the acromioclavicular joint.”
In the Panel’s view, the reported MRI findings, the mechanism of injury and subsequent examination findings, and the treatment that occurred to the left shoulder, were all consistent with a soft tissue injury to the left shoulder.
The diagnosis for the left shoulder is soft tissue injury.
PERMANENT IMPAIRMENT
The Panel determined that the cervical spine injury and the left shoulder injury were assessable for whole person impairment.
The cervical spine was assessed in reference to Table 7 of MAPIG and cervicothoracic spine Table 73, page 110 of the AMA Guides 4th edition. The Panel on examination found no asymmetry of motion, no non-verifiable radicular complaints, no structural inclusions, no muscle spasm or guarding, and no evidence of radiculopathy. This injury is classified as DRE I and receives 0% whole person impairment.
The left shoulder was assessed in reference to MAPIG and AMA Guides 4th edition. The upper extremity chapters were referred to. The Panel found inconsistency in range of motion of the left shoulder and referred to paragraphs 1.40 and 1.41 of MAPIG. The inconsistencies were brought to the claimant’s attention as instructed under paragraph 1.41. The Panel then referred to paragraphs 1.50.1 to 1.50.5. 1.50.5 states: “If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Panel noted the abnormalities recorded in the MRI and considered that range of motion could not be used as a valid parameter due to the inconsistencies noted. The left shoulder condition is assessed by analogy. The Panel considered that an aggravation of the AC joint was likely and the best method of assessment was to assess the injury as ‘mild crepitation of the AC joint’. The Panel referenced Tables 18 and 20 of AMA Guides 4th edition and mild crepitation of the AC joint comes to 2.5% upper extremity impairment which is rounded up to 3% upper extremity impairment. 3% UEI converts to 2% whole person impairment.
COMMENT
The Panel’s examination findings, determination of causation and determination of whole person impairment were different to the findings of Medical Assessor Sally Preston for the reasons mentioned above. Accordingly, the Panel is of the view that a new certificate ought to be issued in accordance with the Panel’s finding of a whole person impairment of 2% consequent on the claimant’s left shoulder injury.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Preston dated 9 February 2022. The claimant has suffered physical injury being a soft tissue injury to his cervical spine giving rise to a 0% whole person impairment.
The claimant has suffered a soft tissue injury to his left shoulder which gives rise to 2% whole person impairment. The claimant’s total WPI is 2%.
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