Thorn v QBE Insurance (Australia) Limited

[2022] NSWPICMP 342

DETERMINATION OF REVIEW PANEL

CITATION:

Thorn v QBE Insurance (Australia) Limited [2022] NSWPICMP 342

CLAIMANT:

Scott Thorn

INSURER:

QBE Insurance (Australia) Limited

REVIEW Panel:

Member Belinda Cassidy
Medical Assessor Mohammed Assem
Medical Assessor Paul Curtin

DATE OF DECISION:

25 August 2022

CATCHWORDS:

MOTOR ACCIDENTS – Medical assessment of whole person impairment (WPI) and claimant’s review under section 7.26 of the Motor Accident Injuries Act 2017 (2017 Act); original Medical Assessor (MA) had assessed WPI at 7% for left knee injury (2%) and neck injury (5%) and 0% for a back injury with “no structural lesion”; MA’s finding had indicated the possibility of radicular symptoms flowing from the lower back injury which would have provided a 5% WPI and a total WPI of greater than 10%; parties agreed; pursuant to section 7.25 of the 2017 Act that the left knee and neck injury attracted a 7% WPI and there was no need to assess those; the Panel proceeded on the basis there was no issue as to causation of the back injury and a re-examination took place; Held — the examining Panel Assessors found dysmetria; non uniform range of motion between lateral flexion to the left and right and between flexion and extension; the claimant therefore had a WPI of greater than 10%; no issue as to principle. 

DETERMINATIONS MADE:  

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Revokes the certificate of Assessor Dixon dated 9 March 2022.

2.     Certifies that the degree of Scott Thorn’s permanent impairment resulting from the injuries caused by the motor accident on 15 December 2018 is greater than 10%.

STATEMENT OF REASONS

introduction

1. Scott Thorn was involved in a motor accident on 15 December 2018. His car was hit by another car that failed to give way at a stop sign.

2. On or about 24 December 2018, Mr Thorn made a claim for statutory benefits against QBE, the third-party insurer of the vehicle Mr Thorn says caused his accident. QBE has accepted liability for this claim and has paid Mr Thorn weekly benefits as well as covering the cost of his treatment and care needs since the date of the accident[1].

3. On or about 30 July 2020, Mr Thorn made a claim for damages against QBE and QBE has accepted liability for that claim[2].

4. A medical dispute arose in the damages claim about the degree of Mr Thorn’s whole person impairment (WPI) Mr Thorn’s entitlement to damages for non-economic loss. That dispute was referred to the Personal Injury Commission (the Commission) for determination. On 9 March 2022, Medical Assessor Drew Dixon determined the claimant did not have a whole person impairment of greater than 10%.

5. Mr Thorn was disappointed with that result and lodged an application for review of Assessor Dixon’s determination. On 7 June 2022, a delegate of the President determined there was reasonable cause to suspect an error in Assessor Dixon’s decision and on 29 June 2022, the President convened this Panel.

STATUTORY FRAMEWORK

1. Mr Thorn’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

2. Damages for non-economic loss are restricted and limited by the provisions in Part 4, Division 4.3 of the MAI Act. For example, entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident, and the amount of non-economic loss damages is limited to a maximum amount set in accordance with s 4.13[3].

3. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[4].

4. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Dixon’s, further medical assessments and the Review of medical assessments by this Panel[5].

Permanent impairment assessment

1. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).

2. The parties have agreed that the only injury to be assessed is the claimant’s lumbar spine injury.

3. Clauses 6.111 and 6.116 of the Guidelines say that while s 3.3 of Chapter 3 of the AMA4 Guides is relevant, only the diagnosis-related estimate method (DRE) is to be used when assessing lumbar spine impairment and that the range of motion (ROM) method is not to be used. The following clauses of the Guidelines are relevant:

   (a)    clause 6.112 requires evidence of neurological deficits and structural changes such as fractures;

   (b)    the assessment is done at the time of the examination and is to take into account for example surgery (cl 6.113);

   (c)    the assessor may need to consider pre-existing spinal conditions and apportion the impairment accordingly (cl 6.114);

   (d)    the three regions of the cervical spine identified in the AMA4 Guides, cervicothoracic, thoracolumbar and lumbosacral which the Guidelines identify as cervical, thoracic and lumbar (cl 6.115);

   (e)    each region is assessed separately and a DRE category between one and five chosen;

   (f)    Table 6.7 provided a list of the categories and the differentiators between the categories, and

   (g)    Table 6.8 provides a list of terms found in Table 6.7 and a definition of those terms.

4. An assessment of DRE I requires the presence of low back pain, neck pain or back pain and symptoms and attracts a WPI rating of 0%.

5. An assessment of DRE II attracts a WPI rating of 5% and requires:

   (a)    low back or neck pain with guarding; or

   (b)    non-uniform range of motion (known as dysmetria), or

   (c)    non-verifiable radicular complaints defined in table 6.8 as:

   (i)symptoms (such as shooting pain, burning sensation, tingling);

   (ii)which follow the distribution of a specific nerve root, but

   (iii)where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

6. An assessment of DRE III attracts a WPI of 10%[7] and requires pain with radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots” and requires two or more of the following signs to be found:

   (a)    loss or asymmetry of reflexes;

   (b)    position sciatic nerve root tensions signs;

   (c)    muscle atrophy and /or decreased limb circumference;

   (d)    muscle weakness anatomically localised to appropriate nerve root distribution, or

   (e)    reproducible sensory loss anatomically localised to an appropriate nerve root distribution.

ASSESSMENT UNDER REVIEW

1. Assessor Dixon was asked to assess the following injuries:

   (a)    left knee – meniscal tear;

   (b)    lumbar spine – soft tissue injury, and

   (c)    cervical spine – soft tissue injury.

2. Assessor Dixon took a history from the claimant of his home life, noting Mr Thorn was having difficulty with cleaning, heavy grocery shopping, laundry, gardening and so on. Assessor Dixon says the claimant has not been kayaking or bushwalking since the accident and these were his main sporting interests.

3. The claimant said he had a previous right knee injury, asymptomatic at the time of the accident and he was having treatment for lymphoma.

4. The claimant described the accident as occurring at an intersection when Mr Thorn t-boned another car which had failed to stop. Mr Thorn said his airbags deployed and he strained his neck and back and injured his left knee on the steering column.

5. Mr Thorn complained to Assessor Dixon of severe pain in his lower back with sciatica in the buttock and neck stiffness in his left shoulder with pain down his arm. He also had pain down his lower leg.

6. Assessor Dixon has a history that the claimant returned to work after six months off and had been moved into inventory as he had trouble using a forklift.

7. Assessor Dixon examined the claimant and noted:

   (a)    The claimant worse a knee guard on his left knee. While he could walk normally, he had difficulty with toe and heel walking due to pain in the knee and lower back.

   (b)    Mr Thorn’s ability to squat was restricted and there was audible and palpable crepitus behind the kneecap and mild effusion in the popliteal area.

   (c)    Range of motion was restricted in the left knee from 0-120 degrees (150 is normal) and the knee appeared stable. Mr Thorn’s right knee (not injured in this accident) was 0-130 degrees.

   (d)    There was 2cm wasting of left thigh and 1cm wasting of the left leg below the knee

   (e)    Mr Thorn’s cervical spine was stiff, and flexion decreased by one third and extension by one quarter. Other movements were restricted but equal. There was a full range of motion of both shoulders, elbows, hands, wrists and toes and no neurological deficit in either upper limb.

   (f)    The claimant’s lumbar spine was stiff with flexion decreased by one third and extension decreased by one third and lateral flexion to the left and right was unequal. Straight leg raise on the left was 60 and right 70 with sciatic pain. No neurological deficit in the lower limbs.

8. Assessor Dixon reviewed the radiology.

9. He considered the claimant’s impairment were permanent and diagnosed:

   (a)    post traumatic chondromalacia patella, secondary to a direct blow to the left knee;

   (b)    neck strain injury with aggravation of cervical spondylosis consistent with muscle spasm and asymmetry of movement of flexion and extension, and

   (c)    low back strain with post traumatic stiffness with aggravation of spondylosis with radicular complaints.

10. The resultant impairment assessments were:

    (a)    left knee         2%   as per table 62

    (b)    neck               5%   DRE II due to muscle spasm and dysmetria

    (c)    lower back     0%   DRE 1 “no structural lesion”

Submissions

Claimant’s submissions[8]

1. The claimant says at [34] that Assessor Dixon failed to properly categorise the claimant’s injuries and failed to provide a sufficient path of reasoning.

2. The claimant raises issues only with the assessment of his lumbar spine injury and refers to the Assessor’s finding of 0% and his reasons that the claimant has post traumatic stiffness with radicular complaints but no structural lesion. The claimant quoted the DRE I and II category descriptions from AMA4 and says at [12] “where radicular complaints are present but no objective signs of radiculopathy, the injury would fall within category II”.

3. The claimant then asserts at [13] Dr Dixon found on examination:

   (a)    radicular complaints with left buttock and thigh sciatica, and

   (b)    non-uniform range of motion in the lower back and legs.

4. The claimant argues at [14] there is therefore some neurological impairment in his lumbosacral spine and the claimant cannot fit into DRE category I.

Insurer’s submissions[9]

1. The insurer says at [4] there is no calculation or methodological error made by Assessor Dixon.

2. The insurer also quoted the DRE categories I and II for the lumbar spine and says:

   (a)    the MRI dated 3 December 2020 showed no evidence of nerve root impingement [17];

   (b)    the insurer’s expert Dr Harrington did not find spasm and all movements of the lower back were smooth and rhythmical and normal and power and reflexes were symmetrical [20]-[21];

   (c)    Dr Harrington diagnosed “mechanical back pain” which was agreed to by Assessor Dixon, and

   (d)    Dr Dixon said at [18] of his certificate that “there was no neurological deficit of either lower extremity” [25]-[26].

Procedural matters

1. The Panel issued directions to the parties on 4 July 2022 seeking a bundle of documents from each party which were provided on 6 July 2022 (claimant) and 4 August 2022 (insurer)[10].

2. The Panel met on 4 August 2022 and issued a report with additional directions to the parties advising of the re-examination date and requesting confirmation from the claimant that he did not rely on any medico-legal reports in answer to the report of Dr Harrington.

3. The Panel also said (at paragraph 5 of the report):

   “The Panel notes the submissions from the parties deal only with the claimant’s lumbar spine [injury]. Could the parties please confirm whether, in accordance with section 7.25 of the MAI Act, they agree that the claimant has a 2% WPI for his left knee injury and a 5% WPI for his cervical spine injury.”

4. The Panel also invited both parties to make any final submissions addressing any matters raised in the report.

Further submissions from the parties

1. The claimant advised the Panel by way of a message in the portal dated 8 August 2022:

   (a)    the claimant had no medico-legal reports to rely on;

   (b)    the application for review was limited to the lumbar spine, and

   (c)    the claimant had no further submissions for the Panel.

2. The insurer advised the Panel through the portal on 10 August 2022:

   (a)    it does not challenge the previous findings of WPI to the left knee, neck or back and therefore confirmed that the review was proceeding on the assessment of the lumbar spine injury only, and

   (b)    the insurer had no further submissions for the Panel

3. Section 7.25 of the MAI Act enables the parties to agree on what does not need to be assessed in a Review in terms of the degree of permanent impairment from a particular injury or whether a particular injury was caused by an accident. In this case both parties agree there is 2% knee impairment and a 5% neck impairment and that the only injury to be assessed is the claimant’s lumbar spine injury.

4. In terms of the lumbar spine the insurer has not raised any issue as to causation of the injury or the current impairment.

5. The Panel is therefore proceeding on the basis that the insurer agrees the claimant injured his lower back in the accident and that the real issue between the parties is the resultant impairment and in particular whether the claimant’s impairment fell into DRE category 1 (0%) or II (5%).

6. Bearing in mind cl 6.113 (requiring the assessment of impairment to be undertaken in the present and not based on past findings) the Panel determined it was necessary to conduct a re-examination of the claimant’s lumbar spine.

Review of the evidence

1. Because of the limited issue in dispute, the Panel does not intend to document in detail all the documentation upon which the parties rely.

The claimant’s evidence

1. In his application for statutory benefits[11] the claimant says he suffers from neck pain, lower back pain as well as bruising and cuts to the left knee as a result of the accident.

2. The claimant has provided a statement[12] dated 15 September 2020 saying he is now 44 years of age. He lists at [8], 56 disabilities including pain, weakness and limitation of movement of his lower back, pain and stiffness in his lumbar spine and difficulties bending and twisting. He also nominates pain in his left buttocks and back of the left thigh causing him to limp and difficulty on occasions sitting on a hard surface due to pain in his coccyx and lower back.

3. The claimant says he has had physiotherapy and takes medication and has seen his general practitioner (GP).

4. Mr Thorn says he was in good health before the accident. The claimant says he has returned to work as a storeman but has some difficulty.

General practitioner records

1. The records of the Kanwal Village Medical Centre have been produced[13]. They reveal:

   (a)    the claimant’s first recorded attendance was 9 December 2013;

   (b)    the claimant reported depression in May 2014 and further mental health issues at the end of 2015 and early 2016 and into 2018;

   (c)    an attendance for right knee with reduced motion in September and October 2014;

   (d)    various coughs and colds, minor skin lacerations and wounds;

   (e)    the first attendance after the accident was on 18 December 2018. At that time the claimant was suspected of having a vertebral fracture in his lumbo-sacral spine and was provided with a script of Panaedine Forte due to neck and back pain;

   (f)    on 19 December 2018, the GP commented on the X-ray report[14]. He was advised to see a specialist urgently through the emergency department. The claimant did this and the Wyong Hospital discharge summary refers to neck pain primarily and lower back pain near the sacrum on movement[15];

   (g)    physiotherapy was recommended on 21 December 2018 and 7 January 2019;

   (h)    on 21 January 2019 it was noted the claimant’s lower back pain was better but he still had pain with some movements;

   (i)    the claimant’s knee was the subject of two attendances in March and April 2019;

   (j)    thereafter there are consultations concerning heart issues, impaired liver function and other matters;

   (k)    on 31 May 2019 the claimant attended his doctor complaining of a flare up of neck pain after working on the forklift and Panadeine Forte was prescribed. A further attendance on 28 June 2019 suggests he was having continued neck, lower back and left knee pain and that he was having further physiotherapy;

   (l)    mental health issues related to the accident were the subject of an attendance on 15 August 2019 and January 2020;

   (m)     on 22 May 2020, Mr Thorn was seen by his GP noting lower back and knee pain and that his back pain starts with standing for longer periods, bending over for more than five minutes, but the claimant denied weakness in the lower limbs, paraesthesia or loss of sensation in lower limbs, loss of bladder or bowel control or saddle anaesthesia. More physiotherapy was arranged;

   (n)    on 27 July 2020 there was an aggravating episode of back pain with more physiotherapy recommended;

   (o)    at an attendance on 31 July 2020, Mr Thorn complained of a lower back ache, again there was no weakness but there is mention of spasm associated with pain in the left leg and lower back. Bending over and vacuuming aggravated the claimant’s pain and while there was no sensory impairment there was a report of mild pins and needles in the lower limb;

   (p)    there was a similar complaint in early August 2020 but on 21 August 2020 the claimant attended for a return-to-work review, saying he had “nil” pain in the lower back. Power, sensation and reflexes were normal with no tenderness in the midline or paravertebral muscles. There were “mild pins and needles” reported in the lower limbs, and

   (q)    the final entry on 7 September 2020 records the development of back pain after doing resuscitation training at work.

2. There are within the GPs notes referrals for physiotherapy and regular reports from the claimant’s physiotherapist showing progress of the claimant’s injuries leading up to his return to work over six months after the accident[16].

3. There is also a bundle of motor accident/workers compensation certificates of capacity and fitness noting neck and back injuries[17] along with return-to-work plans and reports from the insurer’s rehabilitation advisors[18].

Radiology

1. The claimant had X-rays undertaken of his neck and lower back on 18 December 2018 due “Pain post MVA ? vertebral fracture”. In the cervical spine there was “scoliosis noted with convexity to the left”, some kyphosis at the C3/4 level but no significant findings. In the lumbar spine there was lower thoracic and upper lumbar scoliosis with convexity to the right but no sign of fractures and the lumbar discs appear normal.

2. A CT scan was then performed of the claimant’s neck on 20 December 2018 (page 84 and 127) and an MRI undertaken of the claimant’s left knee (page 85).

3. MRIs were also done of the claimant’s neck and back on 3 December 2020 (page 465). In relation to the lower back this reads as follows:

   “Normal lumbar curvature is noted. No vertebral collapse is seen. No marrow signal changes are seen.

   Mild disc desiccation changes are seen at L3-4, L4-5 and L5-S1 level with mild disc bulges. Mild facet arthropathy is also seen at these levels. Narrowing of bilateral neural foramina is seen. No significant nerve root impingements are noted.

   The conus medullaris and cauda equina appears normal.

   The spinal canal is capacious throughout. The rest of the posterior elements appear normal. The paravertebral soft tissues appear normal.”

1. The insurer requested documents from the claimant’s local radiology centre[19] and the documents produced include the above radiology and all other radiological investigations performed before and after the accident. It is noted that there is no pre-accident investigation of the claimant’s lumbar spine which supports the claimant’s history of no previous lower back complaints.

Medico-legal reports

1. The claimant’s solicitor has advised that the claimant does not rely on any medico-legal reports of his own but both parties have provided copies of, and rely on, reports of Dr Christopher Harrington dated 6 July 2020[20].

2. Dr Harrington has a consistent history of the accident and notes that both vehicles were spun around, and the claimant’s airbags deployed. Emergency personnel apparently attended although the claimant was not taken to hospital. The claimant says he struck his knee against the steering column and had immediate back and neck pain which worsened overnight.

3. The claimant reported to Dr Harrington that his neck pain improved although his back pain continued. The back pain was said to be across the belt line and “he doesn’t describe sciatica”.

4. On examination Dr Harrington observed that movements of the back were “smooth and rhythmical” and that power and reflexes were symmetrical and normal. There was 1cm of wasting in the quadriceps on the left side and crepitus behind the patella which was not painful.

5. Dr Harrington had seen the X-rays of the claimant’s spine (but not the MRIs which had not been done at that stage. He suggested MRIs be done if there was sciatica or other developments.

6. Dr Harrington diagnoses a direct blow to the left kneecap causing patellofemoral arthralgia and a soft tissue injury to the lumbar spine causing mechanical back pain. He did not think the claimant had suffered an aggravation injury of the lumbar spine.

7. Dr Harrington thought that the claimant required some additional physiotherapy and might need more needed in the future because the claimant has returned to work with no restrictions and the claimant does not want to mention his back injury for fear that he will lose his job. As Dr Harrington said “I can understand his reluctance to speak up although he may put himself in a position which can perpetuate a flare-up of symptoms if he pushes himself too far”.

8. Dr Harrington thought there was a 0% WPI for the neck and lower back (DRE I for each) and no impairment of the knee for restricted movement. He did however allow 2% for atrophy of the thigh.

RE-examination findings

1. Mr Thorn was examined by Assessor Curtin and Assessor Assem on 24 August 2022. Mr Thorn reported that he continues to experience intermittent lower back discomfort. He said his symptoms were worse after driving from Gorokan (the Central Coast) to attend the appointment. He said he stopped half-way through his journey.

History

1. Mr Thorn reported that he is currently being treated for Lymphoma having completed radiotherapy in March 2022 and chemotherapy in May 2022.

2. Mr Thorn said that was driving home from work[21] when a Subaru station wagon drove through a stop sign directly into his path. He collided with the side of the vehicle before spinning onto the other side of the road. On impact, his left knee struck the dashboard. He was wearing a seat belt and his air bags deployed. He did not experience any discomfort immediately after the accident and therefore declined ambulance transport to hospital. He felt a headache and rested for a couple of days before seeking medical attention for neck, back and knee pain.

3. After the accident he was off work for six months before returning to work on suitable duties at the Woolworths Distribution Centre in Warnervale. He was redeployed from receiving work to inventory work as he found it difficult to stand for long periods. Approximately two years ago, he suffered an aggravation of his lower back complaints after lifting a 5kg box and twisting. At that time, there was a shooting pain radiating down his left leg that subsequently subsided. Mr Thorn required a further six weeks off work at that time. The Panel brought to his attention that on 21 August 2020, his GP, Dr Khan, documented in his notes that there was no back pain. Mr Thorn denied any change to his condition.

4. Mr Thorn said there was an aggravation of his left knee complaints when the lifting restriction was upgraded from 20kg to 25kg.

5. At the present time, he complains of a dull ache across the mid lumbar region that he rates as 6/10 on the pain scale. There was no radiation of pain to his lower extremities and no “pins and needles” involving his lower limbs apart from the tips of his toes that developed after he received chemotherapy.

Examination

General presentation

1. Mr Thorn appeared well and in no apparent distress. He was cooperative during the examination. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.

2. Mr Thorn’s height was 182cm and he weighed 107kg.

Lumbar spine (lumbosacral)

1. There was no muscle guarding or spasm present when Mr Thorn was examined.

2. Lumbar movements were reduced in flexion to half normal range. Extension was normal. Mr Thorn brought the Medical Assessors’ attention to some difficulty he had with lateral flexion to the left. On formal examination lateral flexion to the left was slightly more reduced than lateral flexion to the right. There was some increased muscle tension during this manoeuvre but no muscle guarding or spasm.

3. The Panel brought to Mr Thorn’s attention that in July 2020, Dr Harrington noted that he was able to touch the ground. He said that his condition has deteriorated since then. On repeated testing by the Panel, Mr Thorn continued to have a consistent restriction in his lumbar movements. The Panel noted that Assessor Dixon also recorded asymmetry of lateral flexion albeit to one third normal range on the right to one quarter range on the left.

4. There were no neurological deficits in either lower limb.

MOVEMENTS	Dr Harrington 6 July 2020	Assessor Dixon 9 March 2022	Panel 24 August 2022
Flexion	To the floor	reduced by 1/3	reduced by 1/2
Extension	No specific mention	reduced by 1/3	Normal
Rotation to the right	No specific mention	No specific mention	Normal
Rotation to the left	No specific mention	No specific mention	Normal
Lateral bending to the right	No specific mention	reduced by 1/3	reduced by 2/5
Lateral bending to the left	No specific mention	reduced by 1/4	reduced by 1/5

Neurological tests

Reflexes

REFLEX	LEFT	RIGHT
KNEE JERK	Normal	Normal
ANKLE JERK	Normal	Normal

Sensation

1. There was no alteration in sensation over the whole of the claimant’s lower limbs.

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	Normal	Normal
L4	5/5	Normal	Normal
L5	5/5	Normal	Normal
S1	5/5	Normal	Normal

Note:       5 is active movement against gravity with full resistance

Muscle Atrophy

THIGH	Left equal to the right
CALF	Left 0.5 cm less that the right

1. No unilateral muscle atrophy present.

Neural tension tests

TEST	RIGHT	LEFT
STRAIGHT LEG RAISE	Normal	Normal
SLUMP	Normal	Normal

Comments on consistency

1. The claimant’s movements were repeated three times and measured. The claimant’s demonstrated range of motion on examination was consistent throughout.

2. There was minor variation in lumbar movement exhibited to the Panel when compared to the range observed by Assessor Dixon which is not of significance. There was much greater variation when compared to the findings of Dr Harrington who noted the claimant could touch his toes but did not specifically mention the other planes of movement or record any measurements.

3. The variations were brought to the claimant’s attention that his condition had generally deteriorated since the examination with Dr Harrington. The claimant had earlier said that he was experiencing more symptoms due to the drive from the Central Coast. The Panel also notes the GP’s records support an aggravating injury in late July 2020 and another in September 2020 which appears to have resulted in an increased of symptoms and further physiotherapy treatment. In December 2020 the claimant was referred for MRI investigations of his neck and back due to continued pain. These records support the claimant’s history of an aggravation and deterioration of Mr Thorn’s condition since the Dr Harrington examination.

4. The Panel is satisfied that there is an explanation for the variation in findings between Dr Harrington (for the insurer) and the Panel and Assessor Dixon whose findings are similar to those of the Panel.

ASSESSMENT

1. The claimant has pain and symptoms in his back he therefore satisfies DRE category I.

2. For the claimant to satisfy DRE category II he would require:

   (a)    muscle guarding – there was no muscle guarding observed by the Medical Assessors during the course of the re-examination, OR

   (b)    dysmetria (non-uniform range of motion) – the claimant demonstrated a consistent non-uniform range of motion on lateral flexion to the left and right and while flexion movement was reduced, extension was not, OR

   (c)    non-verifiable radicular complaints of symptoms, loss of sensation, loss of power and loss of reflexes – the claimant’s neurological examination was normal and no non-verifiable radicular complaints were evident.

3. Because of the presence of dysmetria, the claimant must be categorised as DRE II.

4. The Panel is not satisfied the claimant has two or more of the five signs of radiculopathy although he does have muscle atrophy/decreased limb circumference on the left side. The claimant therefore does not satisfy the requirements of DRE III.

CONCLUSION

1. The insurer and the claimant had agreed that the claimant’s WPI for his neck injury was 5% and for his left knee injury, 2%. As the Panel has found the claimant’s lumbar spine injury has resulted in an impairment categorised as DRE II attracting a WPI of 5%, the claimant has a total WPI of 12% which is greater than 10%.

2. It therefore follows that the certificate of Assessor Dixon must be revoked.

[1] The first liability notice is dated 20 January 2019 and the second dated 6 June 2019 (documents AD4 and AD5 in the Commission’s electronic file).

[2] The claim form is AD6 in the Commission’s electronic file and the liability notice dated 18 November 2020 is document AD5.

[3] The current maximum as of October 2021 is $590,000.

[4] See s 4.12 of the MAI Act.

[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.

[6] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.

[7] DRE III for lower back impairments the WPI is 10%, however for neck impairments the figure is 15%.

[8] The submissions are dated 6 April 2022 and are found at page 473 of the claimant’s bundle of documents.

[9] The submissions are dated 3 April 2022 and are found at page 1 of the insurer’s bundle.

[10] The bundles are identified as documents AD1 and AD2 in the Commission’s electronic file.

[11] Page 20 of the claimant’s bundle.

[12] Page 9 of the claimant’s bundle.

[13] Page 29 of the claimant’s bundle. There are some records in this bundle relating to other people for example at pages 109, 110 and 111.

[14] The actual X-ray report is found at page 83 of the claimant’s bundle.

[15] Pages 124-125 of the claimant’s bundle.

[16] The records of the physiotherapist have been produced but add nothing to the Panel’s understanding of the issues in dispute.

[17] Both the claimant and the insurer have provided copies of these certificates in their respective bundles.

[18] Again both the claimant and the insurer have provided copies of these.

[19] The letter request it is found on page 180 of the insurer’s bundle.

[20] Both parties have provided copies of this report, the insurer’s copy at page 41 of its bundle, is clearer.

[21] In his 2006 model Holden Rodeo four-wheel drive vehicle with a bull bar.