Transport Accident Commission v Marando
[2023] NSWPICMP 654
•6 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Transport Accident Commission v Marando [2023] NSWPICMP 654 |
| CLAIMANT: | Rocco Marando |
| INSURER: | Transport Accident Commission |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 6 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; relevant pre-accident medical history; no non-verifiable radicular complaint; undisplaced fracture of T1 spinus process; ulnar nerve injury at the left forearm; Held – certificate of Medical Assessor Dixon revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment Determination · Cervical spine – 5% · Thoracic spine – 0% · Right shoulder – 4% · Ulna neuropathy – 1% · Lumbar spine – 0% the claimant suffered a whole person impairment of 10%. |
STATEMENT OF REASONS
INTRODUCTION
Rocco Marando (the claimant) is a 53-year-old man who was injured in a motor vehicle accident when his vehicle was struck from behind by a truck. Following the injuries the claimant sought a concession from the insurer that the injuries he sustained exceeded the 10% whole person impairment threshold established by the Motor Accident Compensation Act. The insurer maintained its position that the claimant’s injuries did not exceed the threshold and thereafter the claimant applied to have an assessment of the degree of permanent impairment undertaken by the Personal Injury Commission.
Thereafter on 7 February 2023 the claimant was examined by Medical Assessor Drew Dixon who found the claimant to have sustained 18% whole person impairment consequent on injuries to his cervical and thoracic spine, left and right shoulder and ulnar neuropathy.
The insurer sought a review of the certificate on a number of bases and the matter was duly considered by the President’s delegate, Jeremy Lum, who in a certificate dated 14 April 2023 determined that he was satisfied there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. This was, primarily, on the basis that the Medical Assessor did not explain how he came to accept that the claimant sustained a T1 spinous process fracture. Accordingly, the matter was referred to this Panel.
On 19 September 2023 the Panel convened by Teams video conference and considered the material and determined that there would be a need to physically examine the claimant and arrangements were put in place for this to take place on Wednesday 1 November 2023.
Mr Marando attended alone for Panel re-examination by Medical Assessor Oates on 1 November 2023 at the PIC Medical Suites as arranged. Medical Assessor Stubbs was present via a Teams video link.
HISTORY
Pre-accident medical history and relevant personal details
Mr Marando has hypertension and high cholesterol, and takes medications including Irbesartan, Atenolol, Rosuvastatin and aspirin as a blood thinner.
He had repair of right inguinal hernia approximately six years ago. He has had removal of appendix and tonsils in the past.
At age 16, he was involved in a motor vehicle accident injuring the neck and lower back. He received treatment from the GP and made a full recovery, returning to sport. A claim was lodged.
In 1989, he injured his left knee playing touch football and had an arthroscopy by Dr Giblin, but the knee got worse. He eventually saw Dr M Cross and had arthroscopic surgery which fixed his knee.
Between 1989 and 2009, he had a number of sprained ankle injuries from playing touch football. He saw the GP and was treated with RICE therapy and the sprains settled.
On 7 March 1998, he fell from a chair at work and injured his lower back. He was treated with chiropractic and his back settled down OK. A workers compensation claim was lodged.
In July 2010, he injured his chest when playing football. He came under the care of his GP and made a full recovery.
In October 2020, he injured the left thumb at home and was treated by his GP, Dr Pham, but made a full recovery. He can’t recall details of this incident.
In 2013, he injured his left ring finger when playing touch football. He was treated by his GP. The ring finger was swollen and settled down after his wedding band was removed.
In November 2013, he apparently had a click in his left foot when jogging and saw the GP, but he can’t recall the details.
In July 2016, he was playing soccer with his son in the park and reached out for the ball, injuring his left shoulder. He saw his GP, Dr Pham. He saw a specialist, whose name he can’t recall, and had a cortisone injection. The shoulder then settled down.
He lives on a 5-acre property with his wife and three teenage children. They have two sheep, a dog and chickens at times. The foxes usually kill the chickens.
Before the accident he didn’t play team sports, but looked after the yard work using a ride-on mower and did gardening.
He is a solicitor in criminal law practice at Fairfield.
He would occasionally kick a football with his son in the backyard. He is still able to ride his quad bike but not all day like before.
History of the motor accident
Mr Marando is right-handed.
He said on 28 March 2019, he was the seat-belted driver of a Land Rover Discovery 4WD with no passengers. He was on his way to work. He was in the left lane of the M7 Motorway, proceeding towards Parramatta for a court appearance for a client. When he reached the Motorway exit, he was stopped behind another vehicle and had been for about 20 seconds, when there was a loud bang and he blacked out. He then recalled coming to with one eye being slightly blurry and his car was slowly rolling forward towards the car in front. His vehicle had been hit by a semi-trailer and his car was pushed forward about 25m and hit the car in front of him. This other car drove off. His vehicle was written off. His glasses had flown off his face from the impact and the rear glass panel of his vehicle was smashed, with glass inside the cab. He found his glasses on the floor in the driver’s footwell.
Police attended the accident scene, as did the ambulance. He was able to get out of the car through his door and he exchanged details with other drivers. He was given a lift by the tow truck driver from the accident scene, but the driver noted he was pale and pulled over and called an ambulance. The ambulance attended and then took him to Mount Druitt Hospital. He was wearing a neck collar during transport. He had a tingling sensation in the left ulnar three fingers and pain from the left elbow down the ulnar aspect of the forearm to the hand. He was not bleeding. His wife arrived on scene and noticed he had a bloodshot right eye.
History of symptoms and treatment following the motor accident
At the hospital, he recalls having central neck pain and left forearm pain. He had CT scans. He was observed for a few hours and then discharged with Panadol. He was referred to the care of his GP. He recalls taking one or two days off work. He developed low back pain on the day of the accident, but the pain did not radiate into the legs. His neck pain was radiating to the right upper trapezius and towards the shoulder but there was no radiating into the arm. Initially, he also had radiation of pain into the left trapezius, but this subsequently settled. He noted pain at the cervicothoracic junction, which he described as a dull pain.
He was not settling down and saw a GP, Dr Morris, on 30 March 2019, as his usual GP, Dr Pham, was absent. On 5 April 2019, he was reviewed by Dr Morris and sent for an ultrasound scan of the right shoulder and MRI scans of the cervical spine and left wrist, and referred for physiotherapy. He had treatment to the lower back and occasionally to the right shoulder and neck, with treatment over a two-year period, but unfortunately the very good effect of a physiotherapy session only lasted a few days at a time.
After having the scans, his usual GP, Dr Pham, Horsley Park, referred him to Dr R Abraszko, neurosurgeon, Liverpool, and she arranged an MRI scan of the lumbar spine and sent him for a nerve conduction study of the upper limbs and this was normal. Dr Abraszko referred him for a whole body bone scan but found no lesion which warranted surgery. He continued with exercises and physiotherapy. He had some difficulty with right eye vision and he had a CT scan of the brain showing a cyst in the right zygoma (cheekbone). No surgery was indicated. He was referred to see Dr Curtis, a faciomaxillary surgeon, regarding the zygomatic cyst and there was an option for it to be removed later if he wished.
Details of any relevant injuries or conditions sustained since the motor accident.
On 2 October 2021, he was riding his trail bike slowly behind his then nine-year-old son, who was on a minibike on the lawn of their home. The lawn was wet and as he slowly turned towards his left, the rear wheel of the bike slid outwards causing the bike to lean towards the left. He put his left foot on the ground to stop the bike falling and held the motorbike with his hands on the handlebars. When he placed his foot on the ground, he was holding the weight of the bike and he felt sharp pain in the lower back and also pain in the knee. He believes he dislocated the patella and he self-reduced it. He had physiotherapy and the knee settled down again.
There was also a temporary flare-up of symptoms of lumbar back strain, which had occurred following the subject accident. This had caused him to accidentally accelerate the motorcycle throttle, causing him to lose balance, fall off the bike and injure his knee. He also injured his left ankle. The left ankle settled down and he had continuing pain in the left knee for a period, but this also settled down.
He did attend the ED at Fairfield Hospital and his GP, and Dr Shidiak, orthopaedic surgeon at North Parramatta, and physiotherapy was recommended.
Current symptoms
His right eye condition settled down and he has had an increased prescription for his long-distance vision glasses about once a year but does not know whether this is related to the effects of the accident.
He has pins and needles in the ulnar two fingers of the left hand, but they are not as bad as before. From the little finger, the pins and needles extend to the mid palm, but in the ring finger only the distal half of the digit is affected. His wrist is OK and the rest of the left arm is OK.
His main problem now is low back pain after physical activity, such as lifting, prolonged walking and standing, and manual work. He is able to continue his usual occupation and usual hours, but has back discomfort with prolonged sitting during court appearances and doing computer work.
He lives on acreage and when he uses a ride-on mower, it increases the low back pain. There are no radiating symptoms to the leg. His other problem is neck pain radiating to the right trapezius. He gets this after prolonged sitting at the computer. There are no radiating symptoms to the arm. There is no clicking or crunching in the neck. He does notice some symptoms in the left trapezius at times.
He did have symptoms in the left knee and left ankle, but these settled down and were due to a consequential motorcycle accident.
He has difficulty sleeping at times with neck pain.
Current and proposed treatment
He stopped physiotherapy once the insurer ceased liability, after having just started on an exercise program through a gym set-up at the physiotherapy clinic. He takes Celebrex which he finds effective for low back pain. He has a spa at home, but it only has a minor effect.
EXAMINATION
General presentation
He was of tall solid build with height 175cm and weight 105.6kg.
Cervical spine (cervicothoracic)
There was no guarding and no tenderness. There were no non-verifiable radicular complaints. Flexion and extension were three-quarters of normal range. Lateral flexion was two-thirds of normal to the right and one-half normal to the left, with consistency on repeated measurement. Rotation two-thirds of normal bilaterally. Reflexes and power, including intrinsic muscles in the hands, were normal in the upper limbs. Sensation was normal apart from some slight decrease in the left ulnar nerve distribution, with a positive Tinel’s sign over the left ulnar nerve at the medial elbow.
Upper arm girth; right 33cm, left 33.5cm measured at 10cm above the elbow crease. Forearm girth; right 31.5cm, left 30.5cm measured at 5cm below the elbow crease.
Thoracic spine (thoracolumbar)
There was no tenderness, including at T1. There was full thoracic rotation bilaterally. There was no muscle guarding and normal sensation over the trunk.
Lumbar spine (lumbosacral)
There was no guarding. There was tenderness in the right L5/S1 facet joint area. Flexion and extension were both two-thirds of normal. Lateral flexion was two-thirds of normal bilaterally. There was complaint of pain in the right lower back at the end of flexion. Reflexes, power and sensation in the upper limbs were normal with plantar responses both flexor.
Straight leg raising was to 60° bilaterally with left hamstring cramp on initial right straight leg raising but negative stretch test bilaterally. Thigh girth; right 53cm, left 52.5cm measured at 10cm above the superior patellar pole. Leg girth; right 43cm, left 43.5cm measured at 13cm below the inferior patellar pole (maximal circumference).
Upper extremities
Active range of movement measured with a goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° | 150° |
| Extension | 50° | 50° |
| Adduction | 40° | 40° |
| Abduction | 160° | 180° |
| Internal Rotation | 50° | 70° |
| External Rotation | 90° | 90° |
There was full range of movement of right and left elbows, right and left wrists, and right and left hands.
Lower extremities
Active range of movement measured with a goniometer.
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° | 130° |
| Extension | 0° | 0° |
Both knee joints were stable in anteroposterior and mediolateral directions. There was no patellofemoral crepitus or complaint of pain on patellar compression in either knee.
Right and left ankles showed full range of movement bilaterally.
Comments on consistency
He was straightforward and consistent in his presentation.
Summary of relevant radiological and medical imaging under investigation
The following imaging was considered by the Panel:
1 September 2011 – MRI scan left knee – History of giving way in the knee.
25 July 2019 – Bone scan.
14 August 2019 – CT scan brain.
31 January 2020 – CT scan brain.
5 February 2020 – MRI lumbar spine.
14 February 2020 – Bone scan.
12 October 2021 – MRI left knee post motorbike accident ? meniscal injury.
Diagnosis, causation and reasons
61 The diagnoses are:
· soft tissue injury of cervical spine with no evidence of radiculopathy. The accident was the cause of this injury, as it is mentioned on the Claim Form dated 3 April 2019, in the hospital record dated 28 March 2019, in the GP record dated 30 March 2019, and in the physiotherapy and neurosurgical record from Dr Abraszko dated 30 May 2019.
· soft tissue injury to the thoracic spine with an undisplaced T1 avulsion fracture. This injury is mentioned in the GP record and the Claim Form, and a bone scan of 25 July 2019 showed that there was no longer any uptake in the fracture, indicating that the fracture had healed. The accident was a cause of this injury, as it is mentioned in contemporaneous records.
· lumbar spine soft tissue injury. The accident was a cause of this injury, as it is mentioned in the GP record, the Claim Form, the early physiotherapy record and Dr Abraszko’s neurosurgery report.
· left wrist soft tissue injury which is mentioned by the GP on 30 March 2019, the hospital record of 28 March 2019, and Dr Abraszko. There was a diagnosis made of left ulnar nerve neuropraxia in Guyon’s canal. The accident was a cause of this injury, as it is referred to in the early contemporaneous medical records.
· soft tissue injury to the right shoulder. The accident was a cause of this injury, as it is mentioned in the Claim Form and the GP record. An ultrasound scan showed supraspinatus tendinosis and subacromial bursitis on 1 May 2019.
· soft tissue injury to the left shoulder. The accident was not a cause of a direct shoulder injury. The claimant described neck symptoms radiating to the left trapezius area early on after the accident, accounting for left shoulder being mentioned in some of the documentation, however Mr Marando said the radiating symptoms resolved. The Panel notes there was a previous left shoulder injury which accounts for the small loss of movement..
· Consequential soft tissue injuries to left knee and left ankle. The accident was not a cause of direct injury to these body regions. They were injured in a subsequent motorcycle accident. The claimant indicated that both of these injuries resolved.
PERMANENT IMPAIRMENT
Cervical spine (cervicothoracic)
62 The clinical examination findings show dysmetria of lateral flexion which places him in Cervicothoracic DRE Category II giving 5% whole person impairment.
63 The thoracic spine was normal to examination and there is no assessable permanent impairment.
64 The lumbar spine showed symmetric loss of active range of movement with no guarding, no non-verifiable radicular complaints, and no radiculopathy. Symptoms of pain are still present, thus placing him in DRE Lumbosacral Category I giving 0% whole person impairment.
65 There is restricted range of movement in both right and left shoulders.
66 On the right shoulder, flexion 130° gives 3% upper extremity impairment, abduction 160° gives 1% and internal rotation 50° gives 2%. Adding these gives 6% upper extremity impairment.
67 At the left shoulder, flexion 150° gives 2% upper extremity impairment and internal rotation 70° gives 1% upper extremity impairment. Adding these gives 3% upper extremity impairment.
68 At the right shoulder 6% upper extremity impairment is equivalent to 4% whole person impairment.
69 The left shoulder cannot be used as a baseline because it is not a normal uninjured joint, noting the past history.
70 There is an additional impairment from the ulnar nerve injury at the left forearm. There is no motor loss but there is a partial sensory loss graded at Grade 4 with 25% sensory deficit. The maximum sensory deficit for ulnar nerve above mid-forearm is 7% upper extremity impairment. 25% of 7% is 1.75% rounded to 2% upper extremity impairment. This is equivalent to 1% whole person impairment.
71 Note the healed undisplaced fracture of T1 spinous process does not produce a DRE category greater than I.
72 Combining 5% WPI from cervical spine by 4% WPI from right shoulder by 1% WPI from left ulnar nerve gives 10% WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA4, Chapter 3, Table 73, page 110 DRE II | Yes | 5 | 0 | 5 |
| 2 | Thoracic spine | AMA4, Chapter 3, Table 74, page 111 DRE I | Yes | 0 | 0 | 0 |
| 3 | Right shoulder | AMA4, Chapter 3, Table 3, page 20, figs 38, 44, pages 43,45 | Yes | 4 | 0 | 4 |
| 4 | Ulnar neuropathy | AMA4, Chapter 3, Table 11, page 48; Table 15, page 54 | Yes | 1 | 0 | 1 |
| 5 | Lumbar spine | AMA4, Chapter 3, Table 72, page 110 DRE I | Yes | 0 | 0 | 0 |
* %WPI = percentage whole person impairment
Combined impairment from injuries caused by the accident is 10%WPI.
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