Ullah v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 747
•31 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ullah v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 747 |
CLAIMANT: | Sami Ullah |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Rhys Gray |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 31 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor Wallace’s assessment of 10% whole person impairment (WPI); claimant alleged injuries to cervical, thoracic and lumbar spines and both shoulders; rib injuries assessed by another Medical Assessor; claimant was a taxi driver involved in a three-vehicle collision; issues of causation, consistency and assessment; Medical Review Panel (Panel) found claimant did sustain soft tissue injuries to his spine but was not satisfied there was any frank or specific injuries to the shoulders; Panel also not satisfied any shoulder symptoms and restriction of motion caused by the neck injury; claimant’s shoulder movements inconsistent and Panel not satisfied any impairment to the shoulder was accident-related; Held – Panel assessed 5% WPI on basis of lumbar spine injury only; Medical Assessment Certificate revoked; no matter as to principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificates issued by Medical Assessor Wallace dated 14 December 2023 and 21 March 2024. 2. In answer to the statutory question as to the degree of Mr Ullah’s permanent impairment that has resulted from the injuries caused by the motor accident, certifies that Mr Ullah’s whole person impairment is 5% when the following are combined: (a) the Review Panel’s finding of a 5% impairment, and (b) Medical Assessor Grainge’s finding on 9 February 2024 of a whole person impairment of 0%. |
STATEMENT OF REASONS
INTRODUCTION
Sami Ullah was involved in a motor accident on 24 February 2021. The claimant was driving a taxi when he was hit from the rear which caused him to collide with two other cars.
The claimant says he injured his spine and shoulders in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that he says caused the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment. The Commission arranged three medical assessments as follows:
(a) on 14 December 2023 Medical Assessor Wallace determined the claimant had a WPI of 10%;
(b) on 9 February 2024, Medical Assessor Grainge determined the claimant had a WPI of 0%, and
(c) on 21 March 2024, Medical Assessor Wallace issued a certificate combining the above two assessments determining that the claimant did not have a WPI of greater than 10%.
The claimant lodged an application with the Commission seeking a review of Medical Assessor Wallace’s decision. On 12 June 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 19 June 2024, the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
The Panel has been advised that on 2 June 2024, Medical Assessor Barrett issued a certificate determining that the claimant had a WPI of 15% in respect of his psychological injuries. The Panel has also been advised that the insurer has lodged an application for review in relation to that assessment, but no Review Panel has yet been convened.
LEGISLATIVE FRAMEWORK
Mr Ullah’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and 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.
[1] The current maximum as of October 2024 is $654,000.
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.[2]
[2] See s 4.12 of the MAI Act.
Dispute Resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wallace’s, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Wallace examined the claimant on 5 December 2023 and issued his certificate on 14 December 2023.
At section [2], Medical Assessor Wallace says he was asked to examine the claimant’s cervical, thoracic and lumbar spine along with his left and right shoulder.
The claimant gave Medical Assessor Wallace a history recorded at [8] - [10] that included the following:
(a) he has been driving taxis for 60 hours a week since 2015;
(b) he has had no previous episodes of pain in his spine or shoulders;
(c) he was otherwise well at the time;
(d) his vehicle was moving at 50 kmph at the time of the collision and he was pushed into a collision with a parked car, spun and then collided with another car;
(e) emergency services arrived, but the claimant did not go to hospital;
(f) he went to his general practitioner (GP) the next day and then on 27 February 2021 he went to Campbelltown Hospital. He has had chiropractic and physiotherapy and hydrotherapy, and
(g) he has been referred to Dr Darwish, neurosurgeon.
The claimant’s current symptoms were recorded as intermittent aches in the neck on both sides radiating to the trapezius on both sides, shoulder and arms. In the right arm there was pain to the right hand and the claimant complained of intermittent paraesthesia and numbness. At the thoracolumbar spine he had a constant ache from T1-T5 radiating to the right buttock and right leg to the foot. There was also paraesthesia and numbness reported in the right leg with weakness in the right leg.
The claimant said he was having weekly exercise physiology and was due to have a lumbar spine steroid injection in December 2023. He reported taking Endep, Mobic, Naprosyn, Celebrex and Panadeine Forte.
On examination of the neck there was dysmetria in the extension/flexion plane but there was normal neurological examination. Both shoulders demonstrated reduced movement, but strength was normal. Lower back examination was also normal but there was dysmetria of flexion and extension.
Medical Assessor Wallace found the claimant had sustained musculoligamentous strains to the three regions of his spine. He found no evidence of direct trauma to both shoulders and that any shoulder symptoms were due to referred pain from the neck.
He found 0% WPI for the neck, thoracic spine and lower back, but 5% for each of the shoulders. This was on the basis that the loss of range of motion in the shoulders was due to referred pain from the cervical spine injury. The total WPI was 10% and there was no deduction for any pre-existing condition.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the assessment of the claimant’s cervical and thoracic spine noting the Medical Assessor breached the guidelines by referring to degrees of motion rather than fractions. The claimant also says the Medical Assessor does not consider dysmetria and did not explain why he found symmetrical range of motion.
Insurer’s submissions
The insurer says the claimant has not explained how the methodological error would result in a different (material) outcome. The insurer says the examination findings suggest no clinical findings of significance and the correct diagnosis-related estimate (DRE) category was I which equals 0%.
Procedural matters
On 25 June 2024, the Panel issued directions to the parties. The Panel noted there was a decision of Medical Assessor Barrett certifying the claimant’s WPI for his psychiatric injuries at 15%. The Panel queried whether the current review of the physical injuries needed to proceed.
The Panel also directed the parties to provide bundles of documents.
The Panel met on 30 July 2024 and noted an application for review of Medical Assessor Barrett’s decision had been filed, determined but no Panel yet convened. The Panel confirmed it would be reviewing the spine and shoulder assessments of Medical Assessor Wallace only.
The parties were advised of the re-examination date.
REVIEW OF THE EVIDENCE
Pre-accident records
The insurer has obtained a copy of the claimant’s medical and pharmaceutical benefits scheme (PBS) records. The claimant was on a statin modifier since 2017 prescribed by Dr Tran and others at Hoddle Avenue Campbelltown and Dr Mechreky and others at Royale Medical Centre.
On 22 February 2021, two days before the car accident, the claimant was prescribed Paracetamol and Codeine which it appears he attempted to fill on 28 February 2021, but which was not supplied by the pharmacy.
The claimant appears to have had multiple appointments before the accident at Dr Tran’s practice. The Medicare list indicates lumbar spine and lower limb investigations were performed in February 2018 at the request of Dr Tran.
Claim form and claim documents
The claim form was signed and dated 11 March 2021. The claimant denied any previous claim and denied any previous illness or injury to the same parts of his body.
He listed his injuries as psychological, neck, back, ribs, pain radiating into hands and tingling and numbness in his hands. The Panel notes he does not mention symptoms radiating into the legs or symptoms in the shoulders.
Treating medical records and reports
Dr Tran of Campbelltown General Practice provided a letter to NRMA on 22 March 2021 confirming he saw the claimant on 25 and 27 February 2021 and enclosing his clinical notes for the two consultations.
The claimant attended on his own on 25 February 2021. He referred to neck pain, pain in the left side of his chest and left thoracic back pain. Neurologically he was normal although lifting his arms above shoulder level caused pain. There were no complaints of lower back and no specific shoulder symptoms reported.
X-rays were done of the chest, thoracic and cervical spine on 26 February 2021 and no abnormality was reported. There was no radiology requested of the lower back or shoulders.
The claimant attended with a friend Zahid Khan on 27 February 2021 and was “still feeling pain in the neck and thoracic spine, pain in bilateral lower ribs” and Mr Khan said he had noted swelling in Mr Ullah’s face yesterday. The neck had reduced range of motion, and the claimant was tender in the thoracic spine. Again, there is no mention of lower back or shoulder symptoms.
The claimant attended Campbelltown Hospital on 27 February 2021. He was referred “with neck swelling and bilateral rib pain.” There was no neurological complaint and no complaints of lumbar spine pain or shoulder pain.
Dr Girgis of Royale Medical Centre provided notes. There are a few pre-accident attendances, but none appear to relate to any musculoskeletal issues.
The claimant first attended Dr Girgis on 4 March 2021. He complained of neck pain with tingling sensation in both hands, back pain with tingling sensation in both feet, shaking in both hands, painful ribs. Similar symptoms appear on 8 March 2021.
On 15 March 2021 the claimant’s neck was noted as having restricted range of motion and a chiropractor was recommended and diagnostic imaging sought.
The chiropractor was also employed at Royale Medical Assessor and Ms Do saw the claimant there on 19 March 2021 Treatment was provided and exercises given.
On 1 April 2021 the claimant had a bone scan due to complaints of neck pain with tingling in both hands and back pain with tingling in both feet, painful ribs and shaking hands. This revealed:
(a) healing left fifth and sixth rib fractures and minor fractures of the left seventh and eight ribs;
(b) no other fractures, and
(c) minor arthritic changes in the right wrists and small joint in the hands.
The notes end on 8 October 2021 and there have been regular attendances on both Dr Girgis and Ms Do in between. In the last recorded attendance with Dr Girgis in this bundle of notes, on 5 October 2021 the claimant complained of a stiff upper and lower back with rib pain. In the last record in this bundle with Ms Do on 8 October 2021, the claimant complained of rib pain, upper to mid back pain radiating to the lower back and into the right leg and neck pain radiating up to the ears and down to the elbows with pain and weakness in the second and third fingers.
In the updated bundle the notes commence with an attendance on Dr Girgis on 2 November 2021. The claimant complained of neck pain and stiffness, back pain and stiffness and for the first time there is a record of shoulder pain however it was noted he had a full range of movement in the shoulders albeit with pain.
On 16 November 2021 and at a further 23 attendances up until the second bundle of records end on 4 September 2023, Dr Girgis records that the claimant had a full range of motion in the shoulders.
Physiotherapy commenced at Campbelltown Physiotherapy and Sports injury centre on 14 March 2022. On 22 April 2022 the claimant is noted to have complained of symptoms in the ribs, neck, shoulder, lower back and knees. Treatment continued for 22 sessions until 13 August 2022.
On 6 December 2022 the claimant had an MRI of his whole spine due to “pain not getting better since his car accident”. This revealed:
(a) minimal disc bulge at C5/6 causing no compression;
(b) no abnormality in the thoracic spine;
(c) a degenerative disc at L4/5 with mild bulge and annular tear causing mild canal stenosis but the L4 nerve roots exit freely, and
(d) a desiccated and narrowed L5/S1 disc with a mild disc protrusion displacing the left S1 nerve root.
Dr Darwish reported to Dr Girgis on 27 February 2023. He has a history of chest wall and lower back pain initially then neck pain. Dr Darwish has a history of the claimant working 10-15 hours a week. On examination of the lumbar spine Dr Darwish found a positive nerve stretch test but normal power and sensation in both lower limbs. He considered the cervical spine MRI was normal as was the thoracic spine, but the claimant had an L4/5 disc dehydration and annular tear with potential compression of left L5 nerve root. Clinically the claimant had no signs of radiculopathy, and an exercise program was recommended and a script for Celebrex.
Dr Darwish reported again on 20 July 2023 noting ongoing lower back pain, stiffness and neck pain and pain in both shoulders. The claimant had not started a gym program due to approval issues. Dr Darwish emphasised the importance of physical therapy.
On 2 October 2024, the claimant lodged provided a certificate of capacity from Dr Girgis and dated 13 August 2024. Dr Girgis repeats what has was stated in previous certificates that the claimant sustained musculo-skeletal injuries to his neck, back, ribs with a tingling sensation, numbness and shakiness in his hands and C5-6 and L4-5 disc and fractured ribs. The Panel notes that Dr Girgis does not list any knee injuries or shoulder injuries.
Medico-legal reports
The claimant’s solicitor arranged for the claimant to be seen by Dr Dias, occupational physician who has produced a report dated 15 February 2022.
Dr Dias has a history of the claimant coming to Australia in March 2007, working as a console operator and store assistance before commencing work as a taxi driver full time in 2015. He said he worked 10 to 12 hours a day six days a week. He owed his own taxi and drove for Premier Cabs.
The claimant denied any previous symptoms in his spine or shoulders before the accident. The claimant gave a history of the accident and said he saw the vehicle approaching in his rear-view mirror at more than 100 kmph. He braced himself on the steering wheel. Dr Dias has a history of the three impacts (the rear, the vehicle on the left and the vehicle on the right) and that the taxi was written off.
The claimant says emergency services attended, he was checked over by ambulance officers, was picked up by friends and driven home.
The claimant said he saw his GP the next day (Dr Tran) and was sent to Campbelltown Emergency where he was examined, X-rayed and sent home. He then went to Dr Girgis on 4 March 2021 complaining of neck, ribcage, thoracic, low back pain and tingling in his hands and feet. The claimant was further investigated and had chiropractic treatment. A body scan on 1 April 2021 revealed moderate rib fractures on the 5th and 6th ribs and minor fractures on the 7th and 9th ribs.
Dr Dias has a history of ongoing continuous pain, stiffness and discomfort affecting the neck, chest wall, thoracic and lumbar spine. The claimant’s neck pain was radiating to the right and left shoulder causing stiffness and discomfort in the shoulders. There was “non-specific tingling and pins and needs and numbness affecting his right and left hands” and down the legs into the feet.
The claimant had no physiotherapy, hydrotherapy or gym program, no cortisone or surgical intervention but he was seeing a chiropractor and using simple analgesics. Dr Dias has a history of the claimant’s psychological symptoms.
The claimant had returned to work but was working fewer hours less than 30 hours a week.
On examination:
(a) in the cervical spine there was no spasm but moderate guarding, there was asymmetrical loss of motion in all three planes;
(b) there were no neurological signs in the upper limbs;
(c) there was tenderness, no spasms but significant muscle guarding in the thoracic spine, there was asymmetrical loss of motion but no signs of thoracic radiculopathy;
(d) in the lumbar spine there was tenderness, no spasm but moderate guarding. There was asymmetry of movement in both planes, and
(e) the claimant’s complaints of pins and needles and numbness conformed to a right and left L5 dermatome however there were no objective signs on testing and therefore while there were non-verifiable radicular symptoms there was no lumbar radiculopathy.
Dr Dias diagnosed chronic cervical spine pian caused by a whiplash, chronic non-specific thoracic pain, chronic chest wall pain secondary to seatbelt injury and fractures and chronic non-specific lumbar spine. He was not of the view the claimant had injured his shoulders but that he had referred pain from the neck injury.
Dr Dias assessed WPI in a separate report at:
(a) neck – 5% due to asymmetry and guarding;
(b) thoracic – 5% due to asymmetry and guarding;
(c) lumbar spine – 5% due to asymmetry, guarding and non-verifiable radicular symptoms;
(d) chest – 0%;
(e) right shoulder – 4%, and
(f) left shoulder – 4%.
Dr Chow provided a report dated 17 March 2023 to the claimant’s solicitors concerning the claimant’s psychiatric injuries. He assessed WPI at 17%.
Dr Whetton, psychiatrist assessed the claimant’s psychological injuries and assessed his WPI at 16%. However, when it was drawn to the Medical Assessor’s attention that the claimant was working 15 hours a weeks as a taxi driver, he reduced the class of impairment of “adaptation” from class 3 to class 2 which reduced the claimant’s WPI to 8%.
Dr Machart undertook an assessment of the claimant’s physical injuries for the insurer on 15 August 2023. He has a history of the claimant having chiropractic treatment, physiotherapy and hydrotherapy and that the claimant’s symptoms are increasing in severity.
The claimant reported pain everywhere from the head to the sacrum and most prominently in the lower thoracic spine. The claimant reported radiating pain to the right outer thigh and both sides of the neck worse when cold or windy.
The claimant was asked to move his head which he did by closing his eyes and turning 20 degrees. When challenged about being able to drive taxis he said he moved his body to look sideways.
Dr Machart found no impairment noting:
“There is evidence of extensive pain behaviour, physical signs not consistent with injury pathology or with contemporaneous evidence of assessment in casualty, and not consistent with commercial driving.”
Dr Keller, occupational physician provided a report dated 14 September 2023 to the insurer’s solicitors. The claimant complained to him of constant neck pain radiating to the left and right shoulder and down both arms with tingling that comes and goes in his hands. The claimant also complained of constant lower back radiating to the right leg.
Dr Keller noted the claimant “moved his neck quickly and freely without signs of restriction or distress” and demonstrated a full symmetrical range of motion with no spasm.
Shoulder motion was measured and reported in the attachment to these reasons.
The claimant’s lumbar and thoracic spine had no spasm and movements were inconsistent between formal examination and informal observation. Reflexes were normal, weakness not demonstrated and no nerve root tension when sitting.
Dr Keller thought there was no evidence of lasting physical injuries. While the claimant complained of pain Dr Keller said:
“Pain is subjective complaint. It is not possible for me to state whether Mr Ullah does or does not experience pain. However, the investigation reports showed degenerative changes in the lumbar spine only and his mobility appeared quite free in the neck, back and arms when coming and going from the assessment.”
Other assessments
Medical Assessor Grainge examined the claimant on 9 February 2024 and issued his certificate on the same day. He confirmed at [2] he was asked to assess fractures of the 5th, 6th, 7th and 8th ribs on the left side.
He records a history at [9] of the claimant having significant chest and back pain and that Campbelltown Hospital X-rays did not demonstrate fractures. The claimant said he had a bone scan performed which demonstrated the rib fractures.
The claimant said he had continuing chest discomfort with deep breathing coughing and sneezing. He described symptoms when in air conditioning or cold weather and shortness of breath on exercise.
There were no peripheral signs of respiratory disease and pressure on the sternum caused pain but no pain radiating to the ribs.
Medical Assessor Grainge found the rib fractures were caused by the accident but attracted no impairment on the basis the fractures had resolved.
Medical Assessor Barrett examined the claimant on 20 May 2024 and issued a certificate on 2 June 2024.
She has a history of the claimant continuing to work 10-12 hours a week as a taxi driver.
She records that before the accident the claimant helped with domestic duties, bonded with his children, played with his children, attended prayers two to three times a day and read in between taxi jobs.
The claimant’s history of the accident included that the airbags did not deploy but that the car was written off.
The claimant gave a consistent history of his physical symptoms. He expressed concern after the accident about his ability to support his family. He returned to work on 10 March 2021 and since the treatment has ceased, he has further reduced his work hours. He reported taking melatonin and amitriptyline and sees a psychiatrist and psychologist.
The claimant reported nightmares, anxiety perspiration and tremor when driving. He said he had “flashbacks” and “intrusive thoughts” and “mood swings”.
Medical Assessor Barrett diagnosed post-traumatic stress disorder caused by the accident. She assessed WPI at 15%.
RE-EXAMINATION FINDINGS
Mr Ullah was re-examined on 2 October 2024 at the Commission’s medical suites.
History provided by the claimant
Mr Ullah repeated the circumstances of the accident. He was driving a taxi, working as a taxi driver, when his vehicle was hit from behind at high speed on 24 February 2021. His car was pushed into two parked cars on the side and front of him. He had his seatbelt on at the time. No airbags went off in the vehicle. Police, ambulance and fire brigade attended but he did not go to hospital by ambulance.
He went home then saw Dr Tran, his GP, the next day, and attended Campbelltown Hospital two days later.
Initially, he said he had whole body pain and had various scans done. Once the majority of his pains settled, pain localised to his chest, neck and shoulders. Mr Ullah said he did not initially report shoulder pain to Dr Tran but could not explain why. Mr Ullah said he also had mid and lower back pain which he believes developed after he returned to work about two weeks after the accident.
Mr Ullah said he did not receive any particular treatment at Campbelltown Hospital. Dr Tran sent him for chiropractic treatment, of which he had 60-70 treatments, as well as physiotherapy, hydrotherapy and exercise physiology. These treatments Mr Ullah said only gave him short term relief. Pain persisted he said in particular around his neck and the top of his “shoulders”. He demonstrated the location of this pain pointing generally about the shoulder girdle including to his upper trapezii and scalene muscles of the neck.
Mr Ullah says he was eventually referred to Dr Darwish, neurosurgeon, whom he first saw around February 2023. Dr Darwish gave him a cortisone injection into the L5/S1 (lumbar spine) area which gave him minimal relief. A further cortisone injection at L4/5 was suggested and requested but denied by the insurer.
Ongoing treatment has included painkillers and a psychologist over the last two years for “pain management”, as well as managing his psychological condition.
Mr Ullah said he did not injure his upper or lower limbs in the motor accident and could not recall any particular shoulder joint or knee joint injury although he said his legs, arms, neck, back, shoulders were all sore following the accident. No investigations were performed on his knees and the Panel has not been taken to any radiology of the shoulder joints.
Pre-existing conditions
Mr Ullah denied having any pre-existing musculoskeletal conditions. The Medicare records were brought to his attention suggesting possible lumbar and leg radiology in 2018. He had no recollection of this, saying, “maybe my wife”. He did not believe the entry in the GP records belonged to him. It was also put to him that records suggested he was prescribed codeine and paracetamol two days before the accident. He had no recollection of this saying, “not me”.
He said he was perfectly well at the time of the subject accident.
Current symptoms
Mr Ullah reports he has constant pain around both sides of his neck and suprascapular areas. He also gets a sharp pain in an area where, as noted above he pointed to the upper trapezii and scalene muscles. He said the neck pain radiates up to his ears, “all the time". He described occasional sharp pain into both arms generally when he uses his arms but could not locate any specific pain location. He said he gets pins and needles and numbness in his hands but he could not be more specific.
He also says he has constant low back pain with pain radiating down the back of his right leg going to his knee with walking or standing. He reported pins and needles and numbness all over his feet.
He can walk about 100m. Sitting is OK for short periods.
Current treatment
He takes two Panadol Osteo three times a day, Celebrex once a day, Panadol Rapid, Endep at night, melatonin and Pristiq.
He uses Deep Heat and Rapid gel which his wife applies to assist with his various pains.
Current employment
Mr Ullah says he returned to work two weeks after the accident but on reduced hours. He had been working up to 25 hours a week following the subject accident, but then hours were reduced, and he was put back to 12 hours a week (four hours a day three days a week) saying he now only accepts work around the Campbelltown region and only short trips.
Since three weeks ago, he is having a break completely from his taxi driving work. He has no other paid work.
Social history
He is living in a house with his wife and two children aged 10 and 5. He cannot do household chores. He cannot mow the lawns. His wife is doing all the internal house chores.
He does no exercise. He has stopped playing cricket. He does no other significant physical activities.
PHYSICAL EXAMINATION
On examination, Mr Ullah walked with a somewhat stiff posture but normal gait.
He weighed 78.6kg. He was 176cm tall.
Cervical spine - neck
On formal testing, neck movements were recorded as follows:
(a) flexion and extension were reduced by three-quarters;
(b) lateral flexion both left and right reduced by three-quarters, and
(c) rotation reduced by three-quarters.
No asymmetry of neck movements was detected.
There was general tenderness in the cervical region along the paraspinal muscles with no localised tenderness and there was no spasm or guarding. He was generally tender in his upper trapezius and scalene muscles. In the light of previous examinations, the Panel clarified with Mr Ullah whether he had any shooting pain or burning. Mr Ullah did not complain of any upper limb radicular symptoms.
There were no signs of radiculopathy in his upper limbs:
muscle power and tone were normal;
all upper limb reflexes were present and normal;
Mr Ullah reported intermittent numbness in his hands but there were no sensory changes present at the time of the examination on testing;
there was no evidence of muscle wasting in the upper limbs or around the shoulders. Upper arm measurements were 30.5cm on the right and 31cm on the left, 14cm above the olecranon. The difference is not clinically significant in the judgment of the Medical Assessors. Forearm measurements were 30cm on both sides, 10cm below the olecranon, and
there were no positive nerve root impingement signs.
Thoracic spine
The thoracic spine was generally tender over the paraspinal region as was the lumbar spine. No spasm or guarding was detected.
The thoracic spine range of motion was measured as follows:
(a) flexion – extension reduced by three quarters, and
(b) rotation both left and right reduced by three quarters.
There was no asymmetry of motion and Mr Ullah made no complaint of radicular symptoms and there were no signs of radiculopathy. There was no muscle atrophy, muscle weakness or sensory loss relevant to enervation by any of the thoracic nerve roots.
There was no rib cage deformity or local tenderness apart from some sternal tenderness.
Lumbar spine – lower back
The lumbar spine had a normal lumbar lordosis. There was tenderness on palpation but no spasm or guarding. Lumbar movements were measured as follows:
(a) flexion and extension were reduced by three quarters, and
(b) lateral flexion both left and right reduced by three quarters.
Mr Ullah was asked about radiating pain or shooting pain and Mr Ullah complained of right posterior thigh pain extending distally (that is towards the knee).
There was no evidence of neurological impairment or signs of radiculopathy as follows:
(a) straight leg raise was 70 degrees on both sides, Lasegue’s signs were negative there were therefore no positive sciatic nerve root tension signs;
(b) muscle power and tone were normal;
(c) all lower limb reflexes were present and were normal;
(d) there was no complaint of sensory changes and no sensory changes detected on testing, and.
(e) there was no evidence of muscle wasting or atrophy. Mr Ullah’s thigh measurements were 45cm on the right and 44.5cm on the left, 10cm above the superior patellar border and his calf measurements were 38cm on the right and 38.5cm on the left, 10cm below the inferior patellar pole. These slight discrepancies in circumference are not, in the judgment of the Medical Assessors, clinically significant.
Shoulders
There was no sign of impingement in either shoulder on testing. There was no acromioclavicular joint tenderness and no crepitus or instability of either shoulder joint.
Mr Ullah was advised in detail, before we took any measurements, of the importance of consistent and best movement in order for us to assess his shoulder impairment. There was a reduced range of active motion (measured with a goniometer) when compared with passive movements elicited by the examiner an when he was being observed getting dressed and undressed and at other times during the examination. The passive movements were considerably far greater than the active ranges of motion displayed at the formal examination.
The current inconsistencies in shoulder movements on both sides were brought to Mr Ullah’s attention. It was also brought to Mr Ullah’s attention that the range of motion demonstrated with other examiners has varied in the past and was much greater then, than his range of motion at the Panel’s re-examination.
Mr Ullah explained that his movements were affected by his level of pain and depending on activity and whether he had taken his painkillers. Some days he said, movements were better at times than others, due to the amount of pain he was experiencing and whether he was relaxed.
The active range of motion was then re-measured with a goniometer three times atand the ranges continued to be considerably inconsistent with sequential assessments.
Shoulder Movement
Right
Left
Flexion
75, 70, 10
80, 60, 60
Extension
40, 35, 20
35, 45, 50
Abduction
70, 70, 80
90, 80, 70
Adduction
40, 35, 40
45, 30, 40
External rotation
80, 40, 70
90, 80, 50
Internal rotation
20, 25, 20
0, 35, 20
The Medical Assessors noted that when moving his shoulders, there were complaints of general shoulder girdle pain bilaterally but no specific cervical spine pain or other neck symptoms or signs.
All other upper limb movements were normal (elbows, wrists and hands).
Lower limbs
In the lower extremities, Mr Ullah demonstrated a full range of hip, knee and ankle movements.
There was no clinical abnormality at either knee joint: no retropatellar crepitus, range of motion was normal, and alignment was normal. Ligaments were intact and there was no instability or swelling of either knee joint.
CONSIDERATION OF THE ISSUES
The Panel is satisfied based on the contemporaneous clinical records that the claimant sustained an injury to his cervical, thoracic and lumbar spines. It is the Medical Assessors’ clinical judgment that Mr Ullah sustained soft tissue injuries to his neck, upper and lower back.
The Panel is not satisfied that there is any reliable evidence of any pre-existing spinal condition. There are no pre-accident records, and the Medicare and PBS records were denied by the claimant as relating to him.
The Panel is not satisfied the claimant sustained frank or specific injuries to his shoulders for the following reasons:
(a) the claimant did not, in his claim form, include shoulders in the description of the injuries sustained in the car accident;
(b) in his most recent certificate of fitness, Dr Girgis did not include a reference to shoulders in his diagnosis;
(c) the claimant does not appear to have mentioned shoulder pain for eight or nine months after the accident. If the claimant had sustained a frank shoulder injury, the Panel would expect one of his doctors at some stage to have recorded at least one mention of it;
(d) the Panel has not been taken to any radiology of the shoulders performed at any time since the accident;
(e) the shoulder joint examination did not reveal any sign of impingement and there was no acromioclavicular joint tenderness, crepitus or instability of either shoulder joint with a good range of passive movements;
(f) there was no wasting of any of the musculature of the shoulder, and
(g) the claimant stated he had pain in his shoulders but when asked to point to the part of his anatomy he meant by that, he pointed to his shoulder girdle generally and not specifically his shoulder joints.
Any impairment to the claimant’s shoulders as a result of any neck or thoracic injury will be considered below.
IMPAIRMENT ASSESSMENT
Spinal impairment generally
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the DRE method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a) cervical;
(b) thoracic, and
(c) lumbar.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five DRE categories, and a number of indicia provided (see Table 6.7).
The most commonly considered DRE category is category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are also relevant.
A DRE II finding requires:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (such as shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
The DRE III category requires there to be radiculopathy which is defined in cl 6.138 as the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination:
(a) loss or asymmetry of reflexes (see Table 8);
(b) positive sciatic nerve root tension signs (see Table 8);
(c) muscle atrophy and/or decreased limb circumference (see Table 8);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is also anatomically localised to an appropriate spinal nerve root distribution.
Cervical spine
At the re-examination, Mr Ullah complained of neck tenderness and pain particularly in the upper trapezius and scalene muscle of the neck. There was however no guarding and no dysmetria present found at the examination.
Mr Ullah complained of generalised pain in his arms (but not his hands) when he uses his arms. He also complained of pins and needles and numbness in his hands (but not his arms). It is the clinical judgment of the medical members of the Panel that these symptoms do not satisfy the definition of radicular complaints as they are not specific and do not follow the complete distribution of a specific nerve root.
In terms of DRE III, as set out in paragraph 112 above, the claimant did not demonstrate any of the signs of a cervical spine radiculopathy.
The Panel is satisfied that the claimant has a DRE I = 0% WPI for his neck injury.
Thoracic spine
At the re-examination Mr Ullah was tender over parts of the thoracic spine but there was no muscle spasm or guarding, no dysmetria and again the claimant did not describe symptoms that would satisfy the definition of radicular complaints.
The medical members of the Panel found no signs of radiculopathy as documented in paragraph 115 above.
The claimant is assessed with a DRE I = 0% WPI for the thoracic spine.
Lumbar spine
At the re-examination, the lumbar spine was tender but there was no spasm or guarding.
The claimant complained to the Medical Assessors of low back pain with pain down the back of his right leg as far as the knee. He reported no left leg pain but pins and needles and numbness in both feet, not just the right foot.
The Panel notes that Dr Girgis also had a record of right leg radiating symptoms. Dr Darwish noted the radiology demonstrated possible left sided impingement and degenerative changes in the lumbar spine. It is the clinical judgment of the Medical Assessors that while the claimant’s symptoms in his left foot might be non-verifiable radicular symptoms (due to their non-specific nature and absence of symptoms in the left leg) the Medical Assessors do accept that the claimant’s consistent complaints of right sided symptoms (pain in the back of the leg and symptoms in his right foot) do follow a L5/S1 nerve root distribution.
The claimant does not however have a lumbar radiculopathy. The examination by the Medical Assessors did not reveal any alteration to the claimant’s lower limb reflexes, no positive sciatic nerve root tension signs, no muscle atrophy, no muscle weakness and no reproducible sensory loss on testing.
The claimant therefore has a DRE category II 5% WPI for the lumbar spine injury.
Shoulders
At paragraph 132 above, the Panel was not satisfied that the claimant sustained a frank injury to either of his shoulders. However, the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[5] held that if any impairment to an injured persons upper limbs (e.g. shoulders) or lower limbs results from an injury to the neck or lower back, then, that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[6]
[5] [2011] NSWSC 351.
[6] This is referred to as the “Nguyen Principle”.
If the claimant does have an injury to his shoulders or his neck causing shoulder impairment, the Panel notes cl 6.50 of the Guidelines provides as follows:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a) a goniometer should be used where clinically indicated;
(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements;
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions;
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines), and
(e) 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.
In accordance with cl 6.50(d) the Panel notes following variations and inconsistencies:
(a) the claimant’s restriction of active motion in both shoulders within the examination was inconsistent when compared to passive and the observed range of motion;
(b) the claimant’s restriction of motion in both shoulders was not consistent within the examination of the shoulders as reported in paragraph 124 above, and
(c) the claimant’s degree of restriction of motion has varied greatly over time. While the claimant explains this by reference to his medication and activity level the medical members of the Panel in particular do not accept this, as the degree of variation is so significant in particular noting that the cliamant has, by his own admission not been working for the last three weeks, does not perform any household duties and is not active. The medical assessors would expect on the basis of three weeks rest that the claimant would have an equal or greater range of motion than demonstrated at previous examinations when he was not as rested.
The Panel is not satisfied that the range of motion model can be used as a “valid parameter” of impairment assessment. In accordance with cl 6.50(e), the Panel does not accept that the claimant has a current impairment as a result of the injury to his neck. The significant loss of range of motion of the shoulders is not, in the clinical judgment of the medical members of the Panel medically plausible or explainable by any injury caused by the motor vehicle accident for the following reasons:
(a) there is no radiology to explain the symptoms and the gross restriction of motion. If the claimant’s restriction of motion was genuine, the Panel would expect to see features reported in the radiology including nerve root compression. The whole of spine MRI dated 6 December 2022 reports that “the foramina are of reasonable size and the nerve roots exit normally”;
(b) on examination, when the claimant moved his shoulders, the claimant did not report any specific cervical symptoms and in particular he did not report any neck pain limiting his active shoulder movements which would be expected if in fact it was a neck problem that was causing the shoulder impairment;
(c) on examination there was no atrophy of the shoulder muscles which would be expected if the claimant had a true restriction of motion as significant as that demonstrated at the re-examination, and
(d) the first report of shoulder symptoms recorded in the GP notes was in November 2021, more than eight months after the motor accident. In the nearly two years after that, Dr Girgis recorded on 25 separate occasions a normal range of shoulder motion.
CONCLUSION
The Panel finds that the claimant sustained a WPI of 5% based on the following:
(a) cervical spine DRE I 0%;
(b) thoracic spine DRE I 0%;
(c) lumbar spine DRE II 5%;
(d) left shoulder no impairment resulting from the accident, and
(e) right shoulder no impairment resulting from the accident.
As Medical Assessor Wallace found a 10% WPI, it follows that his certificate, including his combined certificate must be revoked, and a fresh certificate issued.
ATTACHMENT A - COMPARATIVE SHOULDER MEASUREMENTS
| Left Shoulder | Dr Dias 15 Feb 22 | Dr Machart 15 Aug 23 | Dr Keller 14 Sep 23 | MA Wallace 5 Dec 23 | Review Panel 2 Oct 24 |
| Flexion | 120 | 120 | 100 | 120 | 80, 60, 60 |
| Extension | Normal 50 | 30 | 30 | 30 | 35, 45, 50 |
| Abduction | 120 | Not stated | 100 | 130 | 90, 80, 70 |
| Adduction | Normal 50 | 20 | 40 | 30 | 45, 30, 40 |
| Internal rotation | Normal 90 | 60 | Normal 90 | 70 | 90, 80, 50 |
| External rotation | Normal 90 | Normal 90 | Normal 90 | 60 | 0, 35, 20 |
| Right Shoulder | Dr Dias 15 Feb 22 | Dr Machart 15 Aug 23 | Dr Keller 14 Sep 23 | MA Wallace 5 Dec 23 | Review Panel 2 Oct 24 |
| Flexion | 120 | 120 | 90 | 120 | 75, 70, 10 |
| Extension | Normal 50 | 30 | 30 | 30 | 40, 35, 20 |
| Abduction | 120 | Not stated | 90 | 130 | 70, 70, 80 |
| Adduction | Normal 50 | 20 | 40 | 30 | 40, 35, 40 |
| Internal rotation | Normal 90 | 60 | Normal 90 | 70 | 80, 40, 70 |
| External rotation | Normal 90 | Normal 90 | Normal 90 | 60 | 20, 25, 20 |
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